Arlen Cerda
25 de septiembre 2020
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On September 22, deputies of the governing Sandinista party presented the draft of a new law to the National Assembly. This “Law to regulate foreign agents” aims to “segregate” Nicaraguans by tacitly creating two categories of citizens.
Under its provisions, “true” citizens would be differentiated from “foreign agents”. The proposal would suspend the latter’s political rights and allow the confiscation of their goods and patrimonial rights. This was the analysis of Nicaraguan lawyers, after examining the wording of the proposed law.
The bill’s “rationale”, cites the defense of “sovereignty” and “State security”. It then proposes “establishing a legal framework to regulate persons or legal entities that depend on foreign interests and financing.” Specifically, it targets such groups whose “activities result in the interference of governments or foreign organizations in Nicaragua’s internal affairs.”
Clearly, the objective of this law is to spread fear and tighten control. Certain citizens would be targeted for observation, under suspicion of criminal activities. These citizens would be mandated to “register as foreign agents as if they weren’t Nicaraguans.” So warns a Nicaraguan attorney.
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The lawyer, who asked to remain anonymous, alerts that the term “foreign agents” is used as a stigma. “The intent is to make us think that a Nicaraguan would defend foreign interests in the country.” Further, it separates citizens into two groups. There would be the “true Nicaraguans”, according to the definition of Daniel Ortega and Rosario Murillo. The blue and white majority would “not deserve to be called Nicaraguans”, because they oppose them. “That creates a legal ghetto within the country,” the lawyer concluded.
Unconstitutional and aberrant
Attorney Martha Patricia Molina of the Pro-Transparency and Anti-Corruption Observatory considers the proposed law “unconstitutional”. She specifies that it violates at least nine articles of the Nicaraguan Constitution. [Articles 5, 6, 44, 48, 50, 51, 52, 55]
“It’s a law that aims at ending the badly interpreted foreign intervention,” the lawyer affirmed unequivocally, in an analysis posted on social media.
Lawyer Alberto Novoa also offered some details to Confidencial regarding the law’s unconstitutionality. “Article 25 establishes the right of all people to individual liberty, security, and recognition of their person and legal capacity.”
The Plataforma Nicaraguense de Redes de ONG [Nicaraguan platform for NGO networks], made up of over a hundred organizations, called the initiative “aberrant”. They called on Nicaraguans and the international community to “demand it be shelved. It hasn’t been consulted and its basic premise is politicized. Above all, it aims to become one more weapon of the police state against civil society.”
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“This proposed bill violates our constitutional (…) right to privacy of information, our right to work, and the right of association. Moreover, the Nicaraguan government now continues its push to divide Nicaragua in two. They wish to split the citizens into those who sympathize with the government in power and those who don’t. The latter would be obligated to declare the movement of their funds, activities, and working ties.”
The Platform considers that the State is bullying Nicaraguans by “seeing us as citizens under suspicion.” The law encourages viewing certain Nicaraguans “as ‘foreign agents’ who ‘put at risk the country’s security’.’’
Nicaragua remains a de facto police state. Beginning in September 2018, the Ortega regime prohibited anti-government protests. At the same time, they organized constant police vigilance of the capital and several cities in Nicaragua. In addition, there’ve been complaints of political espionage practiced against citizens.
The seriousness of this proposed law, the aforementioned Nicaraguan lawyer maintains, is the threat to citizens’ rights. According to Article 12 of the draft, once a Nicaraguan registers as a “foreign agent” they lose their political rights. Their economic rights are also put at risk, due to the Interior Ministry controls the law proposes. The law even allows the confiscation of possessions, despite the Constitution’s prohibiting this practice.
Unconstitutional annulment of political rights
Article 12 of the proposed law establishes restrictions for those who register as “foreign agents”. Such persons must automatically “abstain, under penalty of legal sanctions, from intervening in issues, activities or topics of internal politics.” This includes the prohibition of “financing or promoting financing from any kind of organizations, movement, political party, coalition or political alliance or association” in Nicaragua.
Further, these “foreign agents” are forbidden to “become functionaries, public employees or candidates to public positions of any kind.” This prohibition extends up to a year after being removed from the “registry of foreign agents”. All this would be subject to the verification of the Interior Ministry.
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National elections in Nicaragua are scheduled for the first Sunday in November of 2021. With this in mind, the opposition has been demanding electoral reforms to guarantee a fair and transparent process.
“From the outset, [the proposed law] is a warning for the Civic Alliance and the National Coalition. Under its provisions, they can’t serve as functionaries, public employees, or candidates for any type of public office,” Molina believes.
This contradicts Article 51 of Nicaragua’s Constitution. That article states: “citizens have the right to choose and be chosen in periodic elections and to opt for public office.” The Constitution then establishes certain limits to this right. These limits include active police and military, Nicaraguans who have acquired another nationality, and functionaries responsible for the electoral process.
Who would these “foreign agents” be?
In Article Three of the draft, the law offers an all-encompassing definition of “foreign agents”. They include anyone in Nicaragua who “serves or works as an agent, representative, employee or servant, (…) in any activity under the orders, requirements, instructions, or under the direction, supervision, or control of a foreign organization or of a person or legal entity whose activities are directly or indirectly supervised, directed, controlled, financed or subsidized totally or partially by foreign governments, capital, companies, or funds, be it directly or through physical or legal third parties.”
Those obligated to register, include, “advisors, public relations staff, advertising agencies, workers for information services or political consultants.” The proposed law doesn’t establish any exceptions for the Constitutionally-guaranteed public rights and liberties. It ignores the rights to freedom of information, expression, and the press. All of these rights have been constantly violated by the regime for the last two years.
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The exceptions established in the proposal include those receiving retirement pensions from other countries and those who receive family remittances. It also exempts factories and foreign businesses with branches in Nicaragua, and factories and supermarket chains with foreign investment. Finally, it excuses those who maintain business relations under active agreements, treaties, or accords.
However, attorney Martha Patricia Molina warns: “if the Interior Ministry considers someone a foreign agent, they’ll apply the law.”
Former attorney general Alberto Novoa concludes, “it’s an invasion of privacy – that of individuals as well as that of companies or NGOs”.
Broad powers are given to the Interior Ministry
The proposed law directs the Interior Ministry to mandate and oversee the registration of these “foreign agents”.
This Ministry already regulates and supervises the activities of the non-governmental organizations in Nicaragua. Such organizations must submit annual reports regarding their statutes, compliance, and finances.
However, Novoa warns, the proposed law would affect any Nicaraguan who receives outside funding or support. “It establishes a presumption of guilt. It presumes that the funds are (…) for the benefit of organizations or persons for illicit activities,” Novoa believes. To him, the initiative is one more encirclement in Nicaragua’s police state.” It gives the Interior Ministry the authority to criminally investigate anyone,” to exercise control over people and their assets.
Article Six of the bill indicates that the “foreign agents” should inform the Ministry previously of any offer their “foreign superiors” make. They should then explain what activities said funds and assets will be used.
In this way, Novoa feels, the law broadens the “universe” of those subject to the Ministry’s regulations. It gives them “legal power to be able to intervene in the private life of each citizen.” Novoa emphasized: “that would be the legality, which is different from the legitimacy.”
Obligation to register and provide monthly reports
The proposal affects certain organizations, associations, or “natural or legal persons, be they Nicaraguan or of other nationalities.” These would be required to register as “foreign agents” with the Interior Ministry. They would be mandated to register if they “receive funds, goods, or any other object of value (…) from foreign governments, agencies, foundations, societies, or associations of any type or nature.”
“All organizations, agencies or individuals that work, receive funds or respond to organizations (…) controlled, directly or indirectly, by foreign governments or entities, should register as foreign agents,” the initiative indicates.
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Article Seven obligates those covered to present a “documented, detailed and verifiable” report of expenses each month. The “foreign agents” should also proportion the “name of the foreign governments, foreign political parties, companies and other physical or legal entities that finance, propose funds or in any way facilitate (…) means for them to carry out their work.” It also forbids anonymous donations.
Article Thirteen of the proposal authorizes the Interior Ministry to compel the registration. If so ordered, the person or organization has five days to register or “be penalized”. In the case of legal entities, the sanction could include a request to cancel their legal status. It doesn’t exclude criminal charges.
Refusal to register, the proposal warns, would authorize the Department for the Registry of Foreign Agents” to intervene in the funds, goods, and real estate of the person.” This, attorney Molina maintains, “is a warning of intention to confiscate.”
According to the proposal, the “foreign agents” will have sixty days to register after the law goes into effect. The bill has been sent to be “consulted” by the Commission for Production, Economics, and Budget. The committee is headed by two FSLN deputies: Walmaro Gutierrez and Jose Santos Figueroa.
Civic Alliance issues “energetic repudiation”
On September 22, the day the proposal was unveiled, the Civic Alliance issued a communique “energetically repudiating” the proposed law. “We note with great concern that they continue following the path of inappropriate use of institutions and laws. These have the intention of criminalizing the opposition, based on political and not legal objectives. It also exercises undue control over the financial system,” he warned.
In the judgement of the opposition organization, “this initiative is one more instrument for the dictatorship to continue harassing and persecuting opponents.” The Alliance urged the public to denounce the proposal, They also noted that this is yet more evidence of the “fiscal terrorism” being practiced against Nicaraguans.
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Former Attorney General Novoa feels that if the initiative is approved under the proposed terms, Nicaraguans will be left with little recourse. They could file appeals for unconstitutionality. However, he recalled, this and other kinds of appeals are routinely “annulled by the powers that be. There’s not one sole State Branch not under the control of Daniel Ortega and Rosario Murillo.”
The other option, he indicated, is to continue the denunciations, which add to the regime’s many violations of Nicaraguan’s human rights.
