The Political Constitution of the State, as the supreme norm of the legal system, expresses the social and political pact that determines the basic norms of peaceful coexistence and democratic construction of society. On the one hand, the Constitution, defines the rights and freedoms of people as a limit to the power of the State and, on the other hand, organizes the public authorities in the way that their full realization is better served, it is so that it provides for a form of organization of the State, through the separation of public bodies and their different powers. As for the executive body, it prohibits the re -election of the president, noting that the period of mandate of the president or the president and the vice president or the vice president of the State is five years, and they can be reelected or reelected for only one time continuous politician
The American Human Rights Convention, treated ratified by Bolivia, points out in its art. 23. subsection 1. a) Every citizen has the right to participate in the direction of public affairs, directly or through freely elected representatives. Thus, the American Convention establishes two competent bodies to know the matters related to the fulfillment of the commitments contracted by the States Parties, one of them being the Inter -American Court of Human Rights (art. 33), Autonomous Judicial Institution whose objective is to apply and interpret the American Convention. The Inter -American Court exercises a contentious function, within which is the resolution of contentious cases and the mechanism for supervision of sentences; as well as the advisory function, which consists in the interpretation of the Convention or other treaties concerning the protection of human rights in American States.
It is in this framework that, in 2021, the Inter-American Court of Human Rights (IDH Court) issued its OC-28/21 advisory opinion, in which it concluded that indefinite presidential re-election is not an autonomous human right and that it can undermine the democratic system, argued that indefinite re-election can concentrate too much power on the president, hinder the political participation of other actors and limit the separation of powers. The limitation or prohibition of presidential re -election is not a restriction of political rights, since it is in accordance with the principles of legality, necessity and proportionality, in accordance with the jurisprudence of the Inter -American Court of Human Rights in the matter.
The Court also reiterated that the interdependence between democracy, the rule of law and protection of human rights is the basis of the entire system of which the Convention is part and considered that the principles of representative democracy include, in addition to the periodicity of the elections and political pluralism, the obligations to prevent a person from being perpetuated in power, and to guarantee alternation in power and separation of powers.
In recent years, the Inter -American Court showed about political rights and non -re -election in the case of Yatama vs Nicaragua; and its developments in the Capriles vs Venezuela and now in Gadea Mantilla vs Nicaragua. We will analyze the last case Gadea Mantilla vs Nicaragua. The Constitution in Nicaragua prohibited a president to candidate three times continuously, in spite of everything, Ortega managed to obtain a judicial decision that eliminated all restrictions on re -election and could candidate for the third time against Mr. Gadea, victim of the case, and other candidates, in the presidential election of 2011. This election was also plagued by other arbitrariness that favored the candidacy of Ortega. Specifically, the case refers to the violation of Mr. Gadea Mantilla to be chosen through an authentic election that reflects the free expression of the voters, as established in article 23.1.a) andb) of the American Convention. The Court also considered that the affectation of electoral integrity generated an advantage in favor of President Daniel Ortega in the electoral process that violated the right of Mr. Gadea Mantilla to compete in general conditions of equality to the position of President of the Republic. (https://www.corteidh.or.cr/docs/cas/articulos/resumen_543_esp.pdf)
The Court concluded that the lack of integrity of the electoral process favored the re -election of President Daniel Ortega. In addition, he considered that the Supreme Court of Justice and the Supreme Electoral Council showed partiality and did not guarantee an effective judicial appeal to review the decisions that questioned irregularities in the process.
Likewise, the Court applied in a specific case what was developed in the 28/21 advisory opinion, on the presidential re -election, reiterating that there is no conventional right to indefinite re -election and that the modifications of constitutional norms related to access to power are not susceptible to being decided for majorities or their representatives when they benefit the person who is in power, and put in a disadvantaged situation.
The Court indicated that political rights and the principle of non -discrimination require equal opportunities for candidates in elections therefore there is no more than a re -election of authorities in Bolivia, preserving the principle of alternation, participatory pluralism of the democratic system.
