藏精阁

I. INTRODUCTION

This statement is offered by an international pre-election delegation to Peru, organized jointly by the National Democratic Institute for International Affairs (NDI) and 藏精阁. The delegation visited Peru from February 7 through February 11, 2000. This is the second in a planned series of three NDI/Carter Center delegations that will observe the pre-election period. In addition, Carterand NDI have established a continuous presence in Peru from January until after the elections in April 2000, in order to more fully assess the entire electoral process.

NDI and Carterare independent, nongovernmental organizations that have conducted impartial election observation programs in the Americas and around the globe. The purposes of this delegation were to express the support of the international community for a democratic election process in Peru and to assess the evolving political environment surrounding the upcoming elections, as well as the state of electoral preparations.

The delegation conducted its activities according to international standards for nonpartisan international election observation and Peruvian law. NDI and Carterdo not seek to interfere in the election process or, at this juncture, to make a final assessment about the process. Both institutions recognize that, ultimately, it will be the people of Peru who will determine the legitimacy of the elections and of the resulting government.

SUMMARY OF OBSERVATIONS
As described below, the delegation's observations are based upon an extensive series of interviews and meetings with candidates, representatives of the government, the electoral authorities, non-governmental organizations, and local experts in political analysis, as well as the research of our field office representatives during the past four weeks and the work of our earlier delegation which visited Peru from November 28 through December 3,1999. The delegation would like to express its gratitude to everyone with whom it has met for sharing their time and views.

The delegation took place as the presidential race was well underway, and it was present in Peru during the official registration of each party's parliamentary lists, which ended on February 9. The electoral authorities are in the process of verifying the voter registry (padron electoral), and the nomination and selection of the regional-level electoral authorities (Jurados Especiales Electorales) and the polling station administrators (miembros de mesa) has taken place.

The Ombudsman's Office (Defensoria del Pueblo) is promoting the integrity of the electoral process in a variety of ways, including civic education, improvement of voter access for all Peruvians and support for Peruvian organizations involved in similar efforts. In addition, Transparencia (Transparency), a civil society organization, is playing a prominent role in monitoring the electoral process and training and coordinating domestic nonpartisan election observers. Foro Democratico (Democratic Forum), another Peruvian organization, is training party poll-watchers in multiparty training programs.

The delegation viewed positively the statements made and actions taken over the past month by the President, the Prime Minister, the National Elections Tribunal (Jurado Nacional de Elecciones – JNE) and the National Office of Electoral Processes (Oficina Nacional de Procesos Electorales – ONPE), to improve the integrity of the electoral process. However, the electoral process is still marred by serious problems, and it is this delegation's assessment that in many respects conditions have worsened since the first delegation issued its report in early December 1999.

Of the major recommendations of the first delegation – to protect media freedoms, to increase fairness in access to media, to strengthen the autonomy of the judiciary, and to grant access to domestic and international observers to the electoral process – only the invitation of international observers indicates demonstrable progress. Moreover, there is a widespread perception that the electoral process is flawed, and this perception undermines public confidence in the elections. It is therefore important not only that government officials make declarations about improving the election process, but it is vital that effective measures be implemented immediately and comprehensively so that the credibility of the process might be established and international standards might be met.

The political conditions for free and fair elections have not yet been established. The delegation members believe that significant improvements in the electoral process are still possible, but are concerned that one-third of the campaign period has already lapsed. Thus, the delegation urges the government of Peru and its electoral authorities to act swiftly to restore public confidence in the electoral process, and to this end the delegation offers a number of recommendations and urgent proposals for improvements.

II. THE DELEGATION AND ITS WORK
The February 2000 pre-election delegation included: His Excellency Rodrigo Carazo, former President of Costa Rica; Dr. Guillermo Marquez, former President of the Elections Tribunal in Panama; Dr. Gerardo Le Chevallier, NDI Director for Latin America and the Caribbean; and Dr. Shelley McConnell, Carter Center Associate Director for Latin America and the Caribbean. The delegation was joined by Dr. Luis Nunes, Project Director, NDI/Carter Center Joint Election Observation Mission in Peru, and Mr. Barry Levitt, Senior Political Analyst, NDI/Carter Center Joint Election Observation Mission in Peru.

The delegation was invited by the Government of Peru and Peruvian civic and political leaders. Delegation members met with a cross-section of Peruvian political leaders, election officials, political analysts, and representatives of nongovernmental organizations, including: Prime Minister Alberto Bustamante Belaúnde; Congressman Carlos Torres y Torres Lara; presidential candidates Alberto Andrade (Somos Peru), Luis Castañeda Lossio (Solidaridad Nacional), Victor Andres García Belaúnde (Accion Popular), Federico Salas (Avancemos), Abel Salinas (APRA), Maximo San Roman (Union por el Peru), and Alejandro Toledo (Peru Posible); representatives of the JNE and the ONPE; the Defensor del Pueblo; members of the news media, polling firms, and academia; and nonpartisan pro-democracy organizations, such as Transparencia and Foro Democratico.

The delegation's principal purposes were to demonstrate the international community's interest in, and support for, a transparent and democratic election process in Peru, and to follow up on the observations of the first delegation and of our NDI/Carter Center field representatives. Specifically, the delegation was charged with several tasks:

(1) to assess the legal and administrative framework within which these elections are taking place;
(2) to assess the political environment and the degree to which these elections can be freely and fairly contested;
(3) to identify any problems in the electoral process and make specific recommendations on how these might be ameliorated;
(4) to share findings and recommendations with civic, media, political and government representatives, as well as with the public at large;
(5) to investigate issues raised during the first NDI/Carter Center delegation to Peru, such as the use of public resources for election campaigns; and
(6) to evaluate whether or not improvements to the process have been made that would alter the conclusion of the first NDI/Carter Center delegation, which concluded that: "[t]he pre-election environment is marked by serious flaws, and the problems noted must be addressed by concerted and sustained efforts in the period ahead to make it possible for the electoral process to meet international standards for genuine democratic elections."

III. ELECTORAL CONTEXT
As noted in the December 3, 1999, NDI/Carter Center Pre-Election Delegation statement, an accurate and complete assessment of any election must take into account all aspects of the electoral process. These include: 1) conditions set up by the legal framework for the elections; 2) the pre-election period before and during the campaign; 3) the voting process; 4) the counting process; 5) the tabulation of results; 6) the investigation and resolution of complaints; and 7) the conditions surrounding the formation of a new government. This delegation therefore does not pre-judge the overall process. At the same time, no election can be viewed in isolation of the political context in which it takes place. The pre-election period, including electoral preparations and the political environment, must be given considerable weight when evaluating the democratic nature of elections.

The Reelection Issue
A central question arising in the 2000 elections concerns whether President Fujimori is permitted constitutionally to stand this year for re-election to another term in office. The Constitution of Peru provides that all controversies concerning electoral matters are to be resolved by the JNE, without higher review (Article 181). This includes matters involving constitutional interpretation.

The question is presented because President Fujimori was originally elected in 1990, under the former constitution (which allowed only one presidential term), and he was elected again in 1995 under the present constitution. Article 112 of the present constitution, which went into effect in 1993, states in relevant part that: "The presidential mandate is for five years. The President can be immediately re-elected for an additional term." The controversy therefore centers on whether President Fujimori's first five-year mandate is to be counted under the new constitution.

President Fujimori filed his candidacy on December 27, 1999. It was immediately challenged before the JNE by 18 motions, including motions filed by opposition political parties, civic groups and the Bar Association of Lima. Nine of the motions attacked his candidacy based on the election law; all nine were rejected in a unanimous vote by the JNE. Six motions attacked his candidacy on constitutional grounds. Four of the five JNE members voted against those motions, while one member, Ramiro de Valdivia Cano, voted in favor of them. The JNE's decision precipitated demonstrations against President Fujimori's candidacy by several thousand people in Lima and other cities.

Although the ruling by the JNE settles the issue as a matter of Peruvian law, NDI and Carterare seriously concerned by the array of political maneuvers aimed at pre-determining the outcome of the legal issue. Taken as a whole, these measures undermine the credibility of the political process in Peru.

In 1996, the Congress passed its "Law of Authentic Interpretation," which stated that, in effect, President Fujimori's election in 1990 did not count against the two-term limit of the present constitution. This congressional action was not constitutionally definitive, but it added the sense of the legislature to the debate. In 1997, Peru's Constitutional Tribunal, with three of its members signing and four abstaining, issued its opinion that the Law on Authentic Interpretation was not applicable to the matter. Congress then removed the three members from the Constitutional Tribunal who signed the opinion. Their seats remain vacant, depriving the Constitutional Tribunal of the number of members needed to declare a law unconstitutional.

Civil society organizations collected more than the requisite signatures to put the issue of President Fujimori's candidacy on a national referendum (10 percent of the registered voters). The Congress passed another law requiring that it first determine whether referendum issues may go before the voters. This restriction of the Constitution's provisions itself is highly controversial and appears to violate the principle that in a democracy rights established by the constitution may not be unnecessarily restricted. Moreover, in 1998, the Congress acted to prevent the referendum on the question of re-election.

The ability of citizens to challenge these and other actions is restricted because of the lack of a quorum required on the Constitutional Tribunal to declare a law unconstitutional and because Peru has removed itself from the jurisdiction of the Inter-American Court for Human Rights.

Together, these steps present what appears to be an orchestration aimed to ensure a specific legal outcome on the issues of the President standing for re-election – irrespective of the merits of the legal arguments. These steps over an extended period damaged the credibility of the political process, undermined public confidence and guaranteed heightened controversy in the elections. These actions, in combination with others concerning the provisional status of judges and prosecutors, also have impaired public confidence in the independence of judicial processes and the ability to pursue effective legal remedies in matters of a political nature.

IV. RECENT DEVELOPMENTS AND MAJOR ISSUES FOR CONSIDERATION

As the election campaigns gain momentum and the electoral authorities prepare to administer the election day processes, recent developments in Peru raise a number of key issues, including:

Lack of Media Fairness
In a free and fair electoral process, election campaigns should feature open political debate, with opposing views and programs being publicly aired. Freedom of access to information is a human right, particularly in the context of an election, in which the ability to choose reasonably among candidates makes possible the political expression of the will of the people. For both the electorate and the candidates, fair access to the means of mass communication is addressed by Article 19 of the Universal Declaration of Human Rights, which states that everyone has the right to seek, receive and impart information and ideas, which is central to the right to genuine elections contained in Article 21 of the same Declaration.

As well, Peru's Organic Election Law (26859), in Article 186, states that in the diffusion of campaign propaganda, regardless of the medium, "equal conditions must be applied to all parties and candidates." Moreover, Article 26 of the Telecommunications Law (D.S. 013-93-TCC) explicitly names the Jurado Nacional de Elecciones as the entity which "during electoral processes, ensures that the companies that provide broadcasting services offer, under equal commercial conditions without any kind of discrimination, spaces to political parties, political groups or candidates duly inscribed in the Jurado Nacional de Elecciones."

The delegation views positively the recent statements made by the President and Prime Minister that the government is concerned with opening access to the media for all candidates. The extension of the time period during which the government will provide free time to candidates in the state-owned media, from 30 to 45 days prior to the election, is a step towards greater media fairness. Furthermore, at least one privately owned station has offered to comply with these calls for increased access. However, the majority of privately held television stations have not responded to these pleas. While we applaud the JNE for issuing its statement on this matter (Comunicado Oficial 200-P/JNE), it does not appear to be taking effective action to guarantee the integrity of this aspect of the electoral process.

The 2000 election campaign has been marred by a lack of media objectivity and a tendency towards sensationalistic journalism. Substantive political discussion is a rarity on television, particularly broadcast television, while only a small minority of Peruvians have access to cable television. In place of serious debate, the delegation has observed that several broadcast television stations have been openly biased and hostile towards opposition candidates and Peruvian election observers (see below). As well, the "prensa chicha" (tabloids) continue to be disproportionately anti-opposition and pro-government, and these newspapers are believed by many Peruvians to be part of a concerted effort to defame opposition leaders.

There have been several claims by opposition candidates that they have been denied not only a semblance of objective coverage of their campaigns and programs, but also the opportunity to purchase paid advertising spots on broadcast television. The station managers of several local media corporations have been accused of refusing to sell commercial spots or charging prohibitively high prices for them.

Recent research conducted by Transparencia has demonstrated that coverage of candidates on television was somewhat more equal in the month of January than in prior months, although President Fujimori still receives disproportionate coverage. It should be noted, however, that Transparencia's data do not distinguish between positive and negative coverage, and thus recent media attacks on opposition candidates have the misleading effect of making coverage seem more equal.

It is also troubling that the Peruvian government is the single largest buyer of television and radio advertising time. Due to outstanding tax debts, the government is also the major creditor of most broadcast television stations. According to many observers, it is the tacit threat of calling in these debts or withdrawing a major source of advertising income that acts as a disincentive for media corporations to sell spots to opposition candidates. As well, the delegation found it striking that many of the broadcast television stations are currently involved in politically sensitive disputes over ownership.

Moreover, the delegation found it difficult to understand why certain financially struggling stations would refuse to sell advertising to a client offering full payment in advance. Finally, the saturation of the airwaves with state-sponsored messages using a logo nearly identical to that of the President's political group has raised questions regarding the effects of these messages on voters and, as such, the use of public resources for political purposes (see below).

Harassment of Candidates and Domestic Observers.
Opposition figures continue to complain of cases of harassment, such as counter-demonstrations and mysterious blackouts during rallies. Although the delegation was not able to determine the source of these incidents, the patterns of these events make it seem that they are not coincidental. The delegation, however, was pleased to note that there has been a decline in open disruption of rallies and meetings.

The failure to consistently prosecute those responsible for such incidents contributes to an atmosphere of intimidation and suspicion that presents a serious threat to the credibility and transparency of the electoral process. Many candidates view the filing of election-related complaints as a waste of their scarce time and resources, and those who have pursued legal remedies have for the most part been unsuccessful. Most importantly, there is a public perception that intimidation is taking place, and this perception in itself undermines confidence in the process and affects the campaign activities and strategies of opposition candidates.

Peruvian organizations that are involved in the observation and integrity of the electoral process have also been targets of concerted harassment campaigns. Both the Defensor del Pueblo and the director of Transparencia have been villified in the media, particularly on television's Channel 2 – the station that was taken away from media entrepreneur Baruch Ivcher. These attacks have helped to create a dampening of democratic discourse within Peruvian society, since these nonpartisan individuals are being publicly targeted precisely for articulating a commitment to a genuine election process.

Use of Public Resources, Spaces, and Agencies.
Because of the dual roles played by Alberto Fujimori as both President and candidate, there has been much public debate surrounding the use of public resources for campaign purposes. The President has promised not to engage in campaign activity while inaugurating public works or at other state-sponsored events. It is often difficult to distinguish state actions from campaign activity. This is particularly true of inaugurations of public works, which in the three months remaining before the elections are likely to be perceived as campaigning by voters and political competitors alike. Such activities could have an important impact on the choice voters make and would be tantamount to using state resources for electoral advantage.

The NDI/Carter Center field office has noted at least one concrete example of a public works inauguration being explicitly linked to the reelection campaign. The opening of an ESSALUD public health clinic in La Molina, Lima was advertised on the same flyer as a pro-Fujimori slogan. Equally controversial has been an imbalance in the use of public spaces for campaign propaganda, and in some cases, the use of restricted military zones -- surrounded by signs proclaiming that guards have orders to fire upon trespassers -- for creating highly visible "Peru 2000" advertisements inscribed onto hillsides.

Finally, there is at least circumstantial evidence of political pressure being applied by Peru's tax agency (SUNAT) and other public entities against opposition candidates and their supporters. At least one presidential candidate was the target of an aggressive tax audit within two weeks of declaring his candidacy. Several other candidates and private sector representatives have claimed that potential campaign donors have been dissuaded from supporting an opposition campaign due to the threat of SUNAT audits.

The JNE is presently investigating some of the most flagrant cases of public spaces being used for pro-Fujimori advertising, such as the giant "Peru 2000" ads described above. However, it has been slow to react to public outcries and has not acted proactively to protect citizens' rights and promote fairness in the electoral process. Moreover, after several weeks there has been little effort to find and punish those responsible, which sends two dangerous signals to the electorate: that the government and its supporters can act with impunity, and that military is associated with the re-election campaign.

Election Administration.
The National Elections Board (JNE), National Office of Electoral Processes (ONPE) and National Identification and Civil Status Registry (RENIEC) share the responsibility for organizing and managing Peru's elections. Many opposition parties and civic groups have expressed concerns regarding the independence and impartiality of the three electoral bodies.

In administering the logistics of the election process, the JNE and ONPE have demonstrated a significant lack of compliance with the electoral laws and with their own internal regulations. Procedures for nominating and selecting the regional Jurados Especiales Electorales (Special Electoral Tribunals – JEE) particularly those procedures which allow for public input in the process in the form of exercising a veto (tacha), were in many cases not followed. As a result, 15 of 47 JEE's had to be renominated. Even so, some JEE's have members who are reportedly Peru 2000 activists or government representatives. Either of these factors could be, prima facie, legal grounds for vetoing a JEE nominee.

The electoral authorities have acted to correct only some of the procedural irregularities that have occurred, and have only done so after being criticized by the media or civil society. For example, the Jurado did not appear to the public to be faithfully verifying the selection of the members of the JEEs. Moreover, in several cases the JNE has demonstrated an apparent lack of political will to investigate and act upon denuncias (complaints), which might help explain the lack of public confidence in this institution registered by public opinion surveys.

The delegation was impressed by the high technical capacity and methodological sophistication of the ONPE and RENIEC, which represents a significant improvement since the 1995 elections. The technological tools for safeguarding the integrity of the vote are, in fact, being made available by the electoral authorities. For example, the results of vote counts at each polling place are to be made available on an electronic site, which will allow parties and election observers to verify that results from the polling places they observed were accurately recorded and tabulated into the national election results.

However, even the most sophisticated tools do not obviate the need for well-trained election observers, such as the parties' poll-watchers. Opposition parties are concerned that they will be able to monitor only a small percentage of the 87,000 polling sites. One solution made possible by the JNE would be that each party agent could oversee more than one mesa at the same polling site. To conclude, the delegation applauds the efforts of those Peruvian organizations working in a professional manner to train party poll-watchers.

Voter Registration
Although the voter registration process ended in December, significant controversy over the accuracy of the voter list (padron electoral) has ensued. The timeframe for verifying the padron and suggesting corrections was from December 9, 1999 until January 10, 2000. For the first time in Peruvian history, a preliminary version of the voter list was made available to parties and to civil society – a positive step towards a more productive relationship between these organizations and the electoral authorities. However, both Transparencia and the political parties have complained that the encrypted format of the data given did not allow them to conduct a thorough and systematic analysis of the list.

Nonetheless, using this data Transparencia conducted a study in which it randomly sampled voters from the preliminary version of the padron. In subsequent analysis, they found that 2.2 percent of the sample were people who were deceased but still listed on the padron, and another 2.4 percent had emigrated from Peru but were still registered at their local addresses. Moreover, fully one-third of those surveyed were listed at an incorrect address.

Although the electoral authorities initially claimed that Transparencia's estimates were exaggerated, the ONPE subsequently instructed the JNE to extend the period of time for correcting and updating the padron, from January 10 to February 15, a decision that the delegation supports. An international expert evaluated Transparencia's methodology in great detail and reported to the delegation that it was sound, and that the organization's efforts were impressive. The delegation further observed that the errors in the padron are unlikely to seriously threaten the integrity of the electoral process, and that the padron has been notably improved since 1995.

V. RECOMMENDATIONS AND TIME CONSIDERATIONS
International experience demonstrates that extraordinary steps by a government are often needed to establish confidence in the country's political and electoral processes. This is particularly true where a country has experienced a rupture in the continuity of its democratic institutions and where democratic traditions have not been firmly established. The delegation noted the strong desire of Peruvian citizens and officials for organizing democratic elections. With this in mind and in the spirit of international cooperation, the delegation offers respectfully the following recommendations. It is the delegation's hope that the recommendations may help those working to advance the prospects for a meaningful election process, which meets Peru's commitments to organizing elections that meet international standards.

• Providing Media Access: Electoral bodies and government leaders should continue to call on the media to act responsibly and fairly in making time and space available to parties and presidential candidates. Media organizations should make available to parties and candidates broadcast time and print space at normal market rates and without discrimination among these political contestants. In addition, the government should purchase time and space in the private media and make it available to the parties and candidates on an equitable basis. A mechanism should be established promptly to ensure the proper distribution of free airtime on state-owned media in particular. These and other appropriate steps should be taken immediately in order to provide meaningful media access to the contestants, which is necessary so that the voters can make informed and free choices at the ballot box.

• Ending Media Bias: Electoral bodies and government leaders should continue to call on the media to provide equitable, accurate and unbiased coverage of parties and presidential candidates. Government-controlled media should be directed by the responsible authorities to provide such fair and responsible coverage, while private media should accept and abide by professional ethical standards to provide such coverage. Effective remedies, such as the right to reply and the right to correction, should be implemented immediately along with other measures to prevent bias, so that the campaign period can progress freely and fairly.

• Ending Harassment of Candidates and Domestic Election Observers: Electoral bodies and government agencies must act immediately and effectively to halt harassment of political parties, candidates and Peruvian organizations working to help ensure the integrity of the election process, such as Transparencia and the Ombudsman's Office (Defensoria del Pueblo). The electoral violations "hot line" recently initiated by the government should be widely publicized in the days ahead. A log should be kept of all calls it receives and of which electoral or government agency is called upon to respond to allegations of electoral violations. Such records should be readily available to the political parties, candidates, media and election observers in order to help establish public confidence. Pledges to appoint special prosecutors in each election district should be fulfilled promptly, and their appointment should be announced along with their contact information. Election observers should be allowed to witness their training and orientation sessions, and reports concerning investigations and disposition of prosecutions of election abuses should be readily available. Prosecutions of election abuses should be expedited and publicized within the requirements of due process of the law, so that the public and political contestants can be aware of actions to protect electoral rights and to hold violators accountable.

• Preventing Misuse of State Resources for Electoral Advantage: Beginning immediately and continuing throughout the electoral period, state advertising and education campaigns other than nonpartisan voter education should be reduced and none should be presented with a logo that could be identified with the reelection campaign of President Fujimori or other candidates or parties. In addition, the government should issue publicly directives to all officials to desist from using state resources for campaign purposes. Such directives should make clear that any such activity will result in severe sanctions, including prosecutions where appropriate. In addition, current steps to remove campaign slogans from military areas and other government facilities should be increased. High government officials also should consider that the electorate is likely to perceive inauguration of public works projects as campaign activity in the period remaining before the election and are encouraged to refrain from such activities until after the elections.

• Increasing Transparency in Electoral Administration: Over the next several weeks, electoral authorities should be as proactive as possible in allowing public scrutiny through party and candidate agents, election observers and the media to witness them performing their duties and guaranteeing the integrity of the process. Any questions remaining concerning the impartiality of members of the JEEs and polling station commissions should be addressed publicly, and training sessions for election officials should be open to observation by party and candidates agents and nonpartisan election monitors. Such increased transparency should help to gain the confidence of the electorate and increase the likelihood that the election results will be respected and accepted by all parties and candidates.

• Ensuring Complete Access for Party Pollwatchers: On the day of the elections, party pollwatchers (personeros) should be legally permitted to attend to multiple mesas at the same polling site and should have the right to collect the acta (vote tally) from all of these mesas. All election officials, as well as police and armed forces personnel, should be instructed by the appropriate national body to grant such access. In addition, governmental and electoral authorities should take effective steps to ensure the safety of all party pollwatchers in the conduct of their activities.

• Ensuring the Rights of Nonpartisan Election Observers: Throughout the pre-election period, on election day and in the post-election period, nonpartisan Peruvian and international election observers must be guaranteed unhindered access to all aspects of the election process, as provided by law. Electoral and governmental officials should call publicly on all authorities to grant such access and to ensure the safety of observers in the conduct of their activities. Electoral authorities and high government officials should call on the news media to respect the role of such observers and their organizations and halt the vilification of the leaders of domestic observer groups and the Ombudsman's Office.

The delegation offers these recommendations in the hope of contributing to the efforts of those who are working to broaden and deepen democracy in Peru. NDI and Carterwill continue to monitor developments in the election process and will organize a third pre-election delegation to visit Peru in March 2000.

1 Statement of the NDI/Carter Center, December 1999 Pre-Election Delegation to Peru, issued on December 3, 1999.