JURIST Special Guest Columnist Brian Concannon Jr., Director of the Institute for Justice and Democracy in Haiti, says that Haitian President-elect Rene Preval faces a daunting if familiar series of legal obstacles involving parliament, the judiciary and the police as he attempts to move forward with economic and social reforms following his latest election victory…

"Naje pou soti" in Haitian creole means “swim your way out.” Haiti sits on an island, where rivers swell and rage after rain, few people know how to swim, and many die trying to flee the country in rickety boats. So hard experience makes the saying less theoretical and more disconcerting than Americans’ “sink or swim.”

Haiti’s President-Elect, René Preval, famously invoked the saying towards the end of his first term in office, which ran from 1996 to 2001. Preval had been elected to pursue progressive economic and social policies- building schools, roads and hospitals, reforming and supporting Haiti’s agricultural base, developing a judiciary responsive to the majority of Haitians who are poor, etc. — but had struggled to implement the mandate.

Parliamentary Paralysis

Preval’s biggest obstacle was the Parliament, even though most legislators were elected on the same progressive platform. The OPL party, the largest party in the legislature, changed course after the election and opted for the policies championed by the international financial institutions and the U.S. – cutting government spending, allowing the private sector more control of the economy and reducing tariffs that protected Haitian agriculture.

The policy dispute spilled beyond Parliament into the streets, where protests forced the resignation of the OPL Prime Minister in June, 1997. For the next nineteen months Parliament refused to confirm any of President Preval’s nominations for a replacement Prime Minister. The international community took the legislators’ side, and withheld urgently-needed development assistance to force the administration to give in to the opposition’s demands.

The dispute turned into an impasse, and for the next three years endless negotiations diverted the Administration’s energy and paralyzed government operations. Even officials not involved in the talks were reluctant to initiate long-term projects, because they expected the negotiations would at any time replace them with a new team with new plans. The impasse was eventually broken not by talks, but by Parliamentary suicide- the legislators’ intransigence led to their terms expiring without new elections being held. But in the meantime Haiti’s poor became poorer and more numerous.

Desperate Measures For Desperate Times

Mr. Preval invoked “naje pou soti” in a meeting with peasants who were complaining about the difficulty of their situation- complaints that the President was hearing everywhere he went. An agronomist by training, Preval knew how bad things were in the countryside, but as President he also knew that there was no easy solution. He invoked the saying to dispel any false hopes: the peasants needed to know that the government did not have the resources to elevate them out of their misery, and that the international community would not come through with the promised development assistance. But President Preval also wanted to instill a hope that was more limited and desperate, but more real- that Haitians could at least survive by relying on their own resources.

The President turned out to be right on both counts. No one did help- throughout the remaining time of his Administration, the international community increased its pressure and decreased its development assistance. But Haiti also did manage to swim- not out of danger, but enough to keep alive and fighting. President Preval found ways to build hundreds of miles of roads, dozens of schools and a few health centers. He transferred thousands of acres of land into peasants’ hands and he organized the two best human rights trials in Haiti’s history.

It appears that Preval will once again be President, once again with a mandate to implement progressive policies. But despite the strength of his landslide election victory on February 7- he won 4 times more votes than his nearest competitor- President Preval and the citizens who elected him will need to start swimming from the very beginning. An impressive array of forces and obstacles has already assembled to delay, frustrate and block his implementation of progressive policies.

Parliamentary Paralysis II

Preval may have even more trouble with Parliament this time around. Although the results of the legislative elections will not be decided until the second round (which is still not scheduled, a month after the first round), it is clear that Parliament will be fragmented, with many parties each having a few seats. Perhaps more important, a large percentage of legislators will be from conservative parties opposing Preval’s progressive agenda.

Both the parliamentary fragmentation and the conservative success are the product of two years of repression against progressive political activists. Many top leaders, including the last Constitutional Prime Minister, were kept of politics by being kept in jail, illegally. Grassroots activists were arrested or killed, police routinely fired at peaceful, legal demonstrations and critical news outlets were closed or intimidated. Paramilitary groups, including groups of former soldiers who had led the 2004 coup d’état, harassed, intimidated and even killed progressive activists with impunity.

The repression was particularly focused against Haiti’s largest political party, Fanmi Lavalas, which won large majorities in both the Senate and the Chambre des Deputés in Haiti’s last election, in 2000. Fanmi Lavalas refused to participate because the Interim Government of Haiti (IGH) refused to free its political prisoners- including former Ministers and parliamentarians- or to stop the brutal repression of grassroots activists (some individual candidates claimed the Fanmi Lavalas banner, without the approval of the organization, or for the most part, the voters). As a result, the party with the best organization throughout the country, the most electoral support and the most legislative experience was removed from the contest.

Other parties close to Fanmi Lavalas, including Preval’s Espwa (Hope) party ran candidates in some races, but not all. They lacked Lavalas’ organization and name recognition, and the repression forced them to run a very limited campaign. Even Preval, with the international spotlight on him, planned very few public campaign activities and was forced to curtail this limited schedule when mobs destroyed the podium for one appearance and attacked his supporters at another.

The low-key campaign was adequate for the former President with universal name recognition and a five-year record. But it was not adequate for less experienced and prominent local candidates, who were unable to conduct the grassroots organizing work necessary to build a political base. Allies of the IGH, on the other hand, were able to organize freely at the local level, and often had the benefit of political patronage to attract campaign workers and supporters.

Many areas that voted overwhelmingly for President Preval’s progressive policies will be represented in Parliament by conservatives committed to opposing the policies. As a result, to have any of his program passed, Preval will need to compromise away from the platform he was elected on. Preval will not have
much opportunity to increase Parliamentary support during his term either. There are legislative elections scheduled for late 2007, but only for 1/3 of the Senate. Broader elections for the entire House of Deputies and another third of the Senate are scheduled for 2009, but even if Preval’s candidates win that one, they will take office with only a year left in the Presidential term.

Fragmentation in the legislature will make it extremely difficult to assemble a majority on even uncontroversial legislation. The fragmentation is compounded by inexperience- only a tiny percentage of those in the second round have served in a legislature before. The Senators and Deputies will need to learn their jobs, choose leaders, find ways of working with people from across the political spectrum, and draft and pass the legislation that the Haitian people urgently need, all under extreme pressure.

The fragmentation will almost certainly be compounded by yet another political crisis following the runoff elections. The first round on February 7 was plagued by poor organization and a vote count that was unruly, and by many accounts fraudulent. Thousands of ballots were missing, many of which turned up partially burned in a dump. Electoral officials and political parties claim the count was manipulated and information concealed.

Many of the irregularities were rendered irrelevant in the Presidential contest by Preval’s landslide, but they will loom larger in close legislative contests. The Electoral Council is also in disarray- its General Director, Jacques Bernard, fled to the U.S. ahead of fraud allegations, and spent two weeks on a lecture circuit sponsored by Lavalas opponents in the U.S., claiming that others were responsible for fraud, and that his farm was burned in retaliation for his work. He claimed he would return only after three members of the Electoral Council were fired, but he returned to Haiti in early March to the same Council (and according to an investigation, to an undamaged farm).

Under these circumstances anyone who loses, especially in a close race, will have grounds to contest the results. So many first round candidates complained that the Electoral Council indefinitely postponed the runoffs scheduled for March 19. To effectively deal with these complaints, the Council should organize a transparent and precise retabulation of the results, and reconstitute results that were destroyed using the election code’s backup systems. The Council declined to take these measures to resolve the dispute over the Presidential election, preferring a negotiated settlement that preserved everyone’s right to complain. It is likely that the Council will take a similar path with the legislative results, planting the seeds for the next political crisis in fertile ground.

Judicial Reform?

The judicial branch may be equally problematic. Haiti’s justice system has evolved for three centuries to serve the needs of dictatorships. As President Preval found out in his first administration, effective judicial reform is a long-term project. Substantial progress requires patiently training a new generation of judges, prosecutors and lawyers and persistently integrating them into the system with enough support for them to do their jobs honestly and well.

But this time around President Preval will find the job harder than before. Many of the promising judges and prosecutors trained in his first term have been pushed out of the system, illegally, by the IGH. Some have been beaten, or their houses burned. Some may be lured back by renewed opportunities to build a democratic justice system, but many will be reluctant to stick their necks out a second time. The IGH has also packed the judiciary with officials whose main qualification was a willingness to comply with the IGH’s orders, especially when the orders conflicted with the law’s requirements. The most notorious court-packing incident came in December 2005, when Prime Minister Gerard Latortue illegally fired five Supreme Court Justices and replaced them with his henchmen. But the same process has been repeated more quietly throughout the judicial ranks for two years.

Cobbling Together A Government

Preval’s most difficult battle of all may be within his own Executive Branch. Haiti’s Constitution grants the Prime Minister and the Ministers a large share of executive power. They hire most officials, run most government programs and manage the lion’s share of the national budget. Although the President nominates the Prime Minister, he must choose someone from the majority party in Parliament (if there is no majority party, as is likely to be the case, the President chooses someone in consultation with Parliamentary leaders). Both the Prime Minister and his cabinet must be ratified by Parliament, and a legislative vote of no confidence will cause the government to fall.

In order to cobble together enough votes for ratification, Preval will most likely be forced to assemble a cabinet from many disparate parts- political parties that have no common political vision, just a shared agreement to vote for ratification in return for the power of controlling a ministry. Just getting a government ratified by a fractured Parliament will take much effort, and perhaps more importantly, time. Organizing the government to advance a coherent policy will be extremely difficult. In the best case scenario, Ministers of good faith but diverse ideologies will struggle hard to find consensus on a few key issues. In a more likely scenario, broad agreement on anything will be impossible, and many Ministers will spend their time and energies implementing their own, often contradictory, policies and expanding their patronage base.

Controlling the Police

Managing the cabinet may, however, be easy compared to getting a handle on the police force. Haiti’s police have become highly politicized, corrupt and violent over the two years under the IGH. Many good officers have been forced out or killed; others have been turned into killers by the violence. Former soldiers, many of them violent, have been integrated into the force, bypassing normal recruitment and promotion regulations. The population, especially in poor neighborhoods, is deeply distrustful of the police, for good reason- police regularly conduct murderous raids in their areas and routinely make illegal warrantless arrests. Even the police force’s General Director complains that at least a quarter of his officers are criminals.

Reforming the police will take time, and money, both of which are in short supply. Reform will also need to be balanced with the urgent need to fight increasing common crime. Haiti’s police force is already dangerously understaffed, which will be exacerbated in the short term by diverting human resources to reform efforts, and even by the process of removing crooked officers.

Demoting Democracy, Selling Sovereignty

Preval’s authority with the police was severely limited by a controversial and far-reaching agreement reached between Prime Minister Latortue and Juan Gabriel Valdes, the head of the United Nations Stabilization Mission in Haiti (MINUSTAH). The agreement grants MINUSTAH extensive authority over the police and government, including a) a right of consultation before any police operation; b) veto power over police promotions; c) access to all files of any government official or entity relating to the police; and d) veto power over international agreements relating to the police.

The deal has been controversial because it was reached quietly- it was signed in New York and not even the police chief or Justice Minister even knew about it until a week after the signing- and because it hands an immense amount of national sovereignty to MINUSTAH. But it should be equally controversial because it demonstrates a deep disrespect for Haiti’s voters, its Constitution and its democracy. The deal was signed on February 22, a week after the announcement
of Preval’s victory, and five weeks before his (then) scheduled inauguration. If the agreement was appropriate to negotiate at all, it would have been appropriate to negotiate it with the President who would have to abide by it, and who also had the electoral and constitutional legitimacy to bind his country.

There was no reason why the deal could not have been negotiated with the elected President, other than a fear that the voters’ choice would not agree to it. It is not hard to understand why Prime Minister Latortue, who was never elected and is on his way out after two disastrous and unconstitutional years in office, would be willing to pull a fast one on his country and his Constitution. But the UN should be above such underhanded stunts.

MINUSTAH’s bad faith is magnified by the fact that the agreement grants it extraordinary control over a police force under an elected President, when the Mission refused to exercise even ordinary oversight over the force under the unelected dictatorship. Time and again MINUSTAH forces stood by while the police massacred prisoners, invaded neighborhoods and made illegal political arrests, insisting that their mandate prevented them from interfering in the police force’s internal affairs. The Mission that did not issue a single investigative report in almost two years of Mr. Latortue’s reign will now have access to President Preval’s personal diary if he writes in it about the police.

The agreement is unconstitutional and illegal, as Mr. Latortue was forced to concede once it became public, so President Preval is not legally required to recognize it. But he may be politically required to do so- MINUSTAH currently intends to stay for at least half of Preval’s term, and there is not much he can effectively do about it. With little money, a police force loyal to his unelected predecessor and the example of his predecessor flown to exile by the international community, Mr. Preval’s bargaining position is weak.

More Desperate Times

In the meantime, life will get harder for Haiti’s poor. The life expectancy for men has dropped to 48 years, infant mortality and AIDS are by far the worst in the hemisphere. Most Haitians struggle to get by on little more than $1 a day, over half are malnourished.

As before, President Preval will not be able to count on the international community to help fight Haiti’s poverty with the necessary consistency. There will be some development assistance sent to Haiti, and much of it will have a positive impact on the ground. But this aid will, sooner rather than later, become contingent on the Preval administration implementing the international community’s economic policies. The U.S. government, among others, has already declared that Preval must compromise with his political opponents, who the voters resoundingly rejected. Those pressures will increase with the disputes likely to arise from the legislative elections and the choice of ministers, with the international community consistently taking the side of Lavalas opponents.

Right now President Preval does not even know when his new job starts. Although the Constitution called for the inauguration of a new President on February 7, and the latest electoral decree scheduled it for March 29, the inauguration is now held hostage to the second round of legislative elections. The Constitution requires the President to take his oath of office in front of Parliament. The IGH, which was itself installed without Parliament and which ignored constitutional election deadlines in June 2004 and November 2005 as well as the February 7 inauguration deadline, is insisting that it needs a parliament to hand over power. The best likely scenario has the inauguration in early May, three months late and 5% through the Constitutional term.

Elusive Victories

February 7 was the fourth consecutive landslide victory for a Presidential candidate from the Lavalas movement. In any other country, such electoral success would translate into a long period of stability, and an opportunity for the victors to implement the policies they were elected on. Instead, for three of those terms, there have been two coup d’etats leading to five years of exile for the elected President, a nearly perpetual controversy over legislative elections and very little progress on the root causes of Haiti’s misery. Time will tell whether President Preval can escape this cycle of instability in the fourth of these terms, but one thing is certain: he and the people who voted for him had better start swimming now.

Brian Concannon Jr., Esquire, directs the Institute for Justice and Democracy in Haiti, and observed several elections in Haiti for the Organization of American States.

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