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 The Carter Center. The delegation visited Peru from November 28 through December 3, 1999. This is the first in a planned series of three NDI/Carter Center delegations that will observe the pre-election period. In addition, The Carter Center and NDI will establish 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 The Carter Center are independent, nongovernmental organizations that have established reputations for objectivity, impartiality and professionalism through numerous international 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, to assess the evolving political environment surrounding the upcoming elections, as well as the state of electoral preparations, and to offer an accurate and impartial statement of its observations. The delegation conducted its activities according to international standards for nonpartisan international election observation and Peruvian law. NDI and The Carter Center do 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
The delegation would like to emphasize that this is the first of three NDI/Carter Center pre-election delegations to Peru and that a more comprehensive analysis will be developed and presented over the pre-election period. As described below, the delegations's observations were developed in the course of intensive meetings with the broad sectors of Peruvian society that are playing key roles in the developing electoral process. The delegation is grateful for the warm reception it received from all with whom it met.

The delegation noted that political parties and candidates for President and Congress are actively organizing in the period before the opening of the official campaign, notwithstanding their complaints about the nature of the process. Peru's three electoral bodies are moving forward with electoral preparations in order to complete their tasks in time for the April 9 election date. Credible nonpartisan election observation efforts by a number of civil society organizations are underway, building upon the mobilization by Transparencia of approximately 9,000 observers for the 1995 elections and its observation of the 1998 municipal elections. The Ombudsman's Office is also playing a positive role complementing the domestic monitoring efforts. Transparencia and the newspaper El Comercio have entered into an agreement with RENIEC, the electoral body that is responsible for the voter registry, to monitor the registry, which should help build confidence in that part of the election process.

The delegation noted controversy over problems in the legal framework that affect the electoral environment, including the issue of the constitutional interpretation about provisions on standing for re-election. The delegation also noted reports of violations of press freedoms, problems in access to the media, use of state resources to gain electoral advantage, fear of pressure from state agencies or other retribution for criticizing the government and potentially insufficient funding for electoral bodies. Even though voter turnout has increased in recent elections, opinion surveys indicate declining public confidence in the electoral process. In addition, opposition leaders expressed to the delegation strong convictions that their decisions to participate in the elections should not be interpreted as their accepting the process as fair or legitimate, especially with respect to the possible candidacy of the incumbent president for another term of office. These factors give rise to very serious concerns for the delegation. It is the delegation's opinion that the pre-election environment is marked by serious flaws, and that 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.

II. THE DELEGATION AND ITS WORK

This pre-election delegation included election experts and political and civic leaders from four countries. Delegation members have participated in numerous election assessments and international election observer delegations. The delegation was composed of: His Excellency Luis Alberto Lacalle, former President of Uruguay; Dr. Guillermo Marquez Amado, former President of the Electoral Tribunal of Panama; Dr. Charles Costello, Director of Democracy Programs at The Carter Center; Hon. Gerardo Le Chevallier, Director of Latin American and the Carribean Programs at NDI and former Member of the Parliament of El Salvador; Dr. Jennifer McCoy, Director of Latin American and Carribean Programs at The Carter Center; and Dr. Patrick Merloe, Senior Associate and Director of Programs on Election and Political Processes at NDI. The delegation was joined by NDI Program Officer Linda Frey.

The delegation was invited by the Government of Peru, as well as by Peruvian political and civic leaders. Delegation members met with a cross-section of Peruvian political leaders, election officials, journalists and representatives of nonpartisan election monitoring organizations, including: President Alberto Fujimori; leaders of political parties and movements from across the Peruvian political spectrum, including Accion Popular, Cambio 90/Nueva Mayoria, Izquierda Unida, Partido Aprista Peruano, Partido Popular Cristiano, Peru Posible, Solidaridad Nacional, Somos Peru, and Union por el Peru; presidential candidates, including Alberto Andrade and Alejandro Toledo; First Vice President of the Congress Ricardo Marcenaro Frers; President of the Constitutional Commission of Congress Carlos Torres y Torres Lara; President of the Supreme Court Victor Raul Castillo and members of the Executive Commission of the Judicial Power; representatives of the three electoral authorities, the Jurado Nacional de Eleciones (National Election Tribunal - JNE), Oficina Nacional de Procesos Electorales (National Office for Electoral Processes - ONPE) and Registro Nacional de Identificacion y Estado Civil (National Registry of Identification and Civil State - RENIEC); Defensoria del Pueblo (Ombudsman's Office); members of the news media, the private sector and academia; human rights organizations and nonpartisan election monitoring organizations, Transparencia (Transparency), Foro Democratico (Democratic Forum), Consejo por la Paz (Council for the Peace), Servicios Educativos Rurales (Rural Education Services) and Coordinadora de los Derechos Humanos (Coordinator for Human Rights).

III. ELECTORAL CONTEXT

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.

International Standards and Best Practices
International standards for democratic elections are based on the proposition set forth in the Universal Declaration of Human Rights (Article 21) and in all other major human rights documents that the authority to govern derives from the will of the people of a country, and their will must be demonstrated through genuinely democratic election processes. This requires:

• a sound legal framework and an impartial and effective election administration that conducts its activities in an open manner;

• a legal process that is impartial and capable of providing effective remedies on the basis of equality before the law and due process of law; and

• an electoral environment in which political parties and candidates are free to express their messages to the public and have an adequate opportunity to do so, including equitable access to and fair treatment by the mass media, as well as the freedom and opportunity to organize peaceful assemblies and other demonstrations of public support and to move freely throughout the country to seek votes.

In addition, the electorate must be free and able to receive adequate and accurate information upon which to make an informed political choice and be free to exercise that choice without fear, intimidation or bribery. Also, the machinery of the state must remain neutral and its resources must be used for the benefit of the electorate, rather than for the benefit or detriment of any of the political contestants. No electoral process is perfect, but the degree to which it falls short of these standards will determine whether or not the elections are truly democratic. Genuine democratic elections also require that the public, including the political contestants (parties and candidates), have confidence that the results of the election will reflect accurately the free choice of the voters and that the outcome will be respected. International experience demonstrates that extraordinary steps by a government are often needed to establish confidence in the genuineness of the country's political and electoral processes. Governments in these circumstances must go beyond minimum requirements for democratic elections. This lesson appears to be clearly applicable in Peru.

Contextual Factors
Following the 1992 autogolpe (self-administered coup), a new constitution was adopted by a 55 percent favorable vote in Peru's October 1993 referendum. The new constitution modified the electoral system, as did the 1994 electoral law, creating a single national electoral district with proportional representation and allowing voters to express a preference for up to two members of a party's national list of candidates for the 120-member unicameral Congress. These were major changes from the former bicameral legislature and multi-district legislative elections. In 1995, President Fujimori, originally elected in 1990 under the prior constitution, was elected again with approximately 64 percent of the vote, and the pro-government coalition won 67 of the 120 seats in Congress.

Since that time, developments in the legislative and judicial branches have undermined confidence in electoral and political processes. Many of those with whom the delegation met expressed the view that these problems are related to the re-election issue. The Fujimori administration has had successes, including in economic and security matters, and all municipalities now have functioning elected authorities. The successes of the administration, however, could be lost if the problems noted are not effectively addressed. The upcoming elections present an opportunity to take a positive step in democratic development.

Issues in the Legal Framework that Affect the Electoral Environment
A number of controversial developments have taken place in Peru's legal framework since 1995. These developments have weakened confidence in the ability of political contestants and others to turn to the judicial system in order to seek redress of matters related to the political and electoral processes. This development has created a serious challenge for establishing and maintaining the credibility of the electoral process. The lack of confidence in the applicability to obtain effective judicial remedies presents a fundamental problem to be addressed in the period ahead.

1. The Re-Election Controversy
   The Constitution states that a President may have only two successive terms of office. The political opposition and others have maintained that, since President Fujimori has been elected to two consecutive terms of office, in 1990 and 1995, he therefore is ineligible to stand again for re-election next year. Supporters of the President claim the 1993 constitution permits him another term. The question of whether he may stand for re-election in the April 2000 elections has sparked sharp controversy over the constitutional legitimacy of the possibility of 15 years in office.

   • Congressional Action: In 1996, Congress passed the Law of Authentic Interpretation, which stated that President Fujimori's first term of office was not under the 1993 constitution and that he therefore was permitted to seek re-election in the April 2000 elections. The Constitution, however, does not give definitive power to the Congress concerning constitutional interpretation.

   • Constitutional Tribunal Action: The Constitutional Tribunal has jurisdiction over constitutional matters and, among other things, has the power to rule that laws are unconstitutional, upon a vote of at least six of its seven members. In 1997, the Constitutional Tribunal issued an opinion in which three of its members held that the Law of Authentic Interpretation was not applicable to the issue of whether President Fujimori could stand for re-election in April 2000.

   • Removal of Members of the Constitutional Tribunal: Following the Constitutional Tribunal's action, Congress removed from office the three members of the Tribunal who signed the opinion stating that the Law of Authentic Interpretation was inapplicable. Congress later determined that the three violated the Organic Law of the Constitutional Tribunal and removed them by a controversial simple majority vote based on Article 99 of the Constitution. The simple majority vote was controversial because appointment of members of the Constitutional Tribunal requires a two-thirds vote under Article 138. Congress has not filled the vacant positions on the Tribunal, which means that the Tribunal is incapable of obtaining the six votes required for it to declare a law unconstitutional.

   • Blockage of a Referendum on the Re-Election Controversy: After Congress passed the Act of Authentic Interpretation, Foro Democratico, a civic organization, led the process of collecting signatures to qualify a national referendum on whether President Fujimori should be allowed to stand for re-election in the year 2000. The effort succeeded in collecting more than the required number of signatures, 10 percent of the registered voters. Congress, however, enacted a law requiring that Congress must first vote on allowing a referendum before it can go to the electorate. The JNE initially declared that the law was not applicable to this referendum effort. After the required number of signatures were collected, the JNE reversed its position and in August 1998 submitted the matter to Congress in accordance with the new law. Congress voted against allowing the referendum to proceed.

   Under the Constitution, the JNE is the final arbiter of all electoral disputes, including whether or not to accept a candidate to be listed on the ballot. The controversy illustrates, however, the high degree of political polarization surrounding the re-election issue.

2. Provisional Magistrates
   Peru initiated a significant restructuring of the judiciary in 1996, which includes a two-year training program for judges. The extended nature of the restructuring, leaving in place a large number of provisional judges for a period of years, was cited to the delegation by many persons as a basis for questioning the independence of the judiciary and a factor that could affect the electoral process.

3. Inter-American Jurisdiction
   Earlier this year, Peru withdrew from the jurisdiction of the Inter-American Court of Human Rights, due to rulings the Court made calling for the retrial in civilian courts of a number of foreign nationals imprisoned in Peru for convictions as terrorists. While the decision to withdraw from the Court's jurisdiction over such matters does not directly affect the elections, nonetheless, it removes a possible avenue to seek redress when domestic remedies are exhausted on complaints related to the election process.

Violations of Press Freedoms
Peru benefits from a large number of newspapers, magazines, television channels and radio stations. The government-owned TV Channel 7 and Radio Nacional have the strongest nationwide broadcast signals, but most of the country is covered by private radio and television.

A significant number of the Peruvian journalists with whom the delegation met alleged violations of press freedoms, including threats, public defamation, harassment, use of tax investigations and criminal investigations to pressure the press. Violations of freedom of the press in Peru have been denounced by respected nongovernmental organizations, such as the Committee to Protect Journalists and Freedom House and by the Organization of American States Special Rapporteur for Freedom of Expression. Attacks on press freedom create a chilling effect that can block the media from performing their normal role as watchdogs over the integrity of election and other important governmental processes that can be important in the political choice made by voters.

Other concerns presented to the delegation by credible media sources included the potential effects of media outlets deciding not to criticize the government due to the case of Baruch Ivcher, whose Peruvian nationality was removed and who lost ownership of television Channel 2 following reporting that was critical of the government. Arrest warrants on other charges were issued for Ivcher's wife and two daughters. Julio Sotelo, former manager of Channel 2, was sentenced to four years in jail for falsifying a business document in the attempted transfer. While the delegation could not examine the details of the charges and countercharges in the Ivcher case, it was a major instance cited as a cause for fear among the press of retribution for publishing stories that are critical of the government. This case, along with other incidents and declarations about the large degree to which the media outlets depend on government advertising for revenues, was cited to the delegation as reason for concern that the media may be practicing self-censorship in a way that would give electoral advantage to those associated with the government.

In addition, the delegation received serious allegations from media representatives that intelligence services produce and finance some of the material printed in the so-called prensa chicha (tabloids), defaming political candidates and journalists. These allegations pointed to use of almost identical language appearing in headlines on the same day in these newspapers. Such charges, whether or not true, illustrate the potential for self-censorship.

Problems with Access to the Media and Balanced Media Coverage
It is typical that incumbents enjoy an advantage in media coverage. The hugely disproportionate coverage in favor of President Fujimori was recently substantiated by media monitoring reports released by Transparencia. The reports showed that between October 1 and 31, President Fujimori received 78 percent of the broadcast coverage, as compared to other declared or likely presidential candidates. In the period ahead, much will need to be done to level the playing field in the media so that all political contestants can get their messages to the electorate and citizens receive sufficient accurate information to make informed choices at the ballot box.

Use of State Resources
State resources are to be used for the benefit of the citizenry as a whole and are not to be used for the electoral advantage of specific parties or candidates. The delegation received numerous complaints that state resources are being used to the electoral advantage of those associated with the government. This important area was not examined by the delegation and will be a focus for future Carter Center/NDI pre-election delegations.

Electoral Registry and Confidence in Electoral Institutions
Future NDI/Carter Center pre-election delegations will examine developments concerning the voter registry, the state of electoral preparations and the level of confidence in the impartiality and effectiveness of electoral bodies. The delegation noted that an agreement of cooperation has been entered by RENIEC, which is the electoral body responsible for the voter registry, Transparencia and the newspaper El Comercio to review the voter registry. This agreement will enhance openness in the electoral process and should offer an important opportunity for enhancing confidence in the accuracy of the registry. ONPE is planning to introduce new and more secure electoral documentation. This will also require extensive training of personnel, especially to reduce the high percentage of annulled votes seen in the 1995 Congressional elections. In various meetings the delegation also noted the need for the three Peruvian electoral authorities to be guaranteed the financial resources necessary to perform their tasks.

Nonpartisan Domestic Election Observation
Peru benefits from credible nonpartisan election observation efforts by a number of organizations, such as Transparencia and Foro Democratico, as well as from the valuable role of the Ombudsman's Office. The delegation was pleased to see that such efforts are addressing aspects of the pre-election period. The activities of domestic nonpartisan election monitors have done much to build public confidence in elections and their surrounding political processes. Peruvian monitors should be able to play this important role through the April 2000 elections.

IV. RECOMMENDATIONS

In the spirit of international cooperation, the delegation offers the following recommendations. It is the delegation's hope that the recommendations may help those working to advance the prospects for a successful election process.

1. Media Freedoms
   Establishing and protecting freedom of the press is essential to ensuring a credible electoral process and building public confidence in elections. Strong declarations from the authorities in this respect, coupled with decisive action to identify and stop sources of pressure against the media, will be crucial to organizing elections that meet international standards.

2. Judicial Remedies
   Confidence in electoral and political processes requires that effective remedies be available to resolve disputes concerning electoral rights and electoral challenges. An important signal to the political contestants and the public would be sent if the Congress appointed prominent, respected and independent jurists to fill the three seats remaining open on the Constitutional Tribunal. Both those supportive of government and in opposition should join in accomplishing this task. Another important signal would be for Peru to re-accept the full jurisdiction of the Inter-American Court of Human Rights. While neither of these bodies may play an immediate role in the electoral process, knowing that the full range of protections of the Constitution is in place and that the Inter-American system is available should reassure the public and political competitors.

3. Full Access to Electoral Processes for Political Contestants and Observers
   Full access to verify the integrity of the computer systems used by all three electoral bodies should be provided to the political parties and candidates, as well as to domestic nonpartisan election monitoring groups. Political party agents and nonpartisan observers should be given full access to all aspects of the election process, including the voter registry and the entire tabulation process leading to the announcement of results.

4. Media
   Electoral bodies and government leaders should call on the media to act responsibly and fairly in their coverage of the political contestants. Such voluntary behavior could make a critical positive contribution to the electoral process. In fact, media outlets and associations, as well as journalists, could undertake such actions on their own initiative.

One of the most important observations made by the delegation concerned the need for institutionalization of the democratic process in Peru. This is a challenge to government and opposition alike. The responsibility also applies to civic leaders and those from the private sector. Peru has a critical role to play in the hemisphere, and the upcoming elections provide an opportunity for the country to assume a leadership role in the democratization process. The Carter Center and NDI will continue to observe the process and are prepared to assist in any way possible those working to advance democracy in Peru.