Comments on the article “The abuses of the constitutional amendment power in Nicaragua: 1987-2024”
Comentario al artículo
Merino Menjívar, M.A. 2025. «The (AB)uses of the constitutional amendment power in Nicaragua: 1987-2024.»
Revista derecho del Estado. 63 (ago. 2025), 131–160.
Por: Matheus de Souza Depieri[1]
In the latest edition of the Revista Derecho del Estado, Manuel Merino writes about the dynamic of constitutional amendments in Nicaragua. The author analyses constitutional amendments enacted between 1987 and 2024, showing that the nation’s flexible amendment procedures have been used to advance the interests of elites. The author argues that the ease of amending the Constitution has enabled successive administrations to utilise reforms as instruments for consolidating power, often at the expense of fundamental democratic norms. The article also examines the role of judicial review, arguing that although early jurisprudence indicated a potential to curb abuse through a distinction between partial and total amendments, subsequent political interference undermined this mechanism of oversight. Overall, the article offers a thorough and critical analysis of how constitutional reform processes have been subverted to entrench authoritarian practices in Nicaragua.
To further discuss this very interesting topic, and aiming to engage in dialogue with Merino’s arguments, this brief article will further analyse (i) the judicial review under political capture; (ii) the instrumentalization of amendments for illiberal purposes; and (iii) human rights and rule-of-law impacts.
As a first point of reflection, Merino has argued that, under political capture, Nicaragua’s judicial review of constitutional change has collapsed into a largely procedural and deferential exercise, which legitimises rather than restrains abusive amendments. Over time, the appointment of Judges aligned with the dominant party and the broader erosion of judicial independence have transformed constitutional adjudication into a formalist checkpoint, accelerating democratic backsliding.
Following decades of court capture, international institutions have argued that Nicaragua’s Judiciary falls short in exercising its checks and balances functions[2]. Since the 2007 election, Ortega has “consolidated a stable and strong majority of Sandinistas Justices in the Supreme Court”[3], and, since then, the erosion of the rule of law has snowballed in the absence of an independent Judiciary.
This long-lasting trend is concerning. Keck, for example, has identified this phenomenon as an “essential component of the authoritarian playbook”, where independent courts become “agents or instruments of democratic erosion”[4], thereby entrenching the power of authoritarian-minded leaders and undermining democratic opposition. In cases such as Nicaragua’s, procedural legality can be used to erode constitutionalism from within, rendering courts and amendment mechanisms into instruments of executive entrenchment.
The second aspect to be mentioned in this brief critical reflection is the instrumentalisation of amendments for illiberal purposes. One of the key examples, as Merino has noted, is Nicaragua’s reform of presidential term limits. By first using the courts in 2009 to neutralise the constitutional ban on re-election, and then codifying indefinite re-election in 2014, elites turned formal amendment procedures into a tool to entrench incumbency, undermining alternation in power and concentrating authority in the Executive.
The trajectory in Nicaragua illustrates a broader pattern in Latin America, where judiciaries have often supported (rather than limited) presidential efforts to remove term limits. As Landau has pointed out, many Courts in Latin America “have not accepted the argument that the elimination of term limits […] poses a threat to liberal democratic constitutionalism; instead, they have suggested that term limits themselves should be removed because they pose such a threat”[5]. Courts in countries such as Honduras and Bolivia similarly deployed the “unconstitutional constitutional amendment” doctrine to strike down term limits, frequently by reinterpreting them as violations of political and human rights foreseen in the American Convention on Human Rights[6]. These decisions demonstrate how constitutional mechanisms intended to limit change can be subverted to reduce alternation of power. The strategy used by political players is often similar: the attempt to perpetuate in power does not involve merely ignoring the Constitution, but instead “incumbents universally displayed nominal respect for the constitution by using constitutional rules and procedures [such as amendments or judicial review] to circumvent term limits”[7].
The Inter-American Court of Human Rights has already decided, in the Advisory Opinion OC-28/21, that enabling presidential re-election without term limits “is contrary to the principles of representative democracy and, therefore, to the obligations established in the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man”[8]. This understanding, however, has not prevented democratic decay from remaining a key feature in some Latin American countries.
The third important aspect to analyse is the consequences of the abusive constitutionalism in the country. The cycle of democratic decay in Nicaragua has had deleterious effects on human rights and the rule of law. Following several years of abuse and democratic backsliding, Nicaragua shows weak performance across every dimension of the Global State of Democracy framework, and, since 2019, it has “declined further in numerous factors, notably, in Credible Elections, Free Political Parties, Elected Government, Civil Liberties and its related subfactors, and Civic Engagement”[9].
Formal reforms have reduced institutional checks and balances. Changes in the oversight of law enforcement, adjustments to budgetary provisions for the judiciary, and modifications to the structure of oversight institutions have limited the independence of national institutions. Measures that enable the deprivation of nationality for “traitors” chill dissent and contravene basic protections against arbitrary punishment and civic exclusion. Legal certainty declines as constitutional text is used to target opponents rather than to limit power. The result is, as urged by an UN Group of Experts, that “Nicaragua’s people [is] defenseless in face of grave human rights violations”[10]. In conclusion, Manuel Merino’s analysis debates the procedural manipulation of constitutional amendments in Nicaragua. The study reveals that the relative ease of amending the Constitution and a Judiciary that lacks complete independence have facilitated the erosion of the rule of law, leading to a decline in institutional independence and a violation of fundamental rights and civil liberties. Merino’s work reminds us that, in a scenario of democratic backsliding, a possible solution involves strengthening democratic institutions to reinforce transparency, accountability, and respect for human rights – which, in Nicaragua’s case, remain one of the key challenges for the years ahead.
[1] LL.M. (First Class), University of Cambridge (King’s College). Associate Editor, International Review of Constitutional Reform. Director of the Centre for Comparative Constitutional Studies at the University of Brasília (CECC/UnB) and Researcher at the Study and Research Group on Civil Procedure, Access to Justice, and Protection of Rights (GEPC/UnB). Lawyer. E-mail: matheussdepieri@gmail.com.
[2] Inter-American Commission on Human Rights, Nicaragua: Concentration of Power and the Undermining of the Rule of Law (OAS/Ser.L/V/II. Doc. 288, 25 October 2021) https://www.oas.org/en/iachr/reports/pdfs/2021_Nicaragua-EN.pdf accessed 30 August 2025.
[3] Azul A Aguiar-Aguilar, ‘Courts and the Constitutional Erosion of Democracy in Latin America’ (Users Working Paper Series 2020:31, Varieties of Democracy Institute, University of Gothenburg and University of Notre Dame, May 2020) https://www.v-dem.net/media/publications/uwp_31_final.pdf accessed 30 August 2025.
[4] Thomas M Keck, ‘Court-Packing and Democratic Erosion’ in Robert C Lieberman, Suzanne Mettler and Kenneth M Roberts (eds), Democratic Resilience: Can the United States Withstand Rising Polarization? (Cambridge University Press 2022) 141–68 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3476889 accessed 30 August 2025.
[5] David Landau, ‘Presidential Term Limits in Latin America: A Critical Analysis of the Migration of the Unconstitutional Constitutional Amendment Doctrine’ (2018) 12 Law & Ethics of Human Rights 225–49 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3053521 accessed 30 August 2025.
[6] David Landau, Yaniv Roznai and Rosalind Dixon, ‘Term Limits and the Unconstitutional Constitutional Amendment Doctrine: Lessons from Latin America’ in Alexander Baturo and Robert Elgie (eds), The Politics of Presidential Term Limits (Oxford University Press 2019) 53–74.
[7] Mila Versteeg, Timothy Horley, Anne Meng, Mauricio Guim and Marilyn Guirguis, ‘The Law and Politics of Presidential Term Limit Evasion’ (2020) 120 Columbia Law Review 173–220 https://columbialawreview.org/content/the-law-and-politics-of-presidential-term-limit-evasion/ accessed 30 August 2025.
[8] Inter-American Court of Human Rights, Advisory Opinion OC-28/21: Presidential Re-election Without Term Limits in the Context of the Inter-American Human Rights System (7 June 2021) Series A No 28 https://www.corteidh.or.cr/docs/opiniones/seriea_28_eng.pdf accessed 30 August 2025.
[9] International IDEA, Democracy Tracker – Global State of Democracy: Country Profile: Nicaragua (International Institute for Democracy and Electoral Assistance) https://www.idea.int/democracytracker/country/nicaragua accessed 30 August 2025.
[10] United Nations Human Rights Office of the High Commissioner (OHCHR), ‘Nicaragua’s People Defenseless in Face of Grave Human Rights Violations – UN Group’ (10 September 2024) https://www.ohchr.org/en/press-releases/2024/09/nicaraguas-people-defenseless-face-grave-human-rights-violations-un-group accessed 30 August 2025.
To cite: Matheus de Souza Depieri, “Comments on the article ‘The (ab)uses of the constitutional amendment power in Nicaragua: 1987–2024.’” in Revista Derecho del Estado Blog, April 7, 2026. Available at: https://blogrevistaderechoestado.uexternado.edu.co/2026/04/07/comments-on-the-article-the-abuses-of-the-constitutional-amendment-power-in-nicaragua-1987-2024/