CHAPTER X: THE RIGHT TO POLITICAL PARTICIPATION AND THE ELECTORAL PROCESS
1. The present chapter is integrally related to the analysis in chapter I,
above, of the legal and institutional guarantees in place in Guatemala, given
that electoral institutions and procedures safeguard the right to political
participation and the democratic system which guarantees the range of other
protected rights. There is a profound hemispheric consensus that respect for
the dignity of the individual and protection of rights on the one hand, and
the exercise of participatory democracy and political rights on the other are
obligations within the region and within each member state.
The analysis which follows examines how the important procedural goal of technically
free and fair elections is being met, while the substantive goal of inclusive
participation in national political life requires the adoption of further measures.
A. The Legal and Institutional Framework for the Exercise of Political Rights
2. The political rights and duties of Guatemalan citizens are set forth in Article 136 of the Constitution, which provides for the right to register as a voter, to vote and be elected, to watch over the liberty and effectiveness of suffrage and the purity of the process, to seek public positions, participate in political activities, and to defend the principle of non-reelection to the Presidency. In accordance with Article 15 of the Elections Act, active duty members of the military and police corps are prohibited from voting, as are persons who have been appointed to any military commission or task, or whose exercise of citizenship has been suspended or revoked. Voting is not compulsory.
3. Pursuant to Article 223 of the Constitution, the State guarantees the formation and functioning of political organizations, which may be subjected only to those limitations provided by law. Once elections have been convoked, neither the President, nor members of the executive, nor mayors or municipal functionaries may utilize public works or activities for the purpose of political propaganda.
4. Article 23 of the American Convention recognizes and protects the right
and duty of every citizen to take part in the political life of her nation.
This Article provides in section 1(a) that each citizen has the right “to take
part in the conduct of public affairs, directly or through freely chosen representatives.”
Pursuant to section 1(b), each citizen has the right to vote and stand for election
in “genuine periodic elections, which shall be by universal and equal suffrage
and by secret ballot that guarantees the free expression of the will of the
voters.” Further, under section 1(c) each citizen must “have access, under general
conditions of equality, to the public service of his country.” Section 2 provides
that the exercise of such rights may only be regulated “on the basis of age,
nationality, residence, language, education, civil and mental capacity, or sentencing
by a competent court in criminal proceedings.” The exercise
of the foregoing rights presupposes, in turn, the ability of the citizenry to
exercise other fundamental rights, such as freedom of expression, association
B. Pending Reforms to that Framework
5. Within the framework of the peace accords, the Agreement on Constitutional Reforms and the Electoral Regime recognizes that, while “[e]lections are the essential instrument for the transition which Guatemala is currently making towards a functional, participatory democracy,” the process is marred by serious shortcomings which particularly include barriers that impede citizens’ access to registration and voting, and the lack of information and the need for greater transparency in the campaigns. The Agreement spells out the principal areas requiring reform and a basic mechanism for effectuating the changes.
6. Pursuant to the terms of that Agreement, the Supreme Electoral Tribunal (TSE) established an Electoral Reform Commission in 1997, and tasked it with developing proposals on issues including documentation, electoral rolls, voting, transparency and publicity, information campaigns and institution-building, in line with basic principles established to further the end of participatory democracy. The Electoral Reform Commission elaborated a comprehensive set of reform proposals, with technical assistance from a number of sources including the Organization of American States and the Inter-American Institute of Human Rights. While the Supreme Electoral Tribunal presented these proposals to Congress in 1998, they were not dealt with in time for the elections held in 1999, and remain a critical pending issue for the progress of democracy-building in Guatemala.
7. The sections which follow analyze the first national electoral processes
following the signing of the peace, namely the referendum on reforms to the
Constitution held in May of 1999, and the general elections held in November/December
1999. These electoral processes were monitored by a range of actors including
the Office of the Ombudsman for Human Rights of Guatemala, the OAS, the United
Nations and the European Union. Both were characterized by observers as free
and fair overall, but continued to reflect the longstanding deficiencies in
the electoral process identified in the Agreement on Constitutional Reforms
and the Electoral Regime and addressed by the Electoral Reform Commission in
its proposals for reform.
C. Political Rights during the 1999 Referendum on Constitutional Reforms
8. The first national vote after the signing of the peace was the referendum held on May 16, 1999 to approve or reject the package of reforms to the Constitution approved by the Congress. The reforms had been elaborated primarily on the basis of the Agreement on Constitutional Reforms and the Electoral Regime, which identified key constitutional provisions requiring modification. These modifications were to provide the “substantive, fundamental basis for the reconciliation of Guatemalan society within the framework of the rule of law, democratic coexistence, full observance of and strict respect for human rights, [and the] end to impunity.”
9. After extensive debate, the Congress of the Republic approved a package of amendments on October 16, 1998, and, pursuant to the terms of the Constitution, presented them to be approved or rejected through a national referendum. The 50 reforms proposed included a number of transcendental importance for the peace process and the consolidation of a participatory democracy. The Agreement provided the roadmap for the principal reforms, including, inter alia, the recognition of the Guatemalan State as a national unity multi-ethnic, multicultural and multilingual in nature, enactment of essential improvements in the justice system, the definition of the role of the army in a civilian democratic society, and the enactment of other key changes with respect to the security forces and the structure of the State. It must be noted that many organizations, including the Commission to Strengthen Justice, the Multiparty Commission for Constitutional Reform, Mayan organizations and others, participated in the debate on and elaboration of the reforms.
10. The referendum was delayed by the declaration of a state of public calamity and suspension of certain constitutional guarantees in the wake of Hurricane Mitch, and a legal challenge to the constitutionality of the reforms as proposed in the form of a single question. On February 8, 1999, the Constitutional Court issued a ruling finding the proposed formulation of the reforms as a single question to be unconstitutional. The Congress then adopted a new decree formulating the reforms into the four questions, based on subject matter, that were presented in the referendum.
11. The voting on May 16, 1999 was reported to have been well organized and peaceful. Election officials carried out their functions efficiently and effectively, and agents of the national civilian police maintained a presence to help ensure order. The referendum was evaluated by observers as free, clean and transparent. Each of the four questions was answered by the population in the negative.
12. The most notable characteristic of the referendum was the low voter turnout, with only 18.55% of registered citizens casting their vote. This has been attributed to a number of factors. Some of these concern barriers to full participation within the electoral system as a whole. Such barriers have contributed to a low level of voter participation in many elections, and will be discussed further below. The exceptionally low participation in the referendum process is also due to certain interrelated factors specific to that process.
13. First, there was little involvement on the part of officials, political parties or the media. While the principal political parties embraced the reforms in name, they failed to follow through with the kinds of support normally forthcoming during electoral processes. To cite one example, they did not provide the transportation to polling cites often seen during general elections. Further, the process demonstrated that the institutions of civil society remain weak in certain aspects of their capacity to mobilize public opinion and participation.
14. Second, given this disengagement of the sectors normally involved in the electoral process, citizens lacked information on the substance of the amendments and the implications of the vote. Observers reported interviewing voters who indicated that they had no substantive understanding of the amendments being considered. This was true even in the case of some local officials guiding the process. While there was some publicity in the days just prior to the voting, it concentrated on the “yes” or “no” vote without addressing the substance of the issues, thereby generating confusion among the voters.
15. Third, given what MINUGUA termed “political realities,” much of the non-indigenous and urban population felt they had no stake in the reforms concerning multiculturalism and the role of the military. The rural departments most affected by the internal conflict voted in favor of the reforms, a manifestation of their hopes and expectations in relation to the peace accords. However, some of those same zones were marked by the lowest levels of voter participation. In contrast, Guatemala City had a much higher rate of participation and voted resoundingly against the reforms. Fourth, certain sectors engaged significant resources in opposing the reforms as inimical to established interests.
16. The Ombudsman for Human Rights characterized the levels of participation in the referendum as reflecting that important decisions are taken in Guatemala City and department seats, so that the ladino population imposes its will on the indigenous population. MINUGUA noted the contradictory interests at play, and cautioned that the results revealed a serious division in the country: in municipalities where indigenous people were in the majority, people voted `yes’ to the reform, whereas in other municipalities the majority voted `no.’” In its observations on the draft report, the State indicated for its part:
that rather than a rejection, this process was viewed by the population with indifference, as reflected in the low level of voter turnout, for the following reasons: a) the commitment of the peace accords contemplated 12 reforms, while 50 were proposed for approval; b) social and political actors provided the population with necessary information, but it was never sufficient to explain the contents of the 50 reforms proposed; c) the previous Government did not commit its political will to ensuring the approval of the reforms.
17. The Commission has taken full note that the available information is consistent
in indicating that the referendum itself was effectuated in a technically correct
manner. The Guatemalan people had the right and the duty to make the decision
on the adoption or rejection of the proposed reforms. The Commission deeply
regrets that the conditions were not in place to encourage the engagement of
all sectors in the vital questions to be decided, or to ensure that all voters
had full information about the significant choices to be made. The defeat of
the reforms does not, however, signify that the agenda for peace has been diminished.
To the contrary, the Guatemalan State has manifested its commitment to continue
the ongoing advances through the necessary administrative, legislative and judicial
action, and civil society continues to act as an engine driving that process
D. Political Rights during the 1999 General Elections
18. The first general elections following the signing of the peace took place on November 7 (first round) and December 26, 1999 (second round), and included the offices of President and Vice President, Deputies of the Congress and the Central American Parliament, and municipal mayors. Overall, they were evaluated as free, fair and transparent, and showed an improvement over those held in 1995, most notably in that the level of voter participation increased. In the first round of voting, 53.95% of those registered participated, compared to 46.8% in 1995, and in the second round, 40.37% participated, compared to 36.3% in the previous general elections.
19. These were the first elections in which the URNG, the former insurgent movement, participated as a political organization. After registering as a political party, the URNG entered into alliance with other organizations to form the New Nation Alliance (Alianza Nueva Nación). In total, twelve political parties and two alliances competed in the elections. Nine parties presented presidential candidates. As the OAS observer mission noted, the increased level of inclusion and participation lent the process an important degree of legitimacy and strength.
20. The two rounds were generally reported to have taken place normally, in a peaceful and orderly way. Voters were able to exercise their franchise free of intimidation or coercion. Polling station officials operated efficiently and effectively, and the presence of National Civilian Police agents helped to maintain order. The efficiency, organization, and measured action of the TSE were commended by national and international observers. A number of minor technical difficulties were corrected between the rounds of voting.
21. Some irregularities were reported. One situation concerned allegations of vote-buying and coercion in the mayoral race in Quetzaltenango. Pursuant to those allegations, the local electoral board annulled that election, but upon review, the TSE subsequently declared it valid. Observers reported isolated cases of physical aggression and threats, some attributable to public officials or candidates, and expressed particular concern with respect to threats against personnel of the TSE. MINUGUA also noted a high incidence of verbal attacks in the process, in prejudice to the need for open debate on the issues.
22. While the voting itself was not marred by significant reports of violence, the days immediately following the first round were marked by serious incidents of disorder and violence related to the electoral process. MINUGUA reported such incidents in 38 and the OAS Mission in 32 municipalities, respectively. These incidents included massive protests, and the burning of offices, homes and election paperwork. They were largely attributed to the refusal of certain sectors to accept the results of municipal voting, particularly in cases where mayors were reelected. The violence reported thus did not stem from the campaign or the voting; rather, it represented a direct challenge to the results of voting processes deemed by the authorities to be free and fair.
23. Further, there were allegations against the governing party concerning
the use of official vehicles for electioneering, the use of the party’s colors
in the painting of public works and the posting of official propaganda for electoral
purposes. MINUGUA indicated special concern in relation
to denunciations that public officials had pressured residents of Guatemala
City to join a political party with promises to legalize ownership of or threats
to take away land. While allegations of electronic fraud
and that public transportation in the capital had been intentionally disrupted
to influence the vote received substantial publicity, MINUGUA investigated and
found no violation.
E. Analysis of Areas in which Further Steps need to be Taken
24. As the peace accords establish, elections are essential for Guatemala’s transition to a functional, participatory democracy. Improvements in the electoral regime are identified in that accord as necessary for strengthening the legitimacy of public authority and facilitating the country’s democratic transformation.
25. The importance of the political opening manifested in the 1999 electoral processes must not be underestimated. In the context of the authoritarian political history of Guatemala, the inclusion of new political actors is tremendously significant, and builds on advances initiated with the 1995 general elections. The participation of the URNG as a political force could only have been achieved through the signing of the Firm and Lasting Peace, and stands as a milestone in the process of establishing an open and participatory system of government in Guatemala. The fact that party and social organizations are free to organize, and that there is open debate and expression provide the conditions necessary for further advances in the consolidation of democracy in Guatemala.
26. Further, a comparison of voter registration data relative to the general elections of 1999 and 1995 reveals some encouraging indicators in terms of the process as a whole. Voter registration rose approximately 20% in the interval, some 5% more than the growth in the general population.  Further, while it was estimated in 1995 that approximately 30% of eligible voters were unregistered, in 1999 that figure was estimated at 18%. (In practical terms, however, it must be noted that there are several hundred thousand voters formally listed in the registry who have not completed the full process, which is lengthy and cumbersome, and therefore are not permitted to vote.)
27. It is also encouraging that the increase in voter registration and participation in the general elections of 1999 reflects a slight increase in the participation of women and the indigenous population in particular. With respect to the latter, available data indicates that in a number of largely indigenous zones the level of voter registration has risen at a level above the national average. The data with respect to women, however, shows only very small gains. Women account for some 42.62% of registered voters, while they represent 52% of the national population. The disparity is more marked in zones with larger indigenous and illiterate populations. The Commission congratulates the State and non-state sectors that have employed intensive efforts to foment greater political participation by all sectors, and encourages them in their ongoing efforts.
28. While these indicators show that progress is possible, comprehensive action must be taken if Guatemala is to overcome its historically low levels of voter registration, engagement and participation. In this sense, the process as a whole continues to exclude rather than include significant sectors of society. The Ombudsman for Human Rights has aptly indicated that this sense of exclusion should be the point of departure for review of the legal framework underlying these processes. In this regard, in its observations to the draft report, the State reported on work being done by the departmental delegations and Municipal Subdelegations of the Citizen Registry to register citizens as voters, and on a pilot plan in the municipality of Guatemala City to lessen the time for delivery of the registration record to the citizen. The objective reported was to expand the system of the pilot plan to all the departmental seats of the country.
29. The electoral processes of 1999 demonstrate that certain longstanding problems must be resolved in order to develop an electoral system in which all citizens eligible to vote have access to the information and facilities necessary to ensure their effective participation. First, many citizens eligible to vote remain unregistered. As the system currently stands, registration is cumbersome and time consuming. Guatemalans are required to register with multiple offices to receive identification, voting and other documentation. A significant percentage of the population remains unable to register because they lack formal identity documents. In rural areas, voter registration offices are located exclusively in municipal administrative centers, further impeding access by requiring citizens to travel long distances, often at great personal expense.
30. Second, certain broad sectors of the population, most notably women and indigenous citizens, have traditionally not registered or participated in political life in proportion with their representation in society. This stems in significant part from historical patterns of stereotyping and discrimination which have obstructed their full participation. For the large segment of the population that speaks indigenous languages, the fact that 74% of election officials speak only Spanish is an especially serious barrier. The linguistic barrier remains a principal obstacle to the ability of the indigenous population to exercise their political rights. In the presentation of its comments on the draft report, the State indicated that attention was being given to the naming of Delegates and Subdelegates who know the language spoken in the respective locality.
31. Third, as polling stations are located exclusively in municipal administrative centers, many rural citizens can only cast their ballots at great effort and expense. During the general election, for example, voters questioned by observers in Huehuetenango reported having to walk for two to three hours or more to cast votes, and those who arrived by bus took almost as long. Transportation isn’t always available and can be prohibitively expensive, as can lost hours of work.
32. Fourth, the history of the conflict and political repression generated a strong disenfranchisement among significant sectors of the population that has yet to be overcome. Civic education programs are one means to address this legacy, but initiatives in this regard remain very limited. Independently of this question, many voters lack basic information concerning the electoral process. Citizens who are illiterate or do not have ready access to mass media are particularly restricted in their ability to gather information and participate.
33. Finally, the electoral processes discussed above also reveal that the legal system does not respond adequately to acts which interfere with the right of citizens to participate in free and fair elections. While the TSE received and investigated complaints about irregularities, the Criminal Code does not ensure the corresponding investigation, prosecution and punishment of such acts. A number of sources reported that, because acts such as illegal campaign financing are not codified as crimes, it was unclear what, if anything, would be done with denunciations processed by the TSE.
Conclusions and Recommendations
34. In light of the fundamental principle set forth in Article 23 of the American Convention that “[e]very citizen shall enjoy the right and opportunit[y] … to vote … by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters,” the Commission calls special attention to the urgent need to enhance access to voter registration, voter information and polling stations, especially in the rural areas of the country and for the sectors of the population that remain underrepresented as voters. Access to these means of political participation is a fundamental component of the quest to consolidate a participatory democratic system of government.
35. Critical reforms remain pending, and require urgent action to ensure that they are adopted and made operational prior to the next elections. As stressed by the President of the Supreme Electoral Tribunal in the act of delivering the credentials to the President and Vice President, accomplishing these reforms requires political, legal and financial support. In relation to the question of legal support, in particular, the Commission encourages the Congress to expedite its review of the legislative reform proposals offered by the Superior Electoral Tribunal in 1998 as one means to advance with these critical challenges.
36. On the basis of the foregoing analysis and conclusions, the Commission recommends that the State:
1. Adopt the measures necessary to streamline the voter registration process; a necessary step in the process of amplifying voter registration is improving and streamlining the process to obtain personal identification.
2. Devote particular attention to facilitating the registration of citizens in rural areas and those who have otherwise been marginalized from full participation in the political life of the country, particularly women, the indigenous sector, and illiterate citizens, including through the use of mobile voter registration initiatives.
3. Facilitate the process by which citizens can update their voter registration information to reflect a change of address, so as to be able to vote in the area where they live.
4. Promote initiatives designed to ensure that all voters obtain the information they need to make informed political choices, and that attention be given to implementing civic education programs during non-electoral periods with a view to enhancing popular participation in national political life, including through the dissemination of written and oral information prepared in indigenous languages in the corresponding zones of the country.
5. Take steps to recruit additional electoral personnel with knowledge of indigenous languages, to ensure that indigenous citizens are able to freely and fully exercise their political rights.
6. Take measures to improve the access of rural voters to polling stations, including through establishing additional polling locations in those areas, and increasing access to transportation on voting day.
7. Adopt the legislative and other measures necessary to define electoral crimes so that acts which impede the exercise of political rights by the citizenry through free and fair elections are subject to the investigation, prosecution and punishment required to safeguard those rights.
8. Adopt the fiscal and other measures necessary to provide the TSE with the resources and support it requires to effectively exercise its vital role in the consolidation of participatory democracy.
Notes Ch. X_________________________
 See, e.g., Charter of the Organization of American States, as amended by the Protocol of Buenos Aires (1967), Protocol of Cartagena de Indias (1985), Protocol of Washington (1992), and Protocol of Managua (1993); Declaration of Santiago, Chile, 5th mtg. Of OAS Ministers of Foreign Afairs, OEA/Ser.C/II.5 (Aug. 12-18, 1959); AG/RES. 1080, Representative Democracy, OAS GAOR, 21st reg. Sess., 5th Plen. Sess., OEA/Ser.P/XXI.O.2 doc. 2739/91 rev. 1 (June 4, 1991).
 The Commission has dealt with the observance of political rights in a number of its reports on the situation of human rights in Guatemala, see generally introduction, notes 3 and 4, citing previous reports, and has dealt with the specific question of permissible limitations on the right to stand for elections in the case of José Efraín Rios Montt, who presided over the de facto government of Guatemala from 1982-83. See IACHR, Report Nº 30/93, Case 10.804, Guatemala, Oct. 12, 1993, in Annual Report of the IACHR 1993, OEA/Ser.L/V/II.85, doc. 9 rev., Feb. 11, 1994.
 See generally, Guatemala, Paz y Democracia: Informe de la Comisión de Reforma Electoral (1998); Organización de los Estados Americanos, Compilación de Propuestas de Reformas a la Ley Electoral y de Partidos Políticos (1998), and Compilación de Documentos Técnicos de Análisis (1998).
 Agreement on Constitutional Reforms and the Electoral Regime, Section I.
 Question 1 concerned the nation and social rights, and among its reforms would have recognized the multi-ethnic, multilingual and pluricultural nature of the country, indigenous languages, and indigenous forms of spirituality and organization. Question 2 concerned the legislative branch, and among other things would have established a commission to oversee state intelligence activities. Question 3, concerning the executive branch, dealt with, inter alia, fomenting the participation of civil society in local decision-making through the development councils, redefining the role of the armed forces in relation to defense against external threats, and assigning the role of internal security to the National Civil Police. Question 4 concerned the judiciary, and would among other reforms have codified the concept of the judicial career, and the principle that justice is free and available, including in indigenous languages, and that corruption and impunity will be fought.
 See OAS, Report of the Electoral Observation Mission in Guatemala – Referendum of May 16, 1999 – Constitutional Amendements (“OAS Referendum Report”), OEA/Ser.G, CP/doc. 3355/00, 1 Sept. 2000, at “Conclusions and Recommendations;” MINUGUA, Fourth Report on the Verification of Compliance with the Peace Agreements, available at www.minugua.guate.net/informes, paras. 80-84.
 The Ombudsman for Human Rights particularly criticized the lack of political will of the Government to publicize the importance of the vote. See PDH, Informe Circunstanciado 1999, p. 34. MINUGUA highlighted the lack of involvement by the very political parties that had publicly committed themselves to the reforms. MINUGUA, Fourth Report, supra, para. 81.
 See generally, OAS Referendum Report, supra.
 Id., at “The Observation,” section 2.
 See, MINUGUA, Fourth Report on the Verification of Compliance with the Peace Agreements, A/54/526, 2 Dec. 1999, para. 81.
 PDH, Informe Circunstanciado 1999, p. 34.
 MINUGUA, Fourth Report on the Verification of Compliance with the Peace Agreements, supra, para. 80.
 See OAS, Report of the Electoral Observation Mission to Guatemala – 1999 Elections (“OAS General Elections Report”), OEA/Ser.G, CP/doc. 3356/00, 1 Sept. 2000, at sections IV.b, VI.a, IX.
 See, e.g., id., at V.f.
 Id., at VI.
 See OAS General Elections Report, at V.b. MINUGUA, Informe Electoral, para. 9. MINUGUA reported finding insufficient evidence to suggest the buying of votes. As of the date of the present report, an action of amparo against the decision of the TSE brought by the Community Civic Electoral Committee remains pending before the Supreme Court of Justice.
 See MINUGUA, Informe Electoral, para. 6.
 See OAS General Elections Report, at II.a; MINUGUA, Eleventh Report on Human Rights, A/55/175, 26 July 2000, at para. 42.
See OAS General Elections Report, at V.a; MINUGUA, Informe Electoral, para. 10.
 See OAS General Elections Report, at VII; MINUGUA, Tenth Report on Human Rights, A/54/688, 11 Jan. 2000, para. 21, Informe Electoral , para. 7.
 See MINUGUA, Informe Electoral; MINUGUA press communique of 29 Sept. 1999.
 See MINUGUA, Informe Electoral.
 MINUGUA, Informe Electoral, para. 13.
 MINUGUA, Informe Electoral, para. 14.
 TSE, Comunicado, supra.
 MINUGUA, Informe Electoral, para. 15.
 See, e.g., PNUD, Guatemala: los contrastes del desarrollo humano (1998) at table 29 (ranking Guatemala last in Latin America in the period from 1990-97).
 PDH, Informe Circunstanciado 1999, p. 35.
 See MINUGUA, Informe Electoral, at para. 18 (citing estimates that over 10% of the population lacks primary documentation).
 See MINUGUA, Informe Electoral, available at www.minugua.guate.net/comunicados, at para. 3.
 See OAS Referendum Report, “The Observation,” at section 1, MINUGUA, Informe Electoral, para. 3.
 OAS Referendum Report, supra, at 2.
 As of September 30, 1999, 30.87% of registered voters were illiterate. TSE, “Comunicado de Prensa No. 22-99, available at www.tse.org.gt.
 See, OAS General Elections Report, at VII.a.