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Transcript of final report_Ley de partidos politicos
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An Analysis of the Strengths and Weaknesses of Perus Political Party LawMegan Sowards, J.D.May 23, 2009
Introduction
Approved in October 2003, Perus Ley de Partidos Polticos (LPP) is the first
comprehensive political party law in the countrys history. The LPP governs three major
areas of party activity: formation and registration, internal democracy, and financing. Its
fundamental aims are to consolidate Perus political party system on a national level, to
introduce mechanisms of internal democracy and to ensure greater financial transparency.
To be sure, the law represents a significant step toward these goals. Perus
general, regional and municipal elections held in 2006 were the first to be conducted
under the new legal framework and should be celebrated as an important milestone in the
consolidation of Perus democracy. For the first time, parties submitted detailed financial
disclosure reports and designated internal electoral organs to organize the process of
internal party elections. At the same time, analyses of the law and how it functioned in
practice during the 2006 elections reveal areas of the law that must be refined or
supplemented. Now is the time to do so. Indeed, as Transparencia noted earlier this
year, 2009 presents a window of opportunity for Congress to tackle this important work. 1
The country has had sufficient time to reflect on the lessons of learned from the last
elections, yet the next elections are far enough in the future that there is a reduced risk
1 Medina, Percy et. al. La Otra Reforma: 40 Soluciones Elementales para la Legislacin Electoral . Lima:Asociacin Civil Transparencia y National Democratic Institute for International Affairs, 2007. P. 9.
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that gamesmanship designed to achieve short-term political gain will distort proposals for
the laws reform.
This analysis is the fruit of an eight-week investigation funded by the University
of Michigan Law Schools Clara Belfield and Henry M. Bates Overseas Fellowship and
sponsored by the International Republican Institutes (IRI) Peru Program. In formulating
her recommendations and assessments, the author interviewed academic experts, political
party leaders, civil society members and government officials at Perus electoral organs.
However, the recommendations and opinions it contains are those of the author and may
not necessarily represent the views of IRI.
Regional Movements and Local Political Organizations Not Subject to
Major Sections of the Law
Though there are three types of political organizations in Peru --- political parties,
regional movements, and local political organizations --- the vast majority of the
requirements set forth under the LPP apply only to the political parties. The law should
be amended to include regional and local political movements.
Regional and local political organizations are a significant force in Perus political
landscape. While there is no legal definition of a regional movement enshrined in Perus
electoral law, these groups are best understood as a spontaneous, grass-roots
organizations composed of members who feel alienated by the national parties. They
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typically activate during campaign season, but are otherwise dormant. At the present
date, there are 159 registered regional movements in Peru. 2 Four hundred and sixty-four
local political organizations registered to participate in the 2006 municipal elections. 3 In
recent years, the movements have logged many electoral victories. Twenty-one of the 25
regional governments in Peru are now headed by officials who belong to regional
movements. This is a marked decline from the prior regional elections of 2002 in which
the parties controlled 17 of the 25 regional presidencies. 4 Indeed, from 2002 to 2006, the
Alianza Popular Revolucionaria Americana APRA went from holding 12 regional
presidencies to holding two.
Under the LPP, regional movements may participate in regional or municipal
elections and local political organizations may participate in municipal elections; neither
may compete in national elections (presidential and congressional). 5 Although Article 17
of the LPP sets forth some registration requirements for regional movements and local
political organizations, they are exempt from the vast majority of the LPPs requirements,
most notably the laws requirements regarding financing and internal democracy. As
such, the LPP sets up a very unequal playing field between parties and regional
movements in regional and municipal elections. While parties must spend precious
resources conducting the internal elections and preparing the financial disclosure reports
required by the law, regional movements can focus resources elsewhere. Clearly, this
2 http://documentos.jne.gob.pe/OrgPol/default.aspx . Last accessed May 24, 2009.3 The registration of a local political organization is cancelled automatically at the conclusion of theelection pursuant to the Reglamento de Registro de Organizaciones Polticas, Article 49. Number of organizations confirmed by OROP/JNE.4Participa Peru: Nota de Informacin y Anlisis, December 2006, p 2.http://www.participaperu.org.pe/apc-aa/archivos-aa/3c6bb51ada688b58c57cb18308d59d73/NIA_60.pdf 5 Ley de Partidos Polticos (LPP), No. 28094 (2003), Art. 17.
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Among the stakeholders in this debate, there is broad agreement on this point.
However, some doubt Congress has the political muscle to take on the movements. For
example, individual members of Congress may fear losing political support among their
electorate if they do so. Still, the Comisin de Constitucin has approved a bill that
would obligate movements and local organizations to comply with the internal
democracy requirements of the LPP. 9 Although the Comisin transmitted the bill to the
full Congress for its consideration, it is unlikely to be placed on the legislative calendar.
The full Congress used a parliamentary procedure to return the bill to the Comisin for
further consideration, a move that is widely perceived as placing the bill in a political
freezer. Another bill pending before the Comisin would extend laws financial
requirements to the movements and regional groups. 10 It has not been considered as of
the date of publication.
The approval of these two proposals would go a long way to close the laws
loopholes regarding the movements, but there are many other areas where the law must
be extended to cover the movements. For example, the movements are not required to
submit to JNE by-laws which outline how internal decisions are to be made within the
organization. 11 Furthermore, unlike the parties, the movements are not subject to the
annual requirement of turning in their list of registered voters 12; nor are their registration
9 Proyecto de Ley No. 2214-2007.10 Proyecto de Ley No. 2528-2007.11 LPP, Arts. 5, 9.12 LPP, Art. 18.
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JNEs Oficina de Registro de Organizaciones Polticas (OROP) oversees the
registration of political parties and ensures that those seeking to form a new party have
met the laws requirements. Key among these are the requirements that the applicant
submit approximately 145,000 signatures of voters who support the formation of the
party, proof that local chapters consisting of 50 members have been formed in 65
provinces located in at least 2/3 of the countrys 25 departments, and by-laws that
describe how the organization will make internal decisions. 16 Those I interviewed
pointed to areas in this section that require further refinement: the signature requirement,
the committee requirement, and finally, the number of days that OROP has to verify a
party has met the requirements.
Consider the signature requirement. Political parties must gather approximately
145,000 signatures of adherentes. ONPE authenticates the signatures by ensuring that
the signer actually exists, that his signature is authentic and that his name and DNI
correspond. While the scope of my investigation did not permit me to interview the
division within ONPE responsible for verifying the signatures, some report that this
requirement has given rise to so-called signature factories. Furthermore, given that an
adherente has no subsequent obligation to a political party, the signatures are a weak
indicator of party support. As such, there is broad agreement among representatives of
the political parties that the signature requirement should be eliminated. 17 Those who
advocate the elimination of the signature requirement suggest that, instead, the JNE
16 LPP, Art 5.17Balance de los Cinco Aos de Vigencia de la Ley De Partidos Polticos. Lima: International RepublicanInstitute (IRI) and Oficina Nacional de Procesos Electorales (ONPE), 2009. P. 17.
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engage in a more vigorous verification process of the 65 party committees. 18 This
proposal has merit and should be considered. The governments resources are better
spent ensuring that the party committees are dynamic, active branches of the party within
the provinces rather than confirming that signers who may hold little allegiance to a
political party in fact exist.
Regardless of whether the signature requirement is eliminated, the existence of
party committees should be more vigorously scrutinized. As the LPP is currently written,
OROP confirms the existence of party committees and of their 50 members by
dispatching its staff of eight to each of the provinces in which the committees are located.
However, the LPP does not grant OROP the authority to investigate anything more than
the committees location and identity of its members. In order to ensure that these
committees exist more than simply on paper, the LPP should be amended to require that
the committee convene a meeting in the presence of an OROP functionary. The law
should also authorize OROP to make periodic, unannounced visits to the committees to
ensure their continued operation. Those I spoke with suspected that many parties 65
committees disappear once JNE has confirmed their existence for registration purposes.
To ensure compliance with this requirement, policy makers should consider
implementing a graduated sanctions regime for parties found to have moribund
committees. In the most severe cases, OROP should have the authority to cancel the
registration of a party whose committees have ceased to exist. 19
18 Id. at 17.19 For a fully developed legislative proposal to this effect, see Balance de los Cinco Aos de Vigencia de laLey De Partidos Polticos, p. 17.
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While the parties may balk at greater scrutiny, strengthening the registration
requirements to ensure parties have a robust presence in the regions would ultimately
benefit the parties politically. The success of regional and local movements in the last
round of elections demonstrates voters preference for candidates who address local
matters. Therefore, encouraging active party participation in the provinces would
sensitize party leadership to local concerns and raise the partys profile among voters
beyond Lima, ultimately helping the party win more votes.
The laws registration requirements should also be amended to extend the time
period by which OROP must complete the verification process. Pursuant to Article 14 of
the Reglamento del Registro de Organizaciones Polticas, once the appropriate electoral
organ has verified the signatures presented by a prospective party or movement, OROP
has five working days to review the rest of the partys application to ensure that it
complies with the remaining requirements. 20 In practice, OROP begins its field visits to
the provinces while ONPE is verifying the signatures, so it has more than five business
days to realize all of these trips. Even so, five days is a very short period of time for
OROP to conduct adequate due diligence on the other fronts. I recommend extending the
period of time OROP has to review party applications so that it can conduct a more
vigorous investigation into whether the party is a bona fide political organization.
20 Reglamento del Registro de Organizaciones Polticas (RROP)/Jurado Nacional de Elecciones (JNE) No.120-2008-JNE, Art. 14.
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While a prospective partys registration application is pending, any citizen or
association may, pursuant to the LPP, bring a challenge to the process. 21 It is laudable
that the law provides for direct citizen participation in this manner. However, bringing a
challenge to a partys registration is costly (approximately 18,000 soles) for the average
citizen. 22 Still, in 2006, groups brought five challenges; none succeeded. The formation
of watchdog groups with the resources to monitor the registration process and mount
these types of challenges should be encouraged.
Another means of ensuring the vibrancy of political parties is the LPPs current
requirement that each party submit to OPOP its padrn or list of affiliates who are
eligible to vote in internal party matters. 23 Yet, there is no sanction for parties who fail to
submit this document. Despite this fact, only three parties failed to present their padrn
in 2008. 24 Electoral officials at the JNE note that this uptick in compliance corresponds
to the fact that elections are approaching. In previous years, the rate of compliance was
much lower. For example, in 2005 only 5 of the 27 parties turned in their padrn by the
deadline. 25
The LPP should be amended to require regional movements to submit a padrn
and to implement a graduated sanctions regime for those parties and regional movements
who fail to do so. For example, parties and movements who are simply late in submitting
21 LPP, Art. 10.22 RROP/JNE: arts. 17-19, 22.23 LPP, Art. 18.24 http://documentos.jne.gob.pe/OrgPol/default.aspx . Last accessed May 24, 2009.
25 Partidos No Entregan Padrn de Afiliados. Peru 21 31 Mar. 2005 :http://peru21.pe/impresa/noticia/partidos-no-entregan-padron-afiliados/2005-03-31/110845 .
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the document should be fined, while OROP should have the authority to cancel the
registration of those who fail to submit a padrn altogether. This regime must be
developed through an amendment to the LPP; it cannot be done through an administrative
rulemaking. In addition, JNE should exert pressure on the parties to comply with this
requirement by announcing publicly the parties that have complied with the requirement
and those who have not. In 2009, JNE released a press release that listed the parties that
complied with the requirement but it did not mention the three that did not. 26
Internal Democracy
The second major area that the LPP regulates is the internal democracy of Perus
political parties. While my eight-week investigation did not permit me to conduct an
exhaustive investigation of this aspect of the law, a cursory examination of this area
reveals two major subjects that deserve further study and possible amendment.
First, the law does not authorize government oversight of the parties compliance
with the internal democracy requirements, either on the front end through obligatory
government assistance with internal party elections or on the back end through
sanctions. 27 Though the law authorizes ONPE to provide technical assistance to the
parties in complying with these requirements, he parties themselves must request this
assistance. Roughly half of the registered parties have done so.
26http://www.jne.gob.pe/prensaypublicaciones/archivonoticias/Paginas/TRECEPARTIDOSPOL%C3%8DTICOSPRESENTRONPADR%C3%93NDEAFILIADOSALJNE.aspx27 LPP, Art. 26.
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In crafting proposals to ensure that internal party affairs are conducted
democratically, policy makers should consider measures to ensure greater governmental
involvement at the outset of the process. While a sanctions regime might deter some
from engaging in undemocratic practices, they are likely to be imposed after popular
elections have already occurred and therefore would not be as effective in achieving the
end goal of ensuring that a given partys slate of candidates was chosen in a democratic
manner. To this end, the law should authorize ONPE to provide obligatory technical
assistance to the parties. There is a proposal pending before Congress to this effect and it
should be adopted. 28
While some have proposed that the JNE assume a greater administrative role in
this regard, the JNEs constitutionally designated role as the highest judicial body with
respect to adjudicating disputes regarding a partys compliance with the electoral law
renders it unsuited for this task. The law should ensure a marked separation between
judicial and administrative functions to ensure the impartiality and public confidence in
JNEs judicial capacity.
The second major area of the LPPs internal democracy title requiring further
refinement is the gender quota. Under the LPP, 30 percent of the candidates on each
partys slate of candidates for Congress and municipal and regional councils must be
either male or female. To be sure, the gender quota has led to the greater representation
28 Proyecto de Ley No. 2297-2007.
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of women in government. For example, since the gender quota was first implemented in
1997, the representation of women in Congress has increased from 11 to 29.7 percent. 29
Nevertheless, the gender quota does not guarantee female representation in
Congress. In a proportional representation system such as Perus, congressional seats are
held by parties and not individual candidates. The number of seats each party holds is
determined by the percentage of votes it obtains. The individuals who fill these seats are
then determined based on their position on the partys candidate slate. The LPP does not
regulate the order of the candidate slate. Thus, under the LPP, a party could comply with
the gender quota by ensuring that 30% of its candidates are women, but place the female
candidates at the bottom of the candidate slate. Unless that party won 100 percent of the
vote, the female candidates at the bottom of the list would have almost no chance of
being seated in Congress.
Perus electoral law allows voters some opportunity to reorder a partys candidate
list through the preferential vote. In 2006, six of the 35 female members of Congress
were elected as a result of the preferential vote. 30 Under this system, voters are allowed
to designate two candidates whom they wish to be seated first, despite their position on
the candidate list.
29Gallo, Maxim, Kristen Sample, and Gregory Schmidt. Las Elecciones Legislativas Peruanas en 2006:Un Caso Exitoso de Cuotas con Voto Preferencial. In El Impacto de las Cuotas de Gnero en AmricaLatina: Mujer y Poltica, ed. Marcela Ros Tobar. Santiago, Chile: FLACSO, 2008. P. 182.30 Oficina Nacional de Procesos Electorales (ONPE). Democracia en los Partidos Polticos: Anlisis de lasElecciones Internas 2005-2006. Lima: ONPE, 2006. P. 46.
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Indeed, despite these measures designed to facilitate womens participation in
politics, most of those I interviewed agreed that more must be done to achieve this goal.
On this controversial political topic, however, there is a sharp divide regarding how to do
so. Some advocate requiring parties to list candidates on the slate alternating between
male and female. A more middle-ground position would require parties to locate at least
some of their female candidates at the top of the list. Others would amend the LPP to
impose greater sanctions on those parties that fail to comply with the laws internal
democracy title, but allow the party autonomy in ordering its list.
While time constraints did not permit me to conduct an analysis of this area of
the law with depth sufficient enough to recommend a particular approach to ensuring
greater female representation, I noted significant confusion among the electorate and
members of Congress alike about how the gender quota functions. Groups such as IRI
can advance efforts to reform the law in this regard by providing educational materials
and trainings for voters, parties, government officials and the news media regarding this
mechanism.
In addition, reforms to the preferential vote mechanism, which Congress has
recently considered eliminating, should be carefully weighed in light of its link to
womens participation in Congress. 31 As I note above, the preferential vote allows voters
to reorder the composition of a partys slate of candidates and has allowed female
candidates who occupy an undesirable position on the candidate slate to be seated in
31 Santilln, Jos. Habr 10 congresistas ms en el Parlamento tras las elecciones del ao 2011. ElComercio 22 May 2009: http://www.elcomercio.com.pe/noticia/289917/pleno-congreso-aprobo-elevar-130-numero-parlamentarios .
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Congress. In 2006, six of the 35 female members of Congress reached office as a result
of the preferential vote. 32 While there are persuasive arguments both for and against the
preferential vote, the fact remains that if it is eliminated, voters would have no
mechanism by which to reorder the candidate slate and must depend on parties
themselves to place women in favorable positions on the list. Groups such as IRI should
make clear this link to those involved in debating reforms to the bill. In my view, any
proposal to eliminate the preferential vote should be accompanied by mechanisms to
further strengthen the internal democracy requirements of the LPP.
Political Party Financing
The LPPs title regarding the financing of political parties is transformational.
For the first time in the countrys history, it authorizes direct public funding for those
political parties that obtain congressional representation and prescribes a formula by
which the funds are to be distributed annually over a five-year period: sixty percent of
the total funds received by a party is based on the number of votes the party received in
the previous congressional election; the other 40% is distributed equally among all of the
parties. 33 Had the government disbursed public funding to the parties for the five-year
period 2007-2011, the 11 political parties currently represented in Congress would have
shared in the receipt of approximately 52 million soles or $17.3 million dollars.
32 Democracia en los Partidos Polticos , p. 46.33 LPP, Art. 29.
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Nevertheless, under the law, distribution of the funds is subject to budgetary
availability. 34 Pointing to this clause as its rationale, the current government --- led by
APRA --- has not disbursed public financing as called for under the law. There was
broad consensus among those I interviewed that the root causes for the states failure to
distribute these funds are two: (1) it is politically expedient for APRA to maintain the
status quo in which there are numerous, but weak, political parties; and (2) the general
public holds the political parties in such low esteem that it would be politically unpopular
for APRA to provide taxpayer money to the parties. 35 In short, the parties are trapped in
a vicious cycle. So long as there is scant public support for public financing of the
parties, it is unlikely that any government in power would risk the political fallout
associated with disbursing the funds. Yet, without the funds, the parties have little hope
of becoming fully professional entities, and in turn convincing the Peruvian electorate
that they are worthy of receiving the funds.
It is critical that Peru break this vicious cycle for the funds would go a long way
to help the parties professionalize their operations. Currently, most party officials hold
other, full-time employment and many volunteer their time. At the regional level, the
base of party operations is often the home or business of a supporter and there is a
notable lack of coordination among national and regional party officials. Owing to this
reality, there is widespread agreement among the Peruvian political parties that the funds
34LPP, Disposicin Transitoria Tercera.35 According to a 2007 poll conducted by Latinobarmetro, only 14% of Peruvians had confidence inPerus political parties. A December 2008, IRI-sponsored poll of 2500 Peruvians residing in five major regions of the country indicates that only 11.8% of those polled thought that parties should receive statefunds.
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should be disbursed. The parties should capitalize on this area of consensus to pressure
the current government to release the funds.
Should the parties persuade the government to disburse the funds, it is critical that
ONPE develop a legal framework to govern their use and that its budget be increased to
adequately ensure that the parties comply with these requirements. There is already a
skeleton of a legal framework in place: the LPP and a corresponding administrative rule
specify the purposes for which the funds can be used. 36 This must be fleshed out to
require the parties to keep records of how the funds are used, to authorize ONPE to audit
the parties to determine that the funds are being used for authorized purposes and to
specify sanctions for parties that might misuse the funds. According to experts in
Peruvian administrative law, the accounting and audit guidelines could be developed
under a rulemaking by ONPE. On the other hand, any sanctions regime must be
implemented through an amendment to the LPP itself. I recommend that to be eligible
for public funds, the government require the party to submit a letter of agreement and a
written certification in which party agrees to:
Spend public funds only for formation, training and research;
Keep records and supply evidence of qualified expenses;
Cooperate with an audit of expenses;
Repay misused public funds, if necessary; and
Pay any civil penalties imposed by the ONPE.
36 LPP Art. 29. Reglamento de Financiamiento y Supervisin de Fondos Partidarios (RFSF), Arts. 4-5.
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With regard to the sanctions regime, monetary penalties are perhaps the most
appropriate model and the government should consider ensuring that the parties pay these
fines by authorizing ONPE to withhold future disbursements of public funding in the
event that a party fails to pay the fine directly. This amendment should also specify a
mechanism by which the parties can challenge the findings of the government audit or
imposition of sanctions.
In parallel with this effort, the parties must work to develop adequate systems to
administer the funds. Indeed, ONPE notes that many of the parties have not developed
internal accounting systems, as required under the LPP, to ensure the proper handling of
party finances. Foreign governments and civil society groups can lend assistance in this
regard such as by familiarizing party officials with the permissible uses of public funding
and helping officials gain the necessary accounting skills to prepare disclosure reports.
Although it appears that it will be an uphill climb for the parties to convince the
government to disburse the funds, the parties should continue to press the state to
disburse the funds for it will inevitably spark an important national conversation about
the health of the political parties in Peru and their level of responsiveness to constituent
needs. While it would be legally permissible for foreign governments or foreign
political parties to provide direct financial assistance to Perus parties for party formation,
training or research 37, most experts agree that this is an unpalatable option. It would be
financially difficult to fund all of the political parties registered in Peru and funding some
of them would certainly generate charges of favoritism. In addition, a recent poll
37 LPP, Art. 31.
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conducted by IRI indicates that only 8.2% of Peruvians polled would favor foreign
funding of the countrys political parties. 38
Indirect Public Financing
One alternative that the parties may wish to propose in their negotiations with the
government on this subject is dedicating the funds that the state currently expends on
providing the franja electoral to public financing. In 2006, the government spent
approximately 20 million nuevos soles to provide the parties with free access to radio and
television time between 30 and two days prior to general elections. 39 Yet, as many of
those I spoke with observed, some parties do not have the financial means to develop a
sophisticated, professional advertisement to air during their allotted times. In funding
the franja and not party training and formation, the government, in my opinion, has its
priorities out of order. Ensuring more professional, better trained and adequately staffed
parties with a robust presence throughout the country is a more urgent priority than
providing for political advertising.
Private Financing
The LPP also limits the amount of money that parties may receive from donors
and bars parties from accepting contributions from religious orders, state entities and
state-owned businesses. It also limits, to some degree, donations from anonymous
38 Evaluacin ex ante del proyecto Todos Hacemos Poltica , Question #38. Encuesta IRI. Cinco ciudades.Diciembre 2008.39 LPP, Art. 37.
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donors and foreign governments. 40 For example, individual donors as well as legal
entities such as corporations can donate up to approximately $70,000 annually to a party.
Nearly everyone that I interviewed agreed that this was an appropriate limit though one
high-ranking political party officer suggested the limit be increased to keep pace with the
rising price of television advertising. Overall this does not seem to be a problem area in
the law.
Disclosure
The LPP requires parties to submit financial disclosure reports to ONPE at
periodic intervals. They are required to submit an annual balance sheet detailing income
and expenses as well as biannual reports that identify the source and amount of cash and
in-kind donations from private sources. During campaign season, parties must submit
this information bimonthly. Sixty days after the results of the election are proclaimed,
parties must submit an accounting of their campaign expenses. ONPE publishes all of
these reports in full on its website.
On the whole, parties are complying with these requirements despite the fact that
the sanctions for not doing so are toothless. Indeed, the only consequence for not
submitting the information is the loss of public funding, but since the state has not
disbursed these funds, this is a hollow threat. Nonetheless, in 2007, only four parties
failed to submit their annual report. 41 The rate of compliance for the biannual and
bimonthly reports is nearly the same. For example, during the 2006 general elections,
40LPP, Art. 31.41 http://www.onpe.gob.pe/modFondospartidarios/downloads/Comunicado.22.01.2009.pdf . These include
Despertar Nacional, Partido Politico Adelante, Agrupacin Independiente Si Cumple, Fuerza Nacional.
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ONPE reports that 94 of the required 102 bimonthly reports were submitted. 42 The eight
reports that were not submitted corresponded to three political parties. 43 Despite this
generally high rate of compliance, this area of the law should be amended in favor of a
graduated system of monetary fines, uncoupled from the receipt of public funding.
ONPE has proposed such an approach, though the formal proposal is still being vetted
internally. The parties have also begun to develop a consensus regarding what such a
regime would look like. In late 2008, IRI convened roundtable discussions on the subject
in which party members, government officials, and civil society members participated.
The group proposed a very reasonable sanctions regime that would impose monetary
fines commensurate with the gravity of the infraction. 44
As part of this reform package, Congress should consider requiring the parties to
include their campaign expenditures in the bi-monthly reports parties must submit during
campaign season. Currently, the LPP requires the parties to submit this information 60
days after the results of the election are proclaimed. Providing this information before
the election would have a two-fold effect: it would further pressure campaigns to fully
disclose their contributions by providing an indirect mechanism to verify the veracity of a
partys reported donations and provide information that rival campaigns, journalists and
citizens could use to make a more informed decision in the voting booth. Financial
disclosure reports should also include the donors employer information to permit
42Primera Experiencia de Rendicin de Cuentas y de Verificacin y Control. Partidos y Democracia , Ao IV, No. 15, Febrero 2007: p. 4.43Medina, Percy. Rendicin de Cuentas, Control, y Divulgacin: El Dinero en las EE. GG 2006. InCinco Aos de la Ley de Partidos: Qu Cambi y Qu Falta Cambiar?, ed. Jorge Valladares. Lima:Coleccin Agneda Integridad, Biblioteca de la Reforma Poltica N 7, 35-50, 2008. P. 38.44 Balance , p. 53-54.
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analyses of which industries are favoring particular parties. The parties would clearly
need greater resources in the form of public financing to comply with these amendments,
however. On a practical note, this process could be simplified by requiring that all
parties use the same software to prepare these reports.
Though the law does not specify a deadline by which ONPE must publish this
financial disclosure information on its website, in practice, ONPE typically makes the
information available approximately two weeks after receiving it from the parties and
after an initial verification process. ONPEs speed in publishing the information is
laudable, but Congress should consider amending the law to require ONPE to publish the
raw data in almost real time. This is especially critical during campaign season. Parties
could make their compliance with the transparency rules a selling point in their
campaign.
In tandem with legislative reform efforts, it is critical to encourage investigative
political journalism and cultivate the growth advocacy organizations that press for greater
transparency in government. Providing greater information to the public regarding
political financing is one of the most effective ways to ensure greater participation in the
political process. 45 Civil society groups such should consider sponsoring workshops that
train journalists in how to use information available through government websites and the
Law of Transparency and Access to Public Information to shine the spotlight on money
in politics. They can also provide positive incentives for parties to disclose this
45Ferreira Rubio, Delia M. Financiamiento Poltico: Rendicin de Cuentas y Divulgacin. InDe Las Normas a Las Buenas Prcticas: El Desafo del Financiamiento Poltico en Amrica Latina, ed.Steven Griner and Daniel Zovatto. San Jose, Costa Rica: OEA and IDEA, 2004. P. 79.
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information by publishing scorecards that highlight each partys compliance with the
LPPs major requirements.
Accuracy of Information
To administer the new financial disclosure requirements, the LPP authorized the
creation of the Office of Supervision of Party Funds (GSFP) within ONPE, to which the
parties must submit their disclosure reports. The LPP assigns the GSFP the exclusive
responsibility to verify and audit the economic and financial activity of the parties. 46
Nevertheless, Article 178 of the Constitution grants the JNE exclusive investigative
authority in electoral matters. In short, JNE lacks the statutory authority to investigate
the parties and ONPE lacks the constitutional authority to do so. As a result, no one is
fully investigating the party reports. To remedy this catch-22, a constitutional
amendment would be required to grant ONPE full oversight authority. It is extremely
unlikely that this would occur. JNE, which was founded in 1931, is a powerful
organization that is unlikely to agree to cede this authority to ONPE. On the other hand,
ONPE is unlikely to press for it because, as the younger organization (created in 1993),
the fear of being abolished or having its budget cut looms in the background.
This is not to say that ONPEs GSFP is a rubber stamp. The GSFPs team of
accountants regularly contacts donors listed in party disclosure reports to verify that they
indeed donated to the party. This questioning is conducted under oath, so there is some
incentive for those contacted to tell the truth. Nevertheless, GSFP does not have the
authority to investigate individual donors so they much take those contacted at their word
46 LPP, Art. 34.
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that they did or did not provide the donation in question. GSFP also shares the
information with the Unidad de la Inteligencia Financiera (UIF), an investigative body
that works to detect money laundering. If the UIF spots a problematic donor on a
financial disclosure list, it has the authority to open a government inquiry into the matter.
ONPE does not.
Individual candidates failing to notify their party of contributions received
Without government oversight it is difficult to determine the accuracy of party
financial disclosure reports. It is clear, however, that most parties financial disclosure
statements do not fully account for the funds raised and expended by individual
candidates. As it is currently written, the LPP requires that candidates inform their party
of the contributions that they receive and the party must in turn include these donations in
the financial disclosures they provide to ONPE. Despite this prescription, many
candidates are not doing so and the parties lack the wherewithal to detect when this is
occurring. Indeed, experts widely acknowledge that during the 2006 elections this
problem was rampant. To illustrate, an ONPE publication notes that one of laws
principal deficiencies highlighted in the 2006 campaign was a lack of communication
between individual candidates and their party regarding funds received by individual
candidates. 47 A Transparencia publication estimates that during the 2006 election
season, individual candidates spent more than 2 million soles on publicity without the
knowledge of their party or alliance. 48
47 Partidos y Democracia, p. 5.48 Medina, p. 42.
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members of congress, realizing that as candidates they would be subject to these
reporting requirements, scrapped them. At the very least, civil society groups should
pressure ONPE to sanction parties whose candidates do not report their expenditures.
In the long term, if Peru continues to maintain its preferential voting system, the
LPP should be amended to require individual candidates to render accounts and to
provide for sanctions for those who do not. This too would necessitate an increase in
ONPEs budget and personnel. In this regard, there are few models employed in the
region to look to since few Latin American countries require individual candidates to
render accounts. 50 Colombia offers one model: it requires presidential and parliamentary
candidates to provide regulatory authorities with records of their campaign
expenditures. 51 Under the Colombian system, candidates must present periodic campaign
finance reports to the government, which has the authority to audit the reports and impose
sanctions in the form of monetary fines, reduction or elimination of public funding. 52
Graver still, a successful presidential candidate proven to have violated Colombias
financial norms, may be barred by the Congress from assuming the post altogether. 53
Publicity being contracted by individual candidates/National Treasurer the only
one who can contract publicity
50 Zovatto, Daniel. The Legal and Practical Characteristics of the Funding of Political Parties and ElectionCampaigns in Latin America. In Funding of Political Parties and Election Campaigns, ed. ReginaldAustin and Maja Tjernstrom, Stockholm: IDEA, 2003. P. 108.51 Id.52 Hernandez Becerra, Augusto. Regulacin de los Partidos Polticos en Colombia. In RegulacinJurdica de los partidos politicos en Amrica Latina, ed. Daniel Zovatto, Mexico: International IDEA andUniversidad Nacional Autnoma de Mxico, 2006. P. 353.53 Id.
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and what form they should take. In particular, an analysis of the gender quota and how it
has functioned in practice would be timely in light of Congress intention to consider
legislation to eliminate the preferential vote. Future studies of the law might also
examine the party by-laws on file with OROP to determine whether they include the
provisions prescribed by the LPP. Despite this long list of suggestions for future
refinements and further study, it is worth remembering that little more than five years
ago, Peru was one of the few Latin American nations without a comprehensive political
party law. Its passage of the LPP and associated administrative rulemakings represents a
significant step forward in the process of strengthening the legal framework that governs
Perus political parties and in turn ensuring their robust participation in the governance of
the country. Now the task is to refine this solid foundation to ensure the further
consolidation of Perus political party system.