JURIST Special Guest Columnist Brian Concannon Jr., Director of the Institute for Justice and Democracy in Haiti, says that although the political prisoners lingering in Haiti's squalid jails are not the byproduct of the policies of incoming President René Préval, they are certainly his problem, drawing criticism with each passing day not only from international human rights groups, but also from Haiti's urban poor…

Haiti’s new government issued a democracy dividend on August 14 with the acquittal and release of four political prisoners. Three months into constitutional President René Préval’s term, most of the high-profile members of Haiti’s Lavalas movement jailed by the brutal Interim Government of Haiti over two years have been released. But if the cases demonstrate the democratic transition’s promise, they also illustrate its pitfalls.

The high-profile cases were all easy calls from a legal standpoint. They were in some ways easy from a political standpoint as well, because President Préval comes from the same Lavalas movement. Nevertheless, the new government took three months to release the prisoners, because of strong resistance within both the justice system and Haitian civil society. That resistance spells delays, and trouble, as Préval’s government tackles the much harder and more numerous cases of low-profile political prisoners.

The “Easy Cases”

Activist and folksinger Annette Auguste (known as So Ann) was released on August 14 after more than 27 months in jail. Ms. Auguste was arrested illegally in May 2004, without a warrant and in the middle of the night, by U.S. Marines who had entered the country in the wake of Haiti’s February 2004 coup d’etat. The Marines claimed she was threatening U.S. troops, but never presented any proof. The IGH claimed she was involved in sorcery and in violence during demonstrations at the State University (Université de l’Etat Haïtien, or “UEH”) in December 2003. But after investigating for two years, all the while refusing motions for pre-trial release, the IGH was not able to present a single witness or item of proof that Ms. Auguste had anything to do with the UEH violence. In the meantime, justice advocates in Haiti regularly protested the unjust detention, and human rights groups like Amnesty International campaigned abroad for her release or trial.

Last March, the Leny Fredd’Herck, the chief prosecutor in Port-au-Prince’s trial court, conceded that there was “no evidence, no indication and no presumption of any involvement” by Ms. Auguste in the UEH incidents, and recommended dropping the charges. But a judge allied with the IGH sent the case to trial anyway, claiming that Ms. Auguste’s admission that she regularly organized demonstrations for Lavalas was sufficient grounds to find her responsible for the UEH violence, which allegedly involved some Lavalas partisans. The defendants appealed, and at the appeals court another prosecutor advocated sending the case to trial, without citing any evidence. The Appeals Court agreed with the latter recommendation, without explaining why, and on August 14, the case went to trial. At trial, no evidence was presented against Ms. Auguste or any of her five co-defendants, not a single witness appeared against them. A third prosecutor, noting the obvious, asked the judge to acquit all, which he did.

Former Prime Minister Yvon Neptune was provisionally released on July 27 after twenty-five months in prison, most of it on a limited hunger strike. He turned himself in to police twice: the first time in June 2004, after hearing about a warrant for his arrest on the radio, the second time in February 2005, after he was forced from the prison at gunpoint during a prison break. Mr. Neptune was so determined to clear his name through the justice system that in late 2004 he refused a government offer to fly him out of the country for medical treatment, fearing he would not be allowed back into the country (and prison) following the treatment.

Haiti’s Constitution guarantees all prisoners an initial hearing within 48 hours of arrest, but Mr. Neptune did not get his for a year. He was formally charged 15 months after the arrest, in September 2005. The UN human rights mission in Haiti quickly called the charging document unconstitutional on its face. His codefendants appealed, and although they were entitled to a hearing and decision within a few weeks, the appeals court declined to hear the case for seven months. The court finally held a hearing in May, where the prosecutor recommended dropping all charges against Mr. Neptune, citing procedural irregularities and an absence of proof. But the court has still not yet issued a decision, 11 months after the appeal.

In the meantime, calls for Mr. Neptune’s release came from UN Secretary-General Kofi Annan, human rights groups throughout the world, and even from the United States, the IGH’s principal international patron. The IGH managed to deflect the protests, claiming deference to the judicial system. Haiti’s elected government, installed last June 6, found these calls, and the even louder calls coming from its own grassroots supporters, harder to resist. In late July, the Minister of Justice asked the prosecutor to request the appeals court to provisionally release Mr. Neptune on humanitarian grounds, to seek medical treatment. The court granted this request, and Mr. Neptune was transferred to a hospital run by UN peacekeepers.

Unfinished Transition

In most contexts, the pre-trial release of a prisoner who had twice turned himself in and once refused to leave the country, or the acquittal of a defendant against whom no evidence was presented, would be routine. But the Neptune and Auguste cases count as hard-won victories in today’s Haiti. Although the legal merits of the decisions were uncontestable, a powerful constituency installed within the justice system and without by the IGH and its allies survived Haiti’s democratic transition, and continues to resist the liberation of political prisoners.

The most obvious resistance to freeing prisoners lies within the judiciary itself. The IGH won no power in this year’s Presidential and Legislative elections, but it maintained power in the judicial branch by packing the courts with sympathetic judges throughout its two-year reign. In 2004 and 2005, the Minister of Justice illegally pushed out trial judges appointed by Haiti’s democratic governments and replaced them with people willing to do the IGH’s bidding. In December, 2005, in what has been dubbed “the Friday Night Massacre”, the Prime Minister replaced half of the Supreme Court in one fell swoop, after the Court ruled against the IGH in a controversial case. Both the firings and the executive’s unilateral naming of replacements were as unconstitutional in Haiti as they would have been in the United States. But the judges remain on the bench

President Préval has been reluctant to respond to complaints about the IGH’s judges, declaring that he will not answer the IGH’s interference with judicial independence with his own interference. But respect for the separation of powers does not require acceptance of the illegal status quo. To the contrary, the Constitution requires action, to ensure that current judges have been approved through its procedures. Supreme Court judges, for example, must be chosen by the President from a list of three candidates per seat proposed by the Senate. The judges named to the seats vacated by the Friday Night Massacre were simply appointed by the Prime
Minister, with no parliamentary consultation. Now that Haiti has a constitutional Senate and a constitutional President, it should have constitutionally-appointed judges.

There is also a constituency within Haitian civil society for keeping the political prisoners in jail. Some student groups, including the Haitian Federation of University Students (FEUH) had been active in the campaign that led to the February 2004 coup d’etat, and had filed complaints in the case against Annette Auguste and her co-defendants. But when the judge investigating the accusations summoned the students to testify, they refused. They also failed to appear at trial on August 14. But three days after the acquittal, FEUH members organized a well-attended press conference to protest the decision.

Another organization, the Réseau National de Defense des Droits Humains, (RNDDH) is playing a similar role in Mr. Neptune’s prosecution. RNDDH used to be known as NCHR-Haiti, and developed a good reputation for human rights work during Haiti’s 1991-1994 de facto dictatorship. But the organization became increasingly politicized, and in the wake of the 2004 coup d’etat it cooperated with the IGH in persecuting Lavalas activists. The persecution became so flagrant that NCHR-Haiti’s former parent organization, New York-based NCHR, publicly repudiated the Haitian group and asked it to change its name. RNDDH changed its name, but maintained its dogged pursuit of Mr. Neptune and other Lavalas members. The organization filed a suit on behalf of a group of people claiming to be victims of a massacre a few days before the coup, with the help of a substantial grant from the Canadian government. RNDDH’s legal team tenaciously opposed, in court and in the press, the prosecutor’s recommendation to drop the case, and even the request for humanitarian release.

Political Obstacles

Beyond this political polarization, Haiti is now afflicted with an increase in violent common crime. The crime wave has many causes, including demographics, poverty, urbanization and the IGH’s diversion of police energy to persecution of political dissidents. But its effect is public outrage, especially among middle-class Haitians, and urgent calls for the government to re-establish security.

Pressure to get tough on crime, combined with the resistance to freeing the political prisoners, will make tackling the remaining political prisoner cases extremely difficult for Haiti’s government. Hundreds of people, mostly young men from the poor neighborhoods that support Lavalas, sit in Haiti’s jails with no justification for their detention. Under the IGH, police routinely swept though neighborhoods, arresting young men by the dozens. The police, and even UN Peacekeepers, routinely made warrantless arrests based on uncorroborated tips from informers.

The Hard Cases

Some of these prisoners were arrested because they were suspected Lavalas activists, others because they were suspected criminals. The problem for the low-profile political prisoners is that it is not easy to tell the illegally-held suspected dissidents from the illegally-held suspected common criminals. Most of the low-profile political prisoners were involved in politics at the neighborhood level, where organizing is informal. They may not have an official position or title that clearly establishes their political role, so it is harder to establish a political motive for their arrest.

Haiti’s Constitution and international law do not distinguish among types of illegally-held prisoners. Instead, they require that all prisoners who are not detained for a legally adequate reason be released immediately. But a general, large-scale release would be politically difficult for the government. It would inevitably put some criminals on the street, adding to the reality of the crime problem, but more important, providing government critics an opportunity to blame any crime committed over the next few months on the releases.

The government could sharply reduce the number of political prisoners by installing a fast-track procedure for prosecutors to review cases of alleged political persecution and recommend dismissals where appropriate. In Haiti’s notoriously slow and corrupt justice system, expedited procedures would require the Ministry of Justice to lean hard on its prosecutors, but the Ministry would be leaning with popular support. Grassroots human rights organizations recently delivered a tool to help identify and prioritize political prisoner cases: on August 24, a coalition of groups presented officials with a list of political prisoners. The human rights organizations’ conclusions will need to be confirmed through an independent judicial process, but the list is certainly a good place to start, and will provide a yardstick for measuring the progress of releases.

Conclusion

Political prisoners are not President Préval’s fault, but they are very much his problem. Every day they spend in Haiti’s squalid prisons exposes his government to more criticism, from international human rights groups, but also from Haiti’s urban poor, who are the strongest constituency for the both the political prisoners, and numerically, for the new government. They understand the difficulties of the justice system, and will be patient, but only as long as they believe that the system is moving in the right direction.

The release of the prominent political prisoners in July and August provided some proof that the new government was moving in the right direction. But the goodwill they generated will not last forever. President Préval and his government must show more proof, by moving quickly to submit illegally-appointed judges to a constitutional approval process and by instructing prosecutors to prioritize the files where there is a credible claim that the defendant was arrested for his political activities.

Ronald St. Jean of the Groupe de Defense Des Droits des Prisonniers Politiques in front of the National Penitentiary, with a list of political prisoners.

Members of the Kolektif Fanmi Prizonye Politik demonstrate outside the Penitentiary

Political Prisoners Annette Auguste and Paul Raymond In Court

Human rights lawyer Brian Concannon Jr. directs the Institute for Justice & Democracy in Haiti, www.ijdh.org

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