18 The Nicaraguan Constitutional Experience Process, Conflict, Contradictions, and Change* Lee Demetrius Walker and Philip J. Williams he early literature on democratic size institutional choice and the substance of transitions in Latin America paid the constitutions themselves.2 scant attention to institutions; later, In their comparative discussion of dif- Tas scholars began to focus on the issue of ferent constitution-making contexts and for- democratic consolidation, emphasis shifted mulas, Linz and Stepan lay out six differ- from process to institutions including par- ent scenarios ranging from the most to least ties and party systems, electoral systems, confining conditions for democratic consoli- and parliamentary versus presidential forms dation. Two of the scenarios include cases © Copyrightof government. However, although by scholarsthe Endowmentfrom Latin America. Chile is an exampleof of of democratization in Latin America have the most confining case, characterized by the thestudied United the institutions Statesand institutional Institute“retention of a constitution of createdPeace by a non- frameworks that constitutions have created, democratic regime with reserve domains and they generally have neglected constitution- difficult amendment procedures.”3 Argen- making environments and processes and tina and Uruguay, on the other hand, provide their relation to democratic consolidation.1 more favorable contexts, in which the pre- Scholars of democratic transitions in Eastern vious democratic constitution was restored Europe have paid more attention to consti- “for reasons of speed, conflict avoidance, and tutions and democracy, but generally empha- the desire to call upon some legacies of his- torical legitimacy.”4 Linz and Stepan argue that the most favorable formula for demo- * The authors would like to thank John Booth, Da- cratic consolidation (Spain fits this pattern) vid Dye, Shelley McConnell, Kenneth Mijeski, and the members of the Constitution-Making Working includes a democratically elected constituent Group for their invaluable comments on an earlier assembly that freely deliberates and drafts a version of the paper. new constitution appropriate for democratic 483 484 Lee Demetrius Walker and Philip J. Williams consolidation. Ideally, the constituent as- in no position to challenge the Sandinistas’ sembly “should avoid a partisan constitution leadership of the revolutionary government. approved only by a ‘temporary majority’ that The constitutional process that followed leads a large minority to put constitutional the 1979 Nicaraguan revolution requires a revisions on the agenda, thereby making con- somewhat different theoretical lens than the solidation of democratic institutions more transition literature provides. McWhinney difficult.”5 Potentially divisive issues should argues that “within an existing nation-state, be resolved through consensus, and the con- a fundamental change in the existing social stitution should be approved by popular ref- and economic base, effected by popular revo- erendum to enhance its legitimacy. lution or similar cataclysmic political event, Linz and Stepan’s emphasis on consensus usually means a corresponding change in the recalls Przeworski’s argument that the cru- basic constitutional system and the postula- cial step in any transition to democracy is to tion of a new legal starting point, or Grund- establish an institutional compromise among norm, as the basic premise of the new con- the country’s principal political forces: De- stitutional system.”7 In Nicaragua, the new mocracy “cannot be a result of a substantive legal starting point was the construction of compromise, but it can be a result of insti- a popular revolutionary democracy. For the tutional compromise.”6 Groups enter into an Frente Sandinista de Liberación Nacional institutional compromise as the most prom- (FSLN) leadership, democracy consisted of ising framework to achieve their interests. more than simply contesting power through But institutional compromise is not always competitive elections; it meant transforming possible; in some cases of transition, not all society, including fundamentally restructur- the major political forces feel protected un- ing power and property relations as well as der democratic institutions. Groups on the increasing popular participation in the coun- right—either allied or opposed to the former try’s political, economic, social, and cultural authoritarian rulers—may be incapable of affairs.8 mobilizing support within civil society to Hyden refers to constitution making that defend their ideas and interests. Such histori- starts with the defeat or collapse of the pre- cal conditions make institutional compromise vious regime as the “replacement model.” ©difficult Copyright at best. by theThe Endowment sponsors of the transition—in this ofcase, The Nicaraguan case does not fit neatly the FSLN—“drawing on their rejection of into any of the scenarios sketched out by past legacies, set very specific parameters Linzthe and UnitedStepan. Moreover, Statesthe revolu- for Institute the direction of the constitution-making of Peace tionary nature of the Nicaraguan transition process.”9 The constitutional agenda is very complicated the possibility of a Przewor- much influenced by the precommitments skian institutional compromise. Unlike other that the victorious sponsors of the process transitions from authoritarian rule in Latin have made. In Nicaragua, the FSLN rejected America, Nicaragua is the only recent ex- the historical legacy of pact making associ- ample of a transition through armed struggle ated with previous constitutions. Any future and the only case in which accommodating constitution-making process would have to elite interests did not supercede the goals of incorporate public input and produce a docu- social and economic democracy. Allies of the ment that was relevant to ordinary citizens. Anastasio Somoza Debayle dictatorship fled According to McWhinney, after the new the country following the revolutionary take- legal starting point has been identified, “the over, while others on the right that partici- primary and secondary principles of the re- pated in the antidictatorial movement were sulting new legal order can be developed by a Framing the State in Times of Transition 485 process of logical deduction and application based on the popular democracy model, the as the basic norm progressively unfolds or nation’s ongoing conflict required consid- concretizes itself.”10 That is to say, the basic eration of other views.14 External pressure norms become self-enforcing. McWhinney’s from the United States and growing domes- logic is grounded in the notion that conflict tic opposition convinced the FSLN to make has been resolved and the victorious group concessions during critical junctures. Be- has the ability to search for consensus. In tween 1982 and 1984, the FSLN and other Nicaragua, conflict continued after the over- parties engaged in a series of negotiations to throw of the Somoza dictatorship, and the establish the ground rules for the 1984 elec- constitutional process was very much shaped tions. This process included both debate in by the context of an ongoing armed conflict. the Council of State and bilateral talks be- These conditions led to a more contradictory tween the FSLN and opposition parties. At approach to constitution making than the several important points in the negotiations, replacement model suggests.11 the right-wing opposition alliance, Coordi- The difficulty in assigning the 1987 Nic- nadora Democrática Nicaragüense (CDN), araguan constitutional process to any one withdrew from the council to force greater constitution-making typology12 makes it im- concessions from the FSLN. Although the portant to understand its uniqueness, for it FSLN did not incorporate all the CDN’s de- is in this uniqueness that the origins of the mands, the resulting political parties law and 1995 and 2000 reforms can be understood. electoral law contained responses to many of McWhinney argues that the post–World the opposition’s key concerns.15 War II wave of constitution making brought A second tendency in post–World War II several tendencies to the forefront, notably constitution making is “‘revived’ or ‘modern- the idea of popular democracy. The leadership ized’ classical Western constitutionalism.”16 of the revolutionary government in Nicara- Concessions from advocates of the popular gua was clearly influenced by the popular de- democracy approach primarily reflect this mocracy model. Jules Lobel terms the FSLN modernization tendency. Wilson argues that version of popular democracy “participatory changes in revolutionary Nicaragua reflected democracy” and argues that it required “three modernization under the civil law model © Copyrightinterrelated efforts”: by the Endowmentrather than “a wholesale conversion of to the socialist model [McWhinney’s popular de- First, it required developing structures and in- mocracy model].”17 The 1984 elections for thestitutions United such as the mass Statesorganizations, town Institutea national constituent of assembly Peace represented hall meetings, and a broad-based militia which would encourage and permit popular participa- a shift away from corporatist structures and tion in governmental affairs. Second, it involved toward formally adopting liberal democratic dramatic social and economic restructuring of political institutions. The Council of State, society and the guaranteeing of social, economic the previous