David Lovatón Palacios*
Spanish version here.
On April 11, the general elections took place in Peru to elect the new President and Congress for the period 2021-2026, with an absolutely unpredictable and discouraging result from a democratic perspective. The following is a brief analysis of what the two presidential candidates who have made it to the second round of elections represent and the very difficult scenarios that may arise in the next five years for Peru.
It has been an atypical electoral process due to the restrictions imposed by the pandemic and the devastating effects on the life, health, employment and economy of Peruvians. The campaigns of the candidates, not only for the presidency but also for the Parliament, took place -to a great extent- in the midst of the apathy of the citizens, much more worried about saving the life of a family member or friend by getting an ICU bed or an oxygen balloon, about keeping themselves safe from this invisible enemy or not losing their job or small business or, if they already lost it, how to generate new income and bring some food to their families. In other words, this electoral campaign took place in a social context in which millions of Peruvians continue to face the terrible dilemma on a daily basis: either die of Covid-19 or die of hunger.
In this social context and collective sentiment, the meager electoral result of last April 11 in Peru was, on the one hand, a unicameral Congress fragmented into ten (10) parliamentary groups according to the official results of the National Electoral Office (ONPE), in which no party will have a significant majority. On the other hand, two presidential candidates who have passed to the second round with a very low vote: the leftist Pedro Castillo and the rightist Keiko Fujimori, who -from their respective political spectrum-, have offered quick solutions to the crisis such as a possible closure of the Congress or the Constitutional Court for the former, or a «iron first» strategy for the latter. In short, both represent dangerous populist and authoritarian proposals, both from the left and the right.
Article 111 of the Peruvian Constitution establishes that the President of the Republic is elected by more than 50% of the valid votes. If no candidate obtains such vote, then a second electoral round is foreseen between the presidential candidates who came in first and second place. In this second round, whoever obtains the highest number of votes is elected President.
As journalist Gustavo Gorriti points out in a recent article, the problem with these elections is that the two candidates who made it to the second round did so with a very low vote in comparison to previous elections and, therefore, with little citizen legitimacy: «What does this exploration of electoral representation in the five general elections of this century teach us? That the first four had a significant degree of representativeness. The top two candidates in the first round of each of those elections won 44.2%, 40.8%, 40.4% and 40.8% of all eligible voters in the country. And much more, of course, of the votes cast and the valid votes. There is little doubt that those elections expressed the will of the majority… In stark contrast to all previous elections, the winner and runner-up in the 2021 first round accounted for just 18.5% of all eligible voters in the country…«
The current constitutional text only contemplates the possibility of annulling an electoral process «when the invalid or blank votes, added or separately, exceed two thirds of the number of votes cast» (art. 184° constitutional). That is, it would require that two out of every three Peruvians cast invalid or blank votes for these elections to be annulled, something very difficult to happen. So Peruvians will be forced to vote for the lesser evil which, on this occasion, is very difficult to identify; to quote Gorriti again, it is really a «devil’s alternative«. In that sense, a future constitutional reform should contemplate other assumptions for the annulment of elections.
Pedro Castillo is a teacher, leader of one of the factions of the Union of Public Education Teachers (Conare-Sutep) and also leader of the “peasant patrols” (rondas campesinas), a popular organization that, in rural areas of the northern highlands of the country, provides citizen security and imparts communal justice in the absence or scarce presence of the State. Undoubtedly, the “peasant patrols” enjoy great legitimacy among citizens, have recognition in article 149 of the Constitution and in several rulings issued by the Supreme Court of Justice.
The problem with Castillo is not who he is, or where he comes from, but what he proposes if he becomes president. In public statements he said that he would close the Parliament if it does not accept his plans and that he would also deactivate the Constitutional Court because he claims that it defends grand corruption. Apparently, he does not feel comfortable with the separation and balance of powers and announces that he would rather concentrate power. This explains his sympathy with political regimes in Latin America such as Maduro’s in Venezuela or Ortega’s in Nicaragua. In the continent we already know all too well this populist and authoritarian leftist script and how it ends: institutional crisis and serious human rights violations.
Neither candidate Castillo nor his party -Perú Libre- likes the control of the international community. Regarding the Inter-American human rights system – which in our country and in Latin America has been decisive for the prohibition of amnesty laws or for the development of the rights of indigenous peoples, just to name two examples – they affirm that both the Inter-American Commission and Court have a «behavior biased towards imperialism» (p. 70), that is, they consider them to be a kind of pawn of the United States government. Another aspect that brings this candidate closer to the dictatorships of Venezuela and Nicaragua.
In the case of Keiko Fujimori, this is the third time she has run for the presidency and has made it to the run-up of the elections. While in the 2016 elections she tried to place herself in the political center, on this occasion – prompted by a consistent investigation for illicit financing of her previous electoral campaigns that has already kept her in preventive detention for several months – she invoked the hard core of Fujimorism and summarized many of her proposals to combat the pandemic, poverty and unemployment in just two words: «mano dura« (iron fist). It seems that his electoral strategy on this occasion was not necessarily to win but to achieve a parliamentary group that would allow her to pressure or negotiate in favor of his impunity.
Despite this, she has managed to pass to the run-up, although with a very low vote of only 13.38% of the valid votes; a vote that in any other election would not have been enough to continue in the election race. The first poll on voting intentions for the second round, which was made public on April 18, shows that she has 31% of voting intentions, behind Pedro Castillo who has 42% of voting intentions.
But what should worry Fujimori most is that she is the candidate with the most resistance: according to the same poll, 55% of those surveyed would not vote for her, while Castillo has 33% resistance among those surveyed. She seems to be the worst candidate to defend the «economic model» enshrined in the 1993 Constitution, as she still bears the imprint of great corruption, serious human rights violations and abuse of power perpetrated by the regime of her father Alberto Fujimori in the 1990s, who is now serving prison time precisely for the crimes he committed. Despite this, she has publicly offered to pardon her father if she comes to power, something that the Inter-American Court and the Peruvian Supreme Court have already determined in 2018 to be contrary to the American Convention of Human Rights.
Of course, both left and right-wing candidates seem to denigrate the Inter-American human rights system and the balance of powers in general. One more sign of the authoritarian profile of their electoral promises.
Part of the current electoral debate has revolved around maintaining or modifying the Liberal economic model and the current Constitution. Castillo has not been the only to raise this issue, all left-wing candidates have done so and even center candidates have offered to introduce partial reforms to the model. What is certain is that post-pandemic Peru demands, on the one hand, a revision of the economic model that allows for better regulation of some key markets for the life and health of citizens, such as medicines or medical oxygen or public and private health or retirement systems. On the other hand, the constitutional regulation of the environment and natural resources and their relationship with the economy and communities also deserve a comprehensive review.
One of these two characters will be the next president of Peru, with a Congress fragmented into ten (10) parliamentary groups. A gloomy political, social and economic panorama is looming over the country.
Now, there are three possible scenarios if Pedro Castillo wins. The first: that he acquires greater popular support and, therefore, greater power that allows him to impose his plans for a new Constitution, the revision of the economic model and the undermining of the balance of powers, as we have already seen in other countries of the continent. The second: that he is co-opted or «aggiornato» by economic powers – illicit or illicit – and ends up being a second version of former president Ollanta Humala who offered a «great transformation» that only remained on paper. And the third: that he enters into a maelstrom of confrontation with the Parliament that could culminate in the closure of the latter, with a presidential impeachment, or both, instability that we have already experienced in Peru in the last five years.
In the case of Keiko Fujimori, there are two possible scenarios. The first: that she compensates for the strong popular opposition that she would surely have from the beginning, relying on the military and big capital. In that case, she could again incur in serious human rights violations and abuse of power if she chooses to militarize the response to social protests and criminalize social leaders. The second: he could also enter into a vortex of confrontation with the Parliament that could culminate in the closure of this branch of government, presidential impeachment, or both.
In any of these scenarios, a big question mark hangs over the attitude of the military. So far, despite the political and institutional crises the country has suffered in recent years, they have remained neutral and within the constitutional framework. Let’s hope they continue to do so.
Meanwhile, the pandemic continues to wreak havoc on the lives, health and economy of Peruvians. According to the National Information System of Deaths (SINADEF), as of April 19 of this year, 153,346 people have died of covid-19. According to the Central Bank (BCR), 2’900,000 people lost their jobs in 2020, which meant a 17.1% contraction in employment compared to 2019, one of the sharpest recessions in the region. For its part, the vaccination campaign is progressing in dribs and drabs, mainly due to the slow arrival of vaccines; the current transitional government of President Sagasti has offered that before his term ends next July, only adults over the age of 60 will have been vaccinated.
So the five-year period of Peru’s bicentennial as an independent republic (2021-2026) does not look festive or prosperous as expected, but rather gloomy and uncertain. All that remains is to trust that the forces of the social sectors genuinely committed to democracy (young university students, women’s movements, trade unions, peasant and indigenous movements, civil associations, churches, entrepreneurs, among others) will once again mobilize in case democracy and the rule of law are once again in danger. In 2000 we already stood up to a dictatorship that tried to re-elect itself, and recently in 2020 we took to the streets again to reject a repressive government that lasted only six days. As the long-suffering fans of our modest national soccer team, which returned to the World Cup after 36 years, say: yes, we can do it. We always can.
 «The authorities of the Peasant and Native Communities, with the support of the Peasant Patrols, may exercise jurisdictional functions within their territorial scope in accordance with customary law, provided that they do not violate the fundamental rights of the individual. The law establishes the forms of coordination of this special jurisdiction with the Peace Courts and with the other bodies of the Judiciary.»
*DPLF Legal Advisor and PUCP Professor