THE LEGAL AND POLITICAL SYSTEM IN HAITI
1. On September 17, 1988 a group of non-commissioned officers ousted Lt. Gen. Henri Namphy from the presidency and replaced him with Lt. Gen. Prosper Avril. Since these events have just occurred it is not possible to evaluate their impact at this time nor to predict how the situation will evolve. It should be noted, however, that these officers have called for the restoration of the 1987 Constitution, which must be amended, but they insist that Article 291 be maintained. This chapter discusses the significance of the 1987 Constitution.
A. THE STATUS OF THE RULE OF LAW UNDER THE MILITARY GOVERNMENT OF LT. GENERAL HENRI NAMPHY
2. On June 20 1988, Lt. Gen. Namphy announced to the Haitian people that the military had seized power because the President of the Republic, Leslie Manigat, had violated the Constitution by striking a blow at the Army in order to turn it "into a docile instrument of his personal power".1 Lt. Gen. Namphy abolished the Legislature and abrogated this same Constitution when he seized power. He governed by decree.
3. Lt. Gen. Namphy has stated that the Haitian people are not ready for elections and that only the Army can bring about democracy.2 In the opinion of Lt. Gen. Namphy political solutions would take shape along the way, as normalization occurs.
4. On July 8, 1988, Lt. General Namphy announced that a new constitution would be drafted which "must be strong and effective enough to direct the nation and ensure its future regardless of the circumstances. This was to have been the objective of the 1987 Constitution. Unfortunately, drawn up and ratified in an atmosphere of passion and emotionalism, this Constitution strayed too far from our traditions".3 No timetable was offered by the military as to when this new constitution would be presented.
5. Rev. Sylvio Claude, one of the leading opposition political figures, rejected Lt. Gen. Namphy's legal power to abolish the Constitution of 1987 and called for new elections to be held, pursuant to Article 149 of that Constitution, which provides:
Should the Office of the President of the Republic become vacant for any reason, the President of the Supreme Court of the Republic, or in his absence, the Vice President of that Court, or in his absence, the judge with the highest seniority and so on by order of seniority, shall be invested temporarily with the duties of the President of the Republic by the National Assembly duly convened by the Prime Minister. The election of a new President for a new five (5) year term shall be held at least forty-five (45) and no more than ninety (90) days after the vacancy occurs, pursuant to the Constitution and the Electoral Law.
6. As the Commission stated in its 1985-1986 Annual Report concerning the CNG:
The Commission concludes that the National Governing Council, at least for the moment, has managed to quell the on-going protest demonstrations that have plagued this Government since it assumed power having now announced the long-awaited timetable for transition to a democratically elected government. Underlying problems remain, however, in that the Council's acts have no juridical basis. The Council proposes to function as a government for a two-year period without the creation of the other branches of government. It proposes to pass laws without an independent judiciary. Unless the transition process is democratized and allows greater participation of the general populace, it is foreseeable that such protest will resume.
7. In its meeting with Brig. Gen. Hérard Abraham, Minister of Foreign Affairs, on August 29, 1988, the Commission's delegates asked the Foreign Minister for the reasons behind the coup d'etat. Brig. Gen. Abraham stated that the Manigat Government had been attacking the stability of the country's institutions by attempting to undermine the authority of the Commander-in-Chief of the Haitian Armed forces, Pursuant to the 1987 Constitution the president is only the "nominal" head of the Armed Forces whereas President Manigat was trying to make changes in the Army behind Lt. Gen. Namphy's back. In addition, President Manigat attempted to remove Lt. Gen. Namphy, who pursuant to the 1987 Constitution was to have remained in his position for a three-year term. President Manigat "violated the Constitution", and therefore, stated the Foreign Minister, he was ousted in order to prevent the establishment of a civilian dictatorship. In addition, the Minister of Foreign Affairs underlined the fact that President Manigat's ouster was met with total indifference in Haiti, "if anything", he said, the "people were glad."
8. In the opinion of the Foreign Minister, when the people approved the Constitution they really were only voting on Article 291 (the provision of the Constitution which disqualified Duvalierists from running for public office for a period of then years). He stated that they were "misled" and that the military government would "improve" the Constitution.
9. As regards a timetable for these changes, which the Minister predicted "will be opposed by some", he informed the Commission that the new Constitution will be ready "very soon". The timetable for a return to democracy, he said, depends on various factors, such as the establishment of the chambers of a legislature, the setting up of an electoral council, the registration of voters and the like. The Foreign Minister insisted, however, that the military government is a democratic government, albeit a de facto government, and that it "is not a dictatorship". The problem for the country, he said, has been "foreign interference", and added that there are plans to change the Concordat with the Vatican because there has been undue interference by the Church. The Church, which since the Pope's visit to Haiti has been in the forefront of the movement for a change in the status quo, has in recent months been the target of repeated attacks by the members of the military regime. As for the abrogation of the Constitution at the present time, the Foreign Minister stated that "only foreigners are concerned about this," and that in his opinion "Haitians are already free and enjoy human rights".
10. In the view of the Minister of Justice, Brig. Gen. Fritz Antoine, with whom the delegation also met on august 29, 1988, the fact that the Constitution is not in force does not matter since "it is only a framework". The laws, such as in the Criminal Code and the Criminal procedure Code, still in force. The military Government rules by decree when it deem it necessary to legislate. The Minister of Justice added that since the Constitution had been revoked, the police is now under the Ministry of the Interior instead of under the Ministry of Justice, as stipulated in the Constitution, but this was not achieved by a decree. In addition, he stated that a decree was passed abolishing the death penalty. The death penalty had also been abolished by the 1987 Constitution.
11. The structure of the democratic state which was intact during the Government of Leslie Manigat, with whatever flaws, was abolished, and what replaced it was a military government which termed itself "democratic". Col. Jean-Claude Paul, Commander of the Dessalines barracks, in an extensive discussion with the delegation on September 1, 1988, informed the Commission that the military "are democrats" who "love and defend" the Haitian people.
12. It is true that there were no public demonstrations following the ouster of President Manigat and that his removal was greeted with total indifference by the Haitian population. There were also no demonstrations in favor of the 1987 Constitution, which the military coup effectively suspended. It does not follow, however, that the Haitian people welcomed the new era of law by military fiat. To understand the importance of the 1987 Constitution in the Haitian political process during the past almost three years since the departure of President-for-Life Jean-Claude Duvalier, this chapter sets forth an analysis of the 1987 Constitution which, as the expression of the national sovereignty, embodies the aspirations of the Haitian people. The 1987 Constitution, which Brig. Gen. Abraham said was identified in the minds of many Haitians with Article 291, is inherently anti-Duvalierist. In the opinion of the Commission the 1987 Constitution cannot be understood without a description of the almost three decades of Duvalierist constitutions which preceded it.
13. The Duvalierist Constitutions accommodated, in their various forms, twenty-nine years of authoritarian rule by the Duvalier family, which began in 1957 and ended in 1986, and constituted the last remaining hereditary dictatorship in the Americas since the fall of the Somozas in 1979.
B. THE DUVALIER CONSTITUTIONS
a. The Power of the Executive under the Duvalier Constitutions
14. François Duvalier, or "Papa Doc" as he was known, came to power as the result of having "won" an election on September 22, 1957;4 he was installed as President on October 22, 1957 and remained in power until his death in April 1971. Jean-Claude, François Duvalier's then nineteen-year old son, who came to be known as "Baby Doc", was named by his father as successor, and due to the symbolism the family attached to the number 22, Jean-Claude assumed power officially on April 22, 1971, and remained in power until his departure from Haiti on February 7, 1986.
15. The first Constitution promulgated by the Duvalier dynasty dates from December 19, 1957. Article 87 of the 1957 Constitution provides that the Presidential term be for a period of six years and that this term begin and end on May 15. Title XV of that Constitution explicitly provides that "The mandate of the current President of the Republic (François Duvalier), elected September 22, 1957 will end on May 15, 1963."
16. Haitian history reveals that previous heads of state had been overthrown when it became apparent, as the end of their constitutional term approached, that they did not intend to relinquish power. François Duvalier did not wait for the end of his six-year term in 1963 to make an unprecedented move.
17. On the occasion of the 1961 legislative elections, ballots were printed in the usual manner. At the top of each one were the words "François Duvalier, Président de la République," but there had been no prior modification that an election for the presidency was being held. (Section II of the 1957 Constitution sets forth the procedure to be followed for presidential elections). It was estimated that only government employees voted, but the government announced that 1,320,748 ballots had been cast. François Duvalier's announcement that he had been elected to another six-year term came as a complete surprise.
18. In 1964 François Duvalier devised a means of dispensing once and for all with elections. Claiming that he was responding to popular demand, he encouraged the legislature to adopt a new constitution, which it did on May 25, 1964, declaring him to be "President-for-Life". (Section II of the 1964 Constitution still provided for presidential elections, presumably to be held after the death of François Duvalier, but did not set forth the detailed procedures that existed in the 1957 Constitution).
19. The Haitian title "President-for-Life" did not originate with François Duvalier. It was first introduced in the 1807 Constitution which made Henri Christophe Haiti's first President-for-Life.5 The institution of a presidency-for-life appeared for the last time in the Constitution of 1846. After this no chief executive attempted to rule as president-for-life until Article 196 of the 1964 Constitution was promulgated, stating:
The legislative chamber constituted by the elections of April 30, 1961 shall exercise the legislative power until the second Monday of April 1967, the date of expiration of the term of office of the deputies now in office.
In these circumstances, Dr. François Duvalier, supreme chief of the Haitian nation, having developed, for the first time since 1804, a national spirit through a radical change in the political, economic, social, cultural and religious situation in Haiti, is elected president-for-life in order to ensure the accomplishments and permanence of the Duvalier Revolution under the standard of national unity.
20. The 1964 Constitution declares François Duvalier "President-for-Life", "the unquestioned leader of the Revolution", "the Apostle of National Unity", the "Worthy heir of the Founders of the Haitian nation" and the "Restorer of the Fatherland".6
21. Upon the death of François Duvalier in April 1971, his title of President-for-Life devolved upon his nineteen-year old son Jean-Claude. This succession was legalized by the promulgation of the 1970 and 1971 amendments to the 1964 Constitution (especially Articles 91 and 100) which lowered the minimum-age requirements for the presidency from 40 to 18 years of age and empowered François Duvalier to designate his own successor. Pursuant to Article 104, Jean-Claude's term was also destined to be for life.7 Article 104 states:
The successor designate shall hold the office of the president of the State under the authority of Article 99 of the constitution instituting, in accordance with the will of the sovereign people, the office of president for life, and pursuant to the provisions of the said Article 99.
Analogous provisions were included in the 1983 Constitution, which named Jean-Claude Duvalier President-for-Life and gave him the right to designate his successor, who, in turn, was to become President-for-Life after "ratification" by the people. Article 107 provides:
The President-for-Life of the Republic, citizen jean-Claude DUVALIER, is empowered to designate as his successor any citizen who fulfills the conditions established in Article 102 of the present Constitution.
This designation will be made by proclamation of the President-for-Life, who by order (arrêté) will convoke general meetings of the people to vote for the ratification of his choice of the designated successor.
22. The requisites for being declared the designated successor were set forth in Article 102, which states
To be elected (sic) President of the Republic, it shall be necessary:
1. To be a native-born Haitian and never to have renounced Haitian nationality;
2. To have attained 18 years of age;
3. To enjoy civil and political rights;
4. To be domiciled in Haiti;
5. To have been discharged of any liability if the candidate has been handling public funds.
23. In summary, constitutions promulgated by both François and Jean-Claude Duvalier institutionalized hereditary rule in Haiti. Political power was exclusively in the hands of the President-for Life and the Constitution served to legitimize the tight control the President exercised over the Executive branch, the Legislature, the Judiciary, the Armed Forces, and virtually every other institution in Haiti.
b. The Political Organization of the Duvalier State
24. The 1983 (amended) constitution declared Haiti to be an "indivisible, sovereign, independent democratic and social republic."..8 Articles 58, 59 and 60 of the Constitution provided that sovereignty rests with the people and that the people delegate the exercise of that sovereignty to the executive, legislative and judicial powers, each of which is independent of the other two branches.
The Executive Branch
25. The 1985 amendments to the 1983 Constitution provided that the executive power be exercised by two organs: by the President of the Republic and by the Government. The Government is subordinated to the Chief of State, who is the President, and who exercises "supreme authority."9
26. Among the functions of the Chief of State, the head of government is vested with the responsibility of "directing national policy in accordance with the expressed will of the people".10
27. The President's control over the Executive branch was established by Article 113 of the 1983 (amended) Constitution, which provided:
The President of the Republic names the Prime Minister, the Ministers and the Secretaries of State. He receives the individual or collective resignations of members of the government that may be created by order for entire governmental bodies or individually. He convokes and presides over the Cabinet whose manner of operation is determined by law. He names and dismisses the civil and military functionaries of the state according to the conditions and manner provided for by the general statute of public functions and other laws.11
28. "Secretaries of State" and other cabinet members, however influential and powerful they might appear, were subject to period re-shuffling. This re-shuffling was yet another means by which the Duvaliers assured that no one would gain sufficient power to destabilize the status quo, and it was a means by which the class which supported the President was appeased. There were at least ten cabinet overhauls since the 1979 IACHR Report on the Situation of Human Rights in Haiti was written until the fall of Jean-Claude Duvalier - in November 1979, April 1980, February 1982, May 1982, July 1982, September 1982, January 1983, November 1984, September 1985, November 1985 and December 1985.12
29. Article 116 of the 1983 (amended) Constitution gave President-for-Life Duvalier the sole power to determine when "the institutions of the Republic and the regular functioning of public powers enshrined in the Constitution and the laws are seriously threatened" at which time he was authorized to take all exceptional measures dictated by the circumstances "to guarantee the continuance of the nation, the security of the State, the public peace, etc." There were no checks on this exercise of absolute power, no review mechanism according to the Courts or the legislature, and no standards or guidelines for determining what is a threat to the State or limits on the measures the President might take. Article 116 basically rendered Article 119, on the Declaration of a state of siege, irrelevant, since, pursuant to Article 119, the Legislative Chamber was called upon to approve the declaration of the state of siege. Article 116, however, empowered the President alone to take whatever measures he determined necessary to maintain himself in power.
The Legislative Branch
30. The legislative power was exercised by a single body called the Chambre Législative (Legislative Chamber). This unicameral legislature had 59 deputies who were elected for six-year terms.13 Article 68 provided that to be elected a deputy one must own property in the area which one seeks to represent or exercise a profession or run a business. Powers granted to the legislature included: to make laws on its own initiative or the initiative of the Executive; to monitor respect for the Constitution and the laws; and to annually vote the national budget.
31. An additional set of powers were granted to the members of the legislative chamber when they met as a National Assembly.14 These powers were: to give prior approval to the President's decisions to declare war or to negotiate peace; to revise the Constitution in whole or in part or to vote a new Constitution; to sanction treaties, conventions, international agreements; and, to sit as the High Court of Justice pursuant to the conditions set forth in the present Constitution.
32. Meetings of the legislative Chamber and of the National Assembly were public unless a minimum of five members requested that the meeting be closed to the public.15 Members of the Legislative chamber were constitutionally entitled to immunity from the date on which they took the oath of office until the expiration of their mandate.15
33. In theory, the Legislative Chamber was to initiate legislation to be sent to the Chief Executive for approval and promulgation. In practice, however, all legislative initiative was concentrated in the Presidency. Under the Duvaliers, the Legislative Chamber never proposed legislation, it only ratified Presidential initiatives and decrees.
34. Legislative elections were held under the Presidency of Jean-Claude Duvalier but opposition parties were outlawed and independent candidates barred from the country, arrested and harassed into withdrawing from the race prior to elections.16 As a result, all those who "won" elections and served as deputies in the Legislature had links to the Executive. Consequently, the Legislature served only to rubber-stamp approval to laws the President chose to enact.
35. The Legislature convened annually on the second Monday in April and the session lasted three months. If necessary, the session was extended one or two months by the Executive or by the Legislative branch. The President might adjourn the Legislature for a period not more than one month or for less than fifteen days and there could not be more than two adjournments in a single session.
36. In addition, the Constitution empowered the President to dissolve the Legislative chamber in cases of "serious conflict between the Legislative Power and the Government".17 The decree dissolving the Legislature shall, at the same time, provide for the holding of new elections. During the absence of a Legislature, resulting from the decree of dissolution, the President was empowered to provide for the needs of the public services.
37. Adoption of the 1983 Constitution resulted in the dissolution of the Legislature18 and paved the way for elections of handpicked candidates on February 12, 1984. Similarly the June 6, 1985 amendments to the 1983 Constitution, were to dissolve the then existing legislature in 1986 to pave the way for a new Legislature to be put in place as a result of the elections scheduled for 1987.19 Periodic removal of legislators, despite their ostensible six-year terms, was yet an additional means by which the Duvaliers assured their unchecked control over the Haitian State.
38. During the nine months of the year when the Legislature was not in session, the President was granted "full powers" (Pleins Pouvoirs) under Article 216 of the 1983 Constitution which enabled the President to govern by decree for a period of eight months, during which time, as the IACHR stated in its Annual Report (1981-1982), "the people are deprived of constitutional guarantees and the most elemental human rights". Article 216 provided:
The Chief of the Executive branch, the Chief of State, during the interval between legislative sessions, is vested with full powers to make decrees having the force of law in order to ensure the safety and integrity of the national territory and the sovereignty of the State, the consolidation of order and peace, the maintenance of the economic and financial stability of the nation, the increase in the well-being of the rural and urban populations and the defense of the general interests of the Republic.
39. Previously, this power had been conferred on the President by Legislative Decree passed at the end of each annual legislative session. These decrees effectively suspended the individual rights granted in Article 17, 18, 20, 21, 31, 48, 11, 122(2) and 125(2) of the 1964 Constitution (as amended in 1971). In effect, as noted by the Commission in its Annual Report (1983-1984), by promulgating Article 216 in the 1983 Constitution, Haiti institutionalized a "virtual state of emergency in which citizens have no other guarantees than those which the Executive grants them".
The Judicial Branch
40. The judicial power was exercised by a high court called the Cour de Cassation, the Court of Appeal, lower courts (Tribunaux de première instance) and justice of the peace courts (Tribunaux de Paix).20 The Constitution, in Article 147, et seq., contemplated the creation of a High Court of Justice for treason, which was in fact the Legislature, sitting as the National Assembly, acting as a High Court of Justice, empowered to impeach the President for treason or any crime committed in the discharge of his functions.
41. Theoretically, the President could not direct the decisions of the courts, but his influence was very great since he personally appointed the presidents, vice presidents and judges of all the courts in the country.21 In fact, however, the Judicial branch was not independent of the Executive branch, since Article 136 of the 1983 Constitution named the President "guarantor of the independence of the judicial power".
42. The judges of the Cour de Cassation and the Courts of Appeal were appointed for a term of ten years, and those of the civil courts, for seven years.22 The term of office began when the judge took his oath and, once appointed, he was not subject to removal by the Executive branch for any cause whatsoever.23
43. Pursuant to Article 133 of the 1983 (amended) Constitution special courts could be created by law to deal with specific questions. A presidential decree dated November 22, 1984 created a section of the Civil Court at Port-au-Prince to be known as the "Court of State Security" (Tribunal de Sûreté de l'Etat) with jurisdiction over the entire national territory. It was to have "competence over all crimes and offenses against the internal and external security of the State and over violations which by circumstances of purpose or of motives are considered of a political nature". The broadly defined jurisdiction of this tribunal, however, was rarely invoked.
c. Rights and Guarantees under the Duvalier Constitution (1983)
44. On the surface, the Haitian Constitution appeared to establish a democratic republic with the necessary checks and balances provided by a separation of governmental powers to prevent abuse of power. Upon closer examination, however, the Constitution set up a highly personalized, authoritarian system with absolute powers vested in the Chief Executive.
45. The 1983 Constitution, as amended, consisted of a preamble and fourteen titles containing 225 articles and was approved by the Legislature in less than eight hours. Twenty-nine of these articles were amended by Haiti's unicameral Legislature, by unanimous vote on June 6, 1985, as recommended by President Jean-Claude Duvalier.
46. Of the fourteen titles of the Constitution, Title II deals with individual rights and is termed "The Rights and Duties of Haitians and Aliens". The 1983 Haitian Constitution declared all Haitians to be equal before the law24 but certain advantages were conferred on Haitiens d'origine. A Haitian "of origin" was defined as a person born of at least one Haitian parent; born in Haiti or abroad, or a person born of foreign parents, in Haiti, provided that the person was of the black race.25 One had to be a Haitian of origin, to be President or deputy in the Legislative Chamber. The Prime Minister need not be a Haitian of origin. Ministers must, however, be Haitian citizens, although not all were.26
47. The Constitution set forth civil and political rights,27 individual rights and guarantees,26 and duties of citizens.28 Individual liberties were guaranteed and no one could be pursued, arrested or detained except in cases expressly set forth by law. No one could be arrested or detained except pursuant to a written warrant issued by a competent official.29 No one could be kept under arrest for more than forty-eight hours unless he had been brought before a judge who was called to rule upon the legality thereof, and the judge had confirmed the arrest by a decision setting forth the reasons.30
48. The Constitution of 1964 (as amended in 1971) prohibited torture or other ill treatment of the detainee,31 but no such comparable provision was included in the 1983 Constitution.
49. House searches and seizures of papers were prohibited except by virtue of law and in accordance with legally prescribed procedures.32 The law could not be applied retroactively except in criminal matters and then only to benefit the accused.33 No penalty could be established, except by law, or imposed except in the cases provided for by law (nulla poena sine lege).34 No one could be obliged, in criminal matters, to testify against himself.
50. The right to own property was guaranteed, but expropriation for a public or social purpose could be effected. Compensation was recognized by the State for cases of expropriation for public utility and regulated by law.35
51. The right to work and the right of the worker to a just wage, job training, health protection, social security and the welfare of his family were guaranteed insofar as the country's economic situation allowed. All workers had the right to protect their interests through trade union activities, and to engage in collective bargaining.36
52. The death penalty could not be imposed for any political offense except for the crime of treason, which was defined as taking up arms against the Republic of Haiti, joining avowed enemies of Haiti or giving them aid and comfort.37
53. Everyone was guaranteed the right to express his opinion on any matter and by any means. He expression of thought, whatever form it took, was not subjected to prior censorship except in the case of a declared war. Abuses of the right of freedom of speech were to be defined and punished by law.38 However, a jury was to be used in criminal trials and for political offenses committed through the press or by some other means.39
54. Freedom of religion and belief was guaranteed. The right to profess one's religion or belief was established subject to the provision that the exercise did not disturb public order.40
55. The right to peaceful assembly was guaranteed without prior authorization, in conformity with the law governing the exercise of this right.41
56. Haitians were guaranteed the right to associate and to form political parties, unions and cooperatives. This right was not to be subject to any preventive measure. No one could be compelled to join an association or a political party. The law regulated the conditions for the functioning of these groups and was to promote their formation.
57. Correspondence was inviolable; however, private letters and documents could be intercepted by the authorities for the sole purpose of gathering evidence to be used in court and pursuant to a judicial order.42
d. Mechanisms established to protect individual rights under the Duvalier State
58. The 1983 (amended) Constitution provided that the law could not add to nor derogate from the Constitution: the letter of the Constitution would always prevail.43
59. The President, before taking office, took an oath to "observe and enforce the Constitution, and to respect and ensure that the rights of the Haitian people are respected".44 (This provision was somewhat anachronistic since the President-for-Life did not "take office".) The President was responsible for the enforcement of the Constitution, but he could never suspend or interpret it, nor fail to enforce it.45
60. The Court of Cassation was empowered to rule on the constitutionality of the laws when litigation was referred to it, and such cases which sought judicial review of the constitutionality of laws, were not to be subject to any requirement of deposit, penalty or fee.46 In cases involving political offenses, or the press, the court session was to be public.47
e. Restrictions placed on the enjoyment of human rights
by government practice under the Duvalier regime
61. The vast majority of the individual rights guaranteed by the Duvalier Constitutions were not respected in practice.
62. Government forces, in particular, the Volunteers for National Security (the VSN, more commonly known as the Tonton Macoutes), were routinely identified as the persons responsible for the harassment, persecution, kidnapping (since these "arrests" were conducted without the benefit of judicial warrant), torture and killing of a large class of individuals--aspiring political leaders, journalists, labor organizers, youth organizers, lawyers and human rights activists--who attempted to exercise their human rights. Harassment and extortion practices by the VSN, especially in the rural areas, was a pervasive and continuous interference with the exercise of human rights.
63. The Duvalier administration appeared to have introduced certain predictable cycles in its manner of governing. At the beginning of the cycle the Government promised a "liberalization or democratization" of the regime, permitting the functioning of political parties, the holding of elections, an amnesty for political offenders and greater freedom of the press.48 When the exercise of such rights began to gain momentum and governmental policies and conditions were placed under scrutiny and criticized, major crackdowns involving seeping arrests, torture and killing began to occur. The individuals arrested would be either expelled from the country or subject to long term illegal and often brutal detention, with torture used to extract "confessions". The climate of terror resulting from such a crackdown brought about the abrupt end of the "liberalization or democratization" period until the next cycle was initiated.49
f. The Departure of Duvalier and the Transition to the National Governing Council (CNG)
64. These predictable cycles came to an abrupt end of February 7, 1986, when Jean-Claude Duvalier fled Haitian in the middle of the night on a United States Air Force plane which had been placed at his disposal. The Haitian people, who on February 7, 1986, were celebrating their "liberation" or Second Independence Day, did not scrutinize too closely the 6-man civilian-military junta that was installed to replace Duvalier. Jean-Claude Duvalier had left behind a videocassette tape which was played on television, following his departure, stating that he had personally chosen his successors. Lt. Gen. Henri Namphy, however, head of the 6-man National Governing Council (CNG), in his first speech to the Haitian people on February 7, 1986, announced that he had "seized the reins of power".50 Both versions appear incredible because the composition of the CNG included an important leader of the opposition to Duvalier, the head of the Haitian League for Human Rights, Mr. Gérard Gourgue, who would not have been selected to form part of a new government by either Jean-Claude Duvalier or Lt. Gen. Namphy unless other influences played a role. Consequently, one can only speculate as to why the forces which installed the CNG in power on February 7, 1986 did not place Mr. Gourgue at the head of this new government to demonstrate the importance of civilian control over the military in this transition process.
65. The CNG took power on February 7 1986 and on February 10, 1986, installed its Cabinet. On February 26, 1986, it presented a list of its achievements after 18 days in power. This list sought to portray the CNG as a provisional government which would vindicate the demands of the Haitian people and work to install democracy in Haiti. The CNG stated that in a period of 18 days it had:
1. Freed all political prisoners;
2. Re-established absolute freedom of the press;
3. Dissolved and disarmed the VSN;
4. Set aside the Constitution of 1983 (as amended);
5. Dissolved the Legislature;
6. Seized and nationalized the goods, furnishings and real estate of the ex-President Jean-Claude Duvalier;
7. Re-established the blue and red Haitian flag. (Under the Duvaliers the Haitian flag had been changed to red and black).51
66. In fact it did do most of the things that it claimed to have done, with the exception of disarming the Macoutes.
67. On February 25, 1986, Lt. Gen. Namphy set forth the outlines of the CNG's political program. He announced that a consultative body would be formed, which would elect, by secret ballot the members of a constituent assembly to draft a new Constitution. The CNG would govern by decree and would issue decrees regarding the press, and the organization of political parties. The new Constitution would set forth provisions regarding elections.
68. The Consultative Council, however, did not elect the members of the Constituent Assembly. Elections for 41 of the 61 seats on the Constitutional Assembly were held throughout Haiti on October 19, 1986. The CNG designated the other 20 members directly. The Ministry of Information informed the public that 9.2% of the Haitian electorate participated in the October elections, whereas other sources reported a voter turnout of between 1% and 5%.
69. As mentioned in the Commission's 1986-1987 Annual Report the Constituent Assembly had "originally been viewed with skepticism but as it demonstrated its seriousness and responsiveness to its mandate, it won popular support". Consequently, on March 29, 1987, the Haitian Constitution was submitted to a referendum, and 45.4% of the 2.8 million eligible Haitian voters cast their votes in favor of the new Constitution. The high voter turnout dramatically surpassed the 10% participation predicted.
C. THE HAITIAN CONSTITUTION OF 1987
70. The agenda for a new Haiti is set forth in the legal blueprint known as the Constitution of 1987. According to Le Moniteur, the official government newspaper, 1,271,334 votes were cast on March 29, 1987 which represented 45.4% of the 2.8 million eligible voters. Of these, 1,268,980 voted in favor of the Constitution, a 99.8% approval rate. The Constitution attracted such a significant response from the population because it embodied a repudiation of the Duvaliers and the twenty-nine years of dictatorship.
a. Disqualification of Duvalierists for Public Office
71. It appears that the new Constitution's most popular provision is Article 291 which concerns the disqualification of Duvalierists for public office for a period of ten years. This provision sought to define a clear line of demarcation between the Duvalierist past and the desired non-Duvalierist present. Article 291 states:
For ten (10) years following publication of this Constitution, and without prejudice to any criminal action or civil suit for damages, none of the following may be candidates for any public office:
a) Any person well known for having been by his excess zeal one of the architects of the dictatorship and of its maintenance during the last twenty-nine years;
b) Any accountant of public funds during the years of the dictatorship concerning whom there is presumptive evidence of unjustified gain;
c) Any person denounced by public outcry for having inflicted torture on political prisoners in connection with arrests and investigations or for having committed political assassinations.
b. The Provisional Electoral Council (CEP)
72. A second unusual characteristic of the 1987 Constitution is Article 289 which provides for the establishment of a Provisional Electoral Council. This Provisional Electoral Council became virtually a parallel government to the CNG insofar as it was given control over the electoral process, a function previously within the self-proclaimed mandate of the CNG.
73. Article 289 provides that the CEP be comprised of members representing different social sectors, of which the CNG represents only one of nine parts:
Awaiting the establishment of the Permanent Electoral Council provided for in this Constitution, the National Council of Government shall set up a Provisional Electoral Council of nine (9) members, charged with drawing up and enforcing the Electoral Law to govern the next elections, who shall be designated as follows:
1) One by the Executive Branch, who is not an official;
2) One by the Episcopal Conference;
3) One by the Advisory Council;
4) One by the Supreme Court;
5) One by agencies defending human rights, who may not be a candidate in the elections;
6) One by the Council of the University;
7) One by the Protestant religions;
8) One by the National Council of Cooperatives
74. In addition, the Constitution, in Article 292, empowers the CEP with determining which candidates are Duvalierists and, as such, are to be disqualified as candidates for public office.
c. The Power of the Executive under the 1987 Constitution
75. Under the Duvalier regimes, the Executive, transformed into President-for-Life, had been all-powerful. Consequently, the drafters of the 1987 Constitution sought to prevent such a recurrent abuse of power and vested the powers of the Executive in the President of the Republic, who is the Head of State and the Government, which is headed by a Prime Minister.52
76. The President, under the 1987 Constitution, is to be elected by direct, universal suffrage by an absolute majority of votes. If that majority is not obtained, a runoff is to be held between the two leading contenders.53
77. The presidential term is for a period of five years and this term is to begin and end on February 7 following the date of the elections.54 Presidential elections are to be held on the last Sunday of November in the fifth year of the President's term.55 An individual may serve no more than two terms and the terms may not be consecutive.56 The CNG scheduled elections for November 29, 1987, however, these elections were cancelled.
78. The duties of the Haitian President include the selection of the Primer Minister from among the members of the majority party in Parliament.57 The President's choice must be ratified y the Parliament. The President is empowered to declare war,58 and with the consent of the Senate, he appoints the Commander-in-Chief of the Armed Forces.59 The President is the nominal head of the Armed Fores.60 If the office of the presidency becomes vacant the President of the Supreme Court is invested by the National Assembly, convened by the Prime Minister.61
79. Pursuant to Article 135 of the Constitution, to be elected President of Haiti, a candidate must:
a) Be a Haitian by origin and never have renounced Haitian nationality;
b) Have attained thirty-five (35) years of age by election day;
c) Enjoy civil and political rights and never have been sentenced to punishment involving death, personal restraint or penal servitude or the loss of civil rights for a crime of ordinary law;
d) Be the owner in Haiti of at least one real property and have his habitual residence in the country;
e) Have resided in the country for five (5) consecutive years before the date of the elections;
f) Have been relieved of any liability (avoir reçu décharge) if he has been handling public funds.
80. The Prime Minister is the head of Government and conducts the policy of the nation.62 To be appointed Prime Minister, a candidate must:
1) Be a Haitian by origin and never have renounced Haitian nationality;
2) Have attained thirty (30) years of age;
3) Enjoy civil and political rights and never have been sentenced to punishment involving death, personal restraint or penal servitude or the loss of civil rights;
4) Own real property in Haiti and practice a profession there;
5) Have resided in the country for five (5) consecutive years;
6) Have been relieved of any liability (avoir reçu décharge) if he has been handling public funds.
81. The Prime Minister chooses the members of the Cabinet with the approval of the President, and a vote of confidence of both Houses of Parliament.63 In concert with the President, the Prime Minister is responsible for national defense,64 and enforcement of the laws.65
82. In summary, whereas the Duvalier constitutions institutionalized hereditary rule, the 1987 Constitution attempts to diminish the power of the Executive by creating the positions of President and Prime Minister, prevents consecutive re-election and institutionalizes a democratic form of government by providing for an effective separation of powers.
D. THE POLITICAL ORGANIZATION OF THE STATE UNDER THE 1987 CONSTITUTION
83. The 1987 Constitution declared Haiti to be "an indivisible, sovereign, independent, cooperatist, free, democratic and social republic.66 This provision adds the notion of "cooperatist" to the formulation of the 1983 (amended) Constitution. As in the earlier Constitution, the structure of the political organization is that of the traditional democratic state. Articles 58, 59 and 60 provide that sovereignty is vested in all citizens and that all citizens delegate the exercise of that sovereignty to the three branches of government: the executive, legislative and judicial. Each branch is independent of the other two, and none may go beyond the bounds set for them by the Constitution and by the law.
The Executive Branch
84. The 1987 Constitution (like the 1985 amendments to the 1983 Constitution), provides that the executive power is to be exercised by the President of the Republic and by the Government.
85. Under the Duvalier Constitution, the President named the Prime Minister, but Jean-Claude Duvalier, as President, was also the Head of the Government. The Prime Minister was a figure without power. Under the 1987 Constitution the Prime Minister, not the President, is mandated by the Constitution to conduct the policy of the nation.67
86. Cabinet members, pursuant to the 1987 Constitution, are chosen by the Prime Minister with the approval of the President.68 During the two-year period of the interim military government the CNG shuffled the cabinet four times.
87. Checks are placed on the abuse of power by the Executive branch by the High Court of Justice, which has the authority to try the following persons, including the President and the Prime Minister, for certain offenses.69
a) The President of the Republic for the crime of high treason or any other crime or offense committed in the discharge of his duties;
b) The Prime Minister, the Ministers and the Secretaries of State for crimes of high treason and embezzlement or abuse of power or any other crimes or offenses committed in the discharge of their duties;
c) Members of the Permanent Electoral Council and the Superior Court of Auditors and the Court of Administrative Disputes for serious offenses committed in the discharge of their duties;
d) Supreme Court justices and officers of the Public Prosecutor's Office before the Court of Cassation;
e) The Protector of Citizens (Protecteur du citoyen).
88. In Addition, a Conciliation was established under the 1987 Constitution which is to settle disputes between the Executive Branch and the Legislative and the two Houses of Legislature.70 The precise functions of this Commission were to be regulated by the law.71
The Legislative Branch
89. The Duvalier Constitution provided for a unicameral legislature which was dominated and manipulated by the Executive. The 1987 Constitution provided for a bicameral legislature comprising a House of Deputies and a Senate.72
90. Pursuant to the 1987 Constitution to be elected a member of the House of Deputies,73 a person must:
1) Be a Haitian by origin and have never renounced his nationality;
2) Have attained twenty-five (25) years of age;
3) Enjoy civil and political rights and never have been sentenced to death, personal restraint or penal servitude or the loss of civil rights for any crime of ordinary law;
4) Have resided at least two (2) consecutive years prior to the date of the elections in the electoral district he is to represent;
5) Own at least one real property in the district and practice a profession or trade;
6) Have been relieved, if need be, of any liability (avoir reçu décharge) as a manager of public funds.
A deputy is elected for a 4-year term and may be reelected.
91. Pursuant to the 1987 Constitution, to be elected a member of the Senate74 a person must:
1) Be a Haitian by origin and never have renounced his nationality;
2) Have attained thirty (30) years of age;
3) Enjoy civil and political rights and never have been sentenced to death, personal restraint or penal servitude or the loss of civil rights for a crime of ordinary law;
4) Have resided in the Department he will represent, at least four (4) consecutive years prior to the date of the elections;
5) Own at least one (1) real property in the Department and practice a profession or trade there;
6) Have been relieved, if need be, of any liability (avoir reçu décharge) as a manager of public funds.
92. A senator is elected for a 6-year term and may be reelected. In addition, pursuant to Article 291 of the 1987 Constitution, the most important prerequisite is that a candidate for the Senate or House of Deputies not has had ties to the Duvalier regimes, as such ties would disqualify him for public office.
93. The 1987 Constitution provides that the House of Deputies and the Senate, meeting together, comprise the National Assembly. The legislative session commences with the meeting of the National Assembly. The first legislative session of the House of Deputies runs from the second Monday of January to the second Monday of May and the second session runs from the second Monday of June to the second Monday of September.75 The Senate is permanently in session.76 In no case may the House of Deputies or the Senate be dissolved or adjourned.77 Pursuant to the Duvalierist Constitution the President was constitutionally empowered to dissolve the legislature in cases of conflict between the Executive and the Legislative branches. The 1987 Constitution provides for a Conciliation Commission to settle disputes between these two branches of Government.
94. The functions of the Legislature reflect those of the previous Constitution as regards the power to make laws.78 As in the previous Constitution laws can be initiated by either House of the legislature or by the Executive.79 Similarly, additional powers are granted to the Legislature when it meets as a National Assembly, such as to receive the constitutional oath of the President, to ratify the decision to declare war, to approve or reject treaties and to amend the Constitution.80
95. Meetings of the National Assembly are public unless a minimum of five members request that they be held in closed session.81 Members of the Legislature are inviolable (immune from lawsuits) from the date on which they take their oath of office until the expiration of their mandate.82
96. As a result of the elections of January 17, 1988, according to ex-President-for-Life Jean Claude Duvalier, 60% of the persons elected to serve in the Haitian legislature during the Manigat government were Duvalierists.83 In the opinion of many Haitians with whom the Commission spoke during its August 1988 visit, the January 1988 elections were unconstitutional, in light of the fact the Article 291 bars Duvalierists from standing for public office for a period of ten years.
The Judicial Branch
97. The Judicial power under the 1987 Constitution is vested in the high court known as the Court de Cassation, the Courts of Appeal, Courts of First Instance, Justice of the Peace Courts and Special Courts.84 In addition, as mentioned above, the Constitution contemplates a High Court of Justice, which is the Senate sitting as a tribunal to consider political cases such as the impeachment of the President for treason.
98. Judges of the Cour de Cassation and the Courts of Appeal are appointed for a term of ten years. Judges of the Courts of First Instance are appointed for seven-year terms.85 Judges of the Cour de Cassation are appointed by the President, from a list of at least three per seat, submitted by the Senate.86 The judges of the Cour de Cassation, the Courts of Appeal and the Courts of First Instance may not be removed from office.87
99. As regards political offenses, the Constitution does provide for the creation of special courts, the jurisdiction of which, however, must be determined by law.88 The Court of State Security (Tribunal de Sûreté de l'Etat), created by the Duvalier regime, has been abolished.89 The Constitution further provides that sentences may not be delivered in closed sessions in cases involving political offenses or the press.90
a. Rights and Guarantees under the 1987 Constitution
100. The 1987 Constitution consists of a Preamble and fifteen titles containing 298 articles. Of the fifteen titles of the Constitution, Title III deals with individual rights and is entitled "Basic Rights and Duties of the Citizen" and Title IV deals with "Aliens".
101. The 1987 Constitution declares all Haitians to be equal before the law91 but as in the Duvalier constitutions, certain benefits are conferred on Haitians d'origine. A Haitian "of origin" is defined as a person born of at least one Haitian parent, who (i.e., the parent) was born Haitian, and who never renounced Haitian nationality. The racial provision in the Duvalier constitutions, granting a black person, born in Haiti, but of foreign parents, Haitien d'origine status, has not been incorporated into de 1987 Constitution.
102. Pursuant to the 1987 Constitution, the President, the Prime minister, the Deputies and the Senators must all be Haitians "of origin".
103. The 1987 Constitution provides that any Haitian who has adopted a foreign nationality during the twenty-nine years of the Duvalier regime, may recuperate her or his nationality, if, within two years of the publication of the Constitution, s/he makes a declaration to the Minister of Justice, for that purpose.92 This provision however, does not appear to entitle the individual making this declaration to the recovery of his Haitien d'origine status.
104. The 1987 Constitution sets forth the basic rights of citizens as well as their duties.
105. The age of majority is defined as 18 years93 at which the exercise of political and civil rights commences.94 The death penalty is abolished for all crimes.95
106. Individual liberty is guaranteed and no one may be prosecuted, arrested or detained unless pursuant to law.96 No one may be detained without a warrant unless caught in the act of committing a crime,97 and no arrest warrant may be carried out between 6 p.m. and 6 a.m.98 No one may be kept under arrest for more than 48 hours unless he has been brought before a judge who has been called to rule upon the legality thereof, and the judge has confirmed the arrest by a well-founded decision.99 Torture, or any form of coercion is prohibited by the 1987 Constitution100 and the detainee may only be interrogated in the presence of his attorney or a witness of choice.101
107. Violators of the constitutional provisions on individual liberty are subject to law suits and the government officials responsible for such acts are directly liable under civil and administrative criminal laws.102
108. Freedom of expression is guaranteed and all offenses involving the press and abuses of the right of expression come under the criminal code.103
109. Freedom of association as well as the freedom not to join an association are guaranteed. In addition, the police must be informed, in advance, of public assemblies or demonstrations.104
110. The right to education is guaranteed and primary school is compulsory [under penalties to be prescribed by law.105 In a nation with, at least, a 70% rate of illiteracy, one can only surmise what sort of penalties will be imposed. Higher education, i.e. post-primary school, is "open to all", it is not compulsory.106 It is not specified in the Constitution whether primary school is considered to comprise six or twelve years.
111. The right to work is guaranteed. The State guarantees workers equal working conditions, regardless of sex, and workers are entitled to a fair wage, to rest, to a paid annual vacation and to an annual bonus.107 The right to strike is recognized and may be limited by law.108
112. Private property is recognized and protected. Although nationalization and confiscation are prohibited, land reform is contemplated as an exception to this blanket prohibition.109 The landowner is also constitutionally obliged to protect the land against erosion, and failure to do so would make him subject to criminal penalties.110 The process of erosion of the Haitian arable lands has systematically destroyed the country's agricultural capacity and this constitutional provision attempts to deal with this deteriorating problem.
113. Personal security is constitutionally guaranteed and no Haitian may be deported or expelled "for any reason". In addition, no one may be deprived of his legal capacity or his nationality for political reasons.111 Unlike the Duvalier era, Haitians no longer require a visa to leave or return to haiti.112 No search and seizure may be conducted except pursuant to law113 and correspondence and other forms of communication are inviolable. Communication may only be limited pursuant to judicial order.114
114. Persons in detention are to be held separately from persons serving sentence115 and prisons must be run "in accordance with standards reflecting respect for human dignity according to the law on the subject".116
115. In addition, in recognition of the fact that both Creole and French are the official languages of Haiti,117 all laws, decrees, treaties, etc., except "information concerning national security" must be published by the State in both languages.118
b. Mechanisms established to protect individual rights under the 1987 Constitution
116. Approximately one million Haitians fled from Haiti during the Duvalier regimes.119 Many fled involuntarily to escape political repression whereas others fled voluntarily to seek a better life elsewhere. The 1987 Constitution takes into consideration the situation of these voluntary and involuntary expatriates in its various articles.
117. The Constitution provides that any Haitian who was the victim of the confiscation of his property during the Duvalier period may "recover his property before a court of competent jurisdiction.120 In addition, death sentences, detention, imprisonment or the loss of civil rights during this period "shall constitute no impediment to the exercise of civil and political rights."121
118. In addition, all laws and decrees "arbitrarily limiting the basic rights and liberties of citizens," are repealed,122 in particular:
a) The decree law of September 5, 11935 on superstitious beliefs;
b) The law of August 2, 1977 establishing the Court of State Security (Tribunal de la Sûreté de l'Etat);
c) The law of July 28, 1975 placing the lands of the Artibonite Valley in a special status; and
d) The law of April 29, 1969 condemning all imported doctrines.
119. Further, all international treaties, once ratified, become part of the legislation of Haiti and abrogate any laws in conflict with them.123 This provision is extremely important for the purposes of this Report, in light of the fact that Haiti has ratified the American Convention on Human Rights, and pursuant to this Constitutional provision, the Convention is incorporated into Haiti's domestic legislation.
120. The 1987 Constitution creates the position of Ombudsman, or the "Office of Citizen Protection," which is established to protect all individuals against any form of abuse by the Government.124 The office is to be directed by a person chosen by consensus among the President, the President of the Senate and the President of the House of Deputies, for a seven year term.125 His intervention, on behalf of any complainant (it need not be a citizen of Haiti) is without charge.126
121. Other constitutional provisions designed to protect individual rights include the limitations and safeguards imposed on the Government as regards the declaration of a state of siege, and the separation of the Army and the Police.
122. A state of siege may only be declared in the event of civil war or foreign invasion.127 Consequently, it may not be declared to silence dissent or in the case of riots or demonstrations. The declaration of the state of siege must be made by an act of the President, countersigned by the Prime Minister, and "by all of the Ministers", and contain an immediate convocation of the National Assembly to decide on the measure.128 The state of siege is lifted if it is not renewed every fifteen days by a vote of the National Assembly, 129 and the National Assembly,129 and the National Assembly is required to remain in session for the entire duration of the state of siege.130
123. As regards the Armed Forces and the Police, the Constitution does not contemplate any other armed corps. N fact, it explicitly states that "No other armed corps may exist in the national territory,"131 which refers to the dissolution of the notorious Volunteers of national Security (Volontaires de Securité Nationale) popularly known as the "Tontons Macoutes".
124. The duties of the Armed Forces are to defend the State from external aggression, but they may b called upon to assist in disaster relief, in development work, or, "Upon the well founded request of the Executive, they may lend assistance to the police when the latter are unable to handle a situation".132
125. Military service is compulsory for all Haitians who have attained the age of eighteen.133 Haitians have the right to bear arms for use in self-defense, but only following expressed authorization from the Chief of Police,134 and possession of a firearm must be reported to the police.135
126. The Police Force operates under the Ministry of Justice136 and it is established "to investigate violations, offenses and crimes committed, in order to discover and arrest the perpetrators of the".137
127. In addition, the 1987 Constitution establishes that members of the Armed forces and the Police are subject to "civil and penal liability in the manner and under the conditions stipulated by the Constitution and by law".138
E. HAITI'S INTERNATIONAL OBLIGATIONS IN THE FIELD OF HUMAN RIGHTS
128. Haiti is a member of the United Nations and the Organization of American States, the Charters of which set forth respect for human rights.
129. On September 27, 1977, Haiti deposited its instrument of accession to the American Convention on Human Rights (Pact of San Jose). The American Convention entered into force on July 18, 1978, and as a result Haiti is legally obligated to observe the rights and freedoms set forth in that Convention, and to guarantee to all persons within its jurisdiction the free and full exercise of their rights, without discrimination for reasons of race, color, sex, language, religion, political or other opinion, national origin or social position, economic situation, birth or any other social condition.
130. Article 276-2 of the 1987 Haitian Constitution (supra) provides that ratified treaties become part of the domestic legislation of Haiti. Lt. Gen. Namphy in his first speech upon assuming power stated that all international treaties, agreements and accords would continue to be respected.
131. The American Convention on Human Rights (1969) is the only general human rights instrument to which Haiti is a party.140 Haiti is a party, however, to the following issue-specific international human rights instruments concerning the prevention of discrimination: the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the International Convention on the Suppression and Punishment of the Crime of Apartheid (1978), the ILO Convention (No. 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (1951), and the ILO Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation (1958).
132. Haiti is also a party to specific human rights conventions which concern the following issues: the Convention on the Prevention and Punishment of the Crime of Genocide (1948), the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956), the Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of others (1949), the ILO Convention (No. 29) concerning Forced Labor (1930), the ILO Convention (No. 105) concerning the Abolition of Forced Labor (1957), the OAS Convention on Asylum (1928), the OAS Convention on Political Asylum (1933), the OAS Convention on Diplomatic Asylum (1945) and the OAS Convention on Territorial Asylum (1954).
133. Haiti is a party to specific human rights instruments which relate to the protection of particular groups: ILO Convention (No. 87) concerning Freedom of Association and Protection of the Right to Organize (1948), ILO Convention (No. 98) concerning the Application of the Principles of the Right to Organize and Bargain Collectively (1949), the UN Convention on the Political Rights of Women (1952), the Inter-American Convention on the Granting of Political Rights to Women (1948) and the four Geneva Conventions (1949, 1950).
During the two-year transition period of the CNG, headed by Lt. Gen. Namphy, the most significant step towards democracy was taken on March 29, 1987, as the Haitian people expressed their sovereign will and overwhelmingly approved the 1987 Constitution. This expression of the national sovereignty is the standard against which any Haitian government's legitimacy will have to be measured. A military coup d'etat and the summary deportation of the head of state cannot be legitimized by the destruction of the nation's fundamental charter or by unsupportable claims, made under the threat of the use of force, that one is acting in the name of democracy and human rights.
It should be noted that the 1987 Constitution deprived the military of control over elections and subordinated the military to civilian rule, as is the case in all democratic constitutions in the world. Logically, a military government undermines the institutionalization of a democratic state, and having deported the President, suppressed the legislature and abrogated the Constitution, it can only claim to be acting in the name of "democracy", in an Orwellian reversal of meaning, where words signify the opposite of their accepted connotations.
The information set forth in this chapter leads to the inescapable conclusion that a system of representative democracy must be established in Haiti and the rule of law must be restored for fundamental human rights to be guaranteed.
1. "Explain Power Seizure" FBIS 21 June 1988, Le Nouvelliste, 21 June 1988.
2. See Chapter II (infra).
3. Lt. Gen. Namphy Address on New 'Democratic Charter' FBIS 8 July 1988. Also, Le Nouvelliste 11 July 1988.
4. On August 2, 1957 the Ministry of the Interior and National Defense announced that general elections would take place on September 22, 1957. No registration was required. Ballots were available, but voters could bring their own. Port-au-Prince voted for Daniel Fignolé. Violence erupted as the election results were made known and martial law was declared until President-elect Duvalier assumed office. See, Bernard Diederich and Al Burt: Papa Doc and the Tonton Macoutes. (1968) Cf. "Papa Doc … was basically a revolutionary despite his rise to power through the electoral process", Ernest H. Preeg, United States Ambassador to Haiti 1981-1984 in Binnedijk: Authoritarian Regimes in Transition, Foreign Service Institute, U.S. Department of State (June 1987).
5. Toussaint Louverture, father of the first Constitution of 1801, when Haiti was still a French colony, albeit self-governing, was declared Governor General for life, with subsequent Governor Generals to be named to 5 year terms. Jean Jacques Dessalines in the first post-liberation Constitution (of May 20, 1805) changed the name of the French colony, Saint-Domingue, to the Empire of Haiti, and declared himself President for a four-year term, but with the new constitution of February 17, 1807 was elevated to the presidency-for-life, and with the Constitution of May 28, 1811, he blame a monarch, King Henry I of the North of Haiti. Alexandre Pétion who had established a republic in the south of Haiti adopted the idea of a presidency-for-life from Christophe's 1807 Constitution, and Pétion became President-for-Life pursuant to the Constitution promulgated June 2, 1816. (Simon Bolivar reportedly was so impressed with the institutionalization of a presidency-for-life that he introduced it into the 1825 Constitution of Bolivia, making reference to the Haitian precedent). The institution of presidency-for-life was abolished by 1843 when an elected 4-year period was introduced as the presidential term, but it was again briefly reintroduced in the 1846 Constitution.
6. Article 127 of the 1964 Constitution defines de nature of the "Duvalier Revolution" to be the following accomplishments of François Duvalier: "1. Through a suitable reorganization of the armed forces, established peace and order, which had been dangerously disturbed after the tragic events of 1957; 2. Made possible and affected the reconciliation of political factions who were bitterly opposed to each other at the time of the fall of the 1950 regime; 3. laid the bases for national prosperity by promoting agriculture and the gradual industrialization of the country, which have been facilitated the establishment of major installations and infrastructure works; 4. established the economic and financial stability of the state despite the disastrous actions of combined forces from within and without, aggravated by the cyclical disasters resulting from the violence of nature; 5. Organized effective protection of the working masses by harmonizing the interests and aspirations of capital and the workers; 6. Advocated, and set up, a rational organization of the rural section and, by a new code, regulated rural life so as to establish justice in that environment, thus opening up the way for the permanent rehabilitation of the peasants; 7. Launched and carried out a literacy campaign for the masses and thus fulfilled the aspirations of the little people and the humble for more knowledge and well-being; 8. Established organizations for the protection of women, motherhood, children, and the family; 9. Established the National University of Haiti and thus satisfied the legitimate desire of young people for information and the conquest of the future through knowledge; 10. Established respect for the rights of the people and the prerogatives of national sovereignty; strengthened the prestige and dignity of the Haitian community; and protected the sacred heritage of our ancestors from any attack; 11. Embraced, through his domestic policy, all the social classes in his care and, through an effective, able foreign policy, defended the integrity of Haitian territory and the national independence; 12. Concentrated, in short, all his efforts on the establishment of a strong nation, capable of fulfilling its destiny in liberty and with pride for the happiness of all its sons and for world peace.
Because he has thus become the unquestioned leader of the revolution, the apostle of national unity, the worthy heir of the founders of the Haitian nation, the restorer of the fatherland, and because he has been unconditionally acclaimed, by the great majority of the people, chief of the national community without limitations to length of term;
Dr. François Duvalier, having been elected president of the republic, shall perform his high duties for life, pursuant to the provisions of Article 92 of this constitution"
7. Special provision Article 197 concerning the Duvalier Revolution in the 1964 Constitution is incorporated into the definition of the Executive branch with the 1971 amendments (See, Article 99); the previous "Section II" provisions relating to presidential elections are completely eliminated in the 1971 amendments.
8. Article 1 of the 1983 amended Constitution.
9. Article 101 of the 1983 amended Constitution.
10. Article 110 of the 1983 Constitution.
11. Jean-Claude Duvalier announced on April 22, 1985 that he intended to appoint a Prime Minister and to allow political parties to function in order to encourage political "Liberalization and democratization" in Haiti. Details of the proposals were announced on June 6, 1985, when the Legislative Assembly approved amendments to the Constitution with regard to the selection of a Prime Minister from the majority party elected to the Chambre Legislative, Under the amendments and legislation on political parties passed on June 8, 1985, legislative elections with the participation of the approved parties were to have been scheduled for February 1987.
12. If you include minor cabinet changes - substitutions of one or two ministers at a time - the total number is over 30 changes for this period.
13. Article 65 of the 1983 amended Constitution.
14. Articles 63 and 73 of the 1983 amended Constitution.
15. Article 80 of the 1983 amended Constitution.
16. Article 95 of the 1983 amended Constitution.
17. See Chapter II on Political Rights, infra.
18. Articles 117 and 79 of the 1983 amended Constitution.
19. Article 222 of the 1983 Constitution.
20. Article 222 of the 1983 amended constitution.
21. Article 133 of the 1983 amended Constitution.
22. Article 114 of the 1983 amended Constitution.
23. Article 134 of the 1983 amended Constitution.
24. Article 135 of the 1983 amended Constitution. In fact, however, judges have been removed at the President's whim.
25. Article 22 of the 1983 amended Constitution. Non-discrimination is guaranteed as regards social class, color, race, sex, religion or political opinion (Article 48).
26. This provision is perhaps a historical remnant of the earlier constitution provision by which Haiti granted immediate nationality to any African or Indian who came to reside in Haiti. Haiti, in 1804, following a fierce 12-year war which had originated as a slave revolt, was the second nation to proclaim its independence in the Americas. For that reason it offered freedom to any Black o Indian who chose to flee to Haiti. (See Haitian Constitution of 1816 (Article 44)).
27. Frantz Merceron, for example, is a French, not Haitian, citizen.
28. Articles 20 and 21 of the 1983 amended constitution.
29. Articles 22-51 of the 1983 amended Constitution.
30. Articles 52-57 of the 1983 amended Constitution. Voting is considered not only a right, but a duty under the Haitian Constitution (See, Article 53).
31. Article 24 of the 1983 amended constitution.
32. Article 25 of the 1983 amended Constitution.
33. Article 17 of the 1964 amended Constitution provided in relevant part: "Any unnecessary force or restraint in the apprehension of a person or in keeping him under arrest, any moral pressure or physical brutality is forbidden. All violations (…) shall be considered arbitrary acts against which the injured parties may, without prior authorization, appeal against which the injured parties may, without prior authorization, appeal to the competent courts, prosecuting either the authors or the perpetrators, regardless of their rank or the body to which they belong."
34. Article 27 of the 1983 amended Constitution.
35. Article 29 of the 1983 amended Constitution.
36. Article 30 of the 1983 amended Constitution.
37. Articles 32 and 35 of the 1983 amended Constitution.
38. Articles 37 and 38 of the 1983 amended constitution.
39. Article 39 of the 1983 amended Constitution. The guarantee "Even for political purposes" was deleted from the 1987 Constitution.
40. Article 40 of the 1983 amended Constitution.
41. Article 50 of the 1983 amended constitution.
42. Article 41 of the 1983 amended constitution.
43. Article 42 of the 1983 amended constitution included the right to assembly privately without prior authorization. This article violates Article 4.4 of the American Convention on Human Rights. (See, Chapter on the Right to Life, below).
44. Article 45 of the 1983 amended Constitution. In the 1964 amended Constitution there were no limitations, all correspondence was declared inviolable.
45. Article 51 of the 1983 amended Constitution.
46. Article 104 of the 1983 amended Constitution.
47. Article 111 of the 1983 amended Constitution.
48. Article 139 of the 1983 amended Constitution.
49. Article 141 of the 1983 amended Constitution.
50. Compare government declarations to this effect made in 1978 and again in 1985.
51. Compare the crackdowns of November 1980 and November 1985.
52. Le Nouvelliste, February 7, 1986.
53. Le Nouvelliste, February 26-27, 1986.
54. Article 133 of the 1987 Constitution.
55. Article 134 of the 1987 Constitution.
56. Article 134-1 of the 1987 Constitution.
57. Article 134-2 of the 1987 Constitution.
58. Article 134-3 of the 1987 Constitution.
59. Article 137 of the 1987 Constitution.
60. Article 140 of the 1987 Constitution.
61. Article 141 of the 1987 Constitution.
62. Article 143 of the 1987 Constitution.
63. Article 149 of the 1987 Constitution.
64. Articles 155 and 156 of the 1987 Constitution.
65. Article 158 of the 1987 Constitution.
66. Article 159-1 of the 1987 Constitution.
67. Article 159 of the 1987 Constitution.
68. Article 1 of the 1987 Constitution.
69. Article 156 of the 1987 Constitution.
70. Article 158 of the 1987 Constitution.
71. Article 186 of the 1987 Constitution.
72. Article 206 of the 1987 Constitution.
73. Article 206-1 of the 1987 Constitution.
74. Article 88 of the 1987 Constitution.
75. Article 91 of the 1983 Constitution.
76. Article 96 of the 1983 Constitution.
77. Article 92-2 of the 1987 Constitution.
78. Article 95-1 of the 1987 Constitution.
79. Article 11-8 of the 1987 Constitution.
80. Article 11 of the 1987 Constitution.
81. Article 111-1 of the 1987 Constitution.
82. Article 98-3 of the 1987 Constitution.
83. Article 100 of the 1987 Constitution.
84. Article 114 of the 1987 Constitution.
85. Baby Doc "Je Paye Pour Papa Doc" in Paris Match 12 February 1988. An interview with Jean-Claude Duvalier in France.
86. Article 173 of the 1987 Constitution.
87. Article 174 of the 1987 Constitution.
88. Article 175 of the 1987 Constitution.
89. Article 177 of the 1987 Constitution.
90. Article 173 of the 1987 Constitution.
91. Article 173 of the 1987 Constitution.
92. Article 180-1 of the 1987 Constitution.
93. Articles 18 of the 1987 Constitution.
94. Article 286 of the 1987 Constitution.
95. Article 16-2 of the 1987 Constitution.
96. Article 17 of the 1987 Constitution.
97. Article 20 of the 1987 Constitution.
98. Article 24-1 of the 1987 Constitution.
99. Article 24-2 of the 1987 Constitution.
100. Article 24-3(d) of the 1987 Constitution.
101. Article 26 of the 1987 Constitution.
102. Article 25 of the 1987 Constitution.
103. Article 25-1 of the 1987 Constitution.
104. Article 270 and 27-1 of the 1987 Constitution.
105. Articles 28-3 of the 1987 Constitution.
106. Article 31-2 of the 1987 Constitution.
107. Article 32-3 of the 1987 Constitution.
108. Article 32-6 of the 1987 Constitution.
109. Article 35-1 of the 1987 Constitution.
110. Article 35-5 of the 1987 Constitution.
111. Article 36-2 of the 1987 Constitution.
112. Article 36-4 of the 1987 Constitution.
113. Article 41 of the 1987 Constitution. Aliens, however, may be deported. (Art. 56).
114. Article 41-1 of the 1987 Constitution.
115. Article 43 of the 1987 Constitution.
116. Article 49 of the 1987 Constitution.
117. Article 44 of the 1987 Constitution.
118. Article 44-1 of the 1987 Constitution.
119. Article 5 of the 1987 Constitution.
120. Article 40 of the 1987 Constitution.
121. "The Spirit of the Haitian Constitution of 1987". Gerard Romulus (Member of the Haitian Constitutional Assembly).
122. Article 293-1 of the 1987 Constitution.
123. Article 294 of the 1987 Constitution.
124. Article 297 of the 1987 Constitution.
125. Article 276-2 of the 1987 Constitution.
126. Article 207 of the 1987 Constitution.
127. Article 207-1 of the 1987 Constitution.
128. Article 207-2 of the 1987 Constitution.
129. Article 278 of the 1987 Constitution.
130. Article 178-1 of the 1987 Constitution.
131. Article 278-3 of the 1987 Constitution.
132. Article 278-4 of the 1987 Constitution.
133. Article 263-1 of the 1987 Constitution.
134. Article 266 of the 1987 Constitution.
135. Article 268 of the 1987 Constitution. On its face, this provision applies to both sexes.
136. Article 268-1 of the 1987 Constitution.
137. Article 268-2 of the 1987 Constitution.
138. Article 269 of the 1987 Constitution.
139. Article 273 of the 1987 Constitution.
140. Article 274 of the 1987 Constitution.
141. See, note 138 (supra).
142. Consequently, the American Convention on Human Rights continues to have the force of law in Haiti's domestic legislation.