Venezuela: A sitting president vs a self-appointed one

The opposition leader in Venezuela, Juan Guaido, swore an oath in which he appointed himself as the interim president of Venezuela on Wednesday. 

The US government has been pushing for such a move for some time and as recently as January 17 declared its willingness to back the leader of the opposition as the ‘legitimate’ leader of Venezuela.

US President Donald Trump, in a decree announced shortly after Guaido’s oath, announced that the US would recognise the opposition politician - that America endorses - as interim president.

In September of last year, the New York Times reported that the Trump administration was in discussions with disgruntled military leaders with the aim of fostering a coup.

But what is the legal basis, if any, for Guaido to appoint himself?

To understand the most recent crisis, one only has to go back to the presidential elections, boycotted by the opposition in May of last year, and which President Nicolas Maduro won, securing himself a second six-year term.

The opposition in 2015 swept the legislative elections with 56 percent of the vote, yet refused to participate in 2018 presidential elections when it could have conceivably won.

The opposition has found it difficult to counter the Maduro government, sharing little in the way of a unified policy or ideological view of governing beyond the overthrow of Maduro.

Guaido was elected to parliament, known as the National Assembly, in 2015 and in January 2019 he was sworn in as its president.

After the 2015 opposition election victory, the National Assembly set about frustrating the actions of the Maduro government. In addition, it also refused to unseat three lawmakers who were under investigation for voter fraud, leading to the courts ruling that the legislative body was “null and void”.

A report from think tank Brookings argued that the opposition could have used the momentum to push through oil sector, military, and welfare reform.

“The stress of legislating, however, may have simply been too much to bear for an elections-focused coalition,” the report added.

In turn, the Maduro government responded by stripping the National Assembly of its powers and the Venezuelan Supreme Court went on to rule that future decisions made by the National Assembly were unconstitutional.

The Maduro government under the pretext of not receiving cooperation from the legislators, then set up a constituent assembly — a parallel legislature that was designed to elect members from rural areas, where Maduro’s popularity is intact.

It was also given the task of rewriting the constitution, a move that the opposition referred to as a ‘self-coup’, whereas Maduro justified it as necessary to guarantee the stability of the country. Then elections were held in 2017 - which the opposition boycotted - giving Maduro dominance in the new legislative assembly.

Fast forward to 2019, and Maduro is sworn in as the president of Venezuela five days after Guaido was sworn in as president of the National Assembly.

The ensuing showdown resulted in the US putting its weight behind a new leader: Guaido.

Guaido has used Article 233 of the Venezuelan constitution to appoint himself as acting interim president of Venezuela, however, it's not entirely clear if legally he has the authority to do that since the National Assembly has been stripped of its power.

Maduro can conceivably claim that he won in an election that the opposition chose to boycott. He won more than six million votes with an election turnout of 46 percent.

The opposition has in the past charged that elections under a Maduro government could not be free or fair. However many analysts in the past have pointed to the fractured nature of the opposition as the main driver of its inability to mount a serious opposition to Maduro.

Francisco Rodriguez, an opposition economist and political analyst, has said that “US jurisprudence requires the courts to recognise the government that establishes the foreign policy of that country”.

He added: “This implies that a legitimate government of Venezuela appointed by the National Assembly may take possession of assets abroad.” This includes the sale of oil to the US and other countries that recognise it, said Rodriguez.

This position would still leave Maduro in charge as the Maduro government commands the levers of power and is the sole representative at the UN.

Venezuelan Foreign Minister Jorge Arreaza has condemned US attempts at orchestrating a coup saying in a tweet: “Venezuela demands respect for its democracy. While President Maduro calls for respectful dialogue with the US, Secretary Pompeo and other extremist spokesmen look to destabilise the country and incite violence. The Venezuelan people will defend its sovereignty and its constitution”.

In appointing himself as the acting president of Venezuela, Guaido runs the risk of being seen as an illegitimate leader who, having refused to run for presidential elections, now attempts to become the president with US assistance.