OEA/Ser.L/V/II.74

doc. 9 rev. 1

7 September 1988

Original: English REPORT ON THE SITUATION OF HUMAN RIGHTS

IN HAITI CHAPTER I THE LEGAL AND POLITICAL SYSTEM IN HAITI General Considerations 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. continued... [ Table of Contents | Previous | Next ] 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.