By mid-December of 2015, many in the Colombian political establishment were complimenting the Minister of Interior, Juan Fernando Cristo, the man in charge of the government’s legislative agenda. Cristo had just managed to pass a law through Congress that allows the president to call for a referendum in which Colombians could approve or reject the peace accords settled by the Santos administration and the FARC guerrillas in Havana, Cuba.
The government is calling it a plebiscite, but in reality it seems more like a referendum, in which the final decision of voters results in an obligatory mandate for the government. According to the Constitutional Court, plebiscites are meant for cases in which people express their approval of a governmental decision, serving as a consultative figure.
In contrast, referendums are designed for situations in which the government puts into consideration the approval of a specific law or decision leaving the result as legally binding for the administration.
Historical background
In July 1822, the people of San Andres Island carried out the first referendum held in Colombia after independence from Spain. Local voters chose to annex the island to Colombia and join the country as a new department. International Law expert Enrique Gaviria Liévano considers this election as a legitimate expression of the self-determination of the sanandresano people.
The second referendum held in Colombia came 64 years later, when President Rafael Nuñez introduced a new constitution that could steer the country into a conservative and centralized model. He called for the municipalities to vote on a series of proposals considered as the bases of the new constitution. A total 605 out of 619 municipalities voted in favor of Nuñez’s plan, clearing the way for the new constitution. This was the first national referendum.
Almost a century later, Colombia carried out the third referendum. In 1957, after Dictator Gustavo Rojas Pinilla was overthrown by a coup, the transitory military junta that took power called for a “plebiscite” to introduce 14 constitutional amendments.
Here too, authorities mistakenly called it a plebiscite instead of referendum, since it was a binding approval of modifications to the constitution. A majority of Colombians approved the referendum, starting a new political era called Frente Nacional in which the two traditional parties agreed to share the presidency for 16 years. Interestingly, the reforms included a prohibition on future referendum or plebiscites.
By 1990, Colombia held the first and only authentic plebiscite in its history. A group of students promoted the inclusion of an additional ballot in the presidential election, asking people whether they approved the creation of a new constitution.
Although such a consultative figure was banned by the 1886 constitution, the ballot was finally included in the election and more than two million voters informally approved the proposal. This created a de facto public request to which the government opted to accept by ordering the electoral authorities a formal scrutiny of the votes.
Finally, the newly elected President, César Gaviria, had no choice but to summon a Constitutional Assembly for the creation of a new constitution.
The last national referendum was held in 2003 when Conservative President Alvaro Uribe managed to receive Congressional approval to launch a referendum with 15 constitutional amendments, related mainly to political and judicial issues. Despite Uribe´s high popularity, voters only approved one of the 15 questions in the ballot, which proved a costly defeat for the government.
The Plebiscite for Peace
The government has named the newly-approved referendum as the Plebiscite for Peace. It is a hybrid figure with elements of both a plebiscite and a referendum because it asks voters in a consultative manner but includes a binding article that would mandate the government to accept the terms. Constitutional experts who sympathize with the opposition have criticized the legality of this political maneuver since it was first proposed.
Meanwhile, President Santos has promised to dismiss the peace accord with FARC guerrilla if the “No” votes win. This issue dates back to a promise Santos held in his reelection campaign. He repeatedly said Colombian voters had the final say in the peace process.
He intends to make people feel it is a national cause, not a personal ambition of the president. Experts say it was an unnecessary promise, since the 7 million votes that re-elected Santos already served as a support to his efforts to negotiate peace with the guerrillas.
The referendum also contains a controversial article that reduces the amount of necessary votes to validate the agreement. Historically, referendums need 50% of the electoral threshold to be considered effective, or 16.8 million votes (a very high figure considering Colombia’s electoral history of low voter turnout).
However, President Santos said he does not want the opposition to play with electoral abstention to fight the referendum. He opts to see a Yes or No battle, in which voters are not invited to stay home. Therefore, the electoral threshold has been reduced to 13% of the total voters, or 4.3 million votes, an easily achievable goal.
It is an indeed a controversial referendum that the opposition is not willing to accept. The main argument for the opposition right-wing Uribistas (Centro Democratico Party) is that the government has modified traditional rules into its favor, while all previous administrations had to play by the same standards. Santos has reacted by saying that such a crucial and historic circumstance deserves special rules and not the ordinary procedure.
Meanwhile, Farc negotiators in Havana say they oppose the referendum, stating that the ideal way of implementing the accord is by way of a Constitutional Assembly. This is ironically what the right wing opposition also wants, maybe as a way of bringing Alvaro Uribe back to power by approving indefinite reelection of presidents in a new constitution.
President Santos may be regretting the costly promise he made at the beginning of the peace process when he was a candidate. Such a promise could throw away the results of three long years of costly negotiations.
