The Haitian constitution of 1987 trapped in a storm

By: Romeo Estinvil

I suppose that a revision to the Haitian constitution appears to be crucial. Throughout its history, this nation has had a total of 23 charters that were approved and promulgated: the first in 1806 under the reign of one of the state’s forefather Toussaint L’ouverture and the last in march 1987 during the provisional government of lieutenant general Henry Nanphy.  The single one that I had the benefit to vote for enduringly has been undressed and assaulted.

Which pathway to proceed to amend this tormented constitution? Article 282 stipulates, “The Legislative Branch, on the proposal of one of the house or the executive power has the right to declare that it is necessary to amend the constitution, has the support with reason.” And section 282.1 continues “this statement should combine the accession of two-thirds 2/3 of both chambers”. Even though I am not a lawyer, historian, political scientist, or sociologist; it is essential that all views count in this democratic debate. The 1987 constitution should be amended to recognize Haitians from abroad comparable privileges, rights and duties as those of the interior, and consequently to accord dual citizenship. All Haitians, whether naturalized or nor, cannot be deprived of their nationality.

A vast majority of our governments have used this very popular adage: “constitution is paper and bayonet is iron.” This literally means that the holders of authority may witness their goals come to fruition, and most often, they are against the welfare of this nation. The 1987 constitution, written in the excitement of Jean Claude Duvalier’ departure, encloses various brothels that are regarded as being instruments of division and deadlock. For instance, I bear in mind the notorious, clearly divisive article 291 that barred “Zealous Duvalierists” to search for any elective offices for ten years. Regrettably, the alleged author of this clause, Dr. Louis Eugene Roy was murder in broad daylight in Port-au-Prince, the capital.

This constitution as well speaks of the existence of the Army Forces of Haiti (FADH), which was accountable for ensuring national security. Former president Artiside, without a constitutional adjustment, disbanded the army unlawfully. Even though about everybody agrees that the FADH, who labored against the welfare of the majority, had soughed at all costs its own demolition. The internal regulations, the conduct code, and the chain of command were hardly ever respected.

The most disgraceful affair for the FADH came in 1991 through the unsuccessful coup against General Prosper Avril. Miserably, reduced into two opposing fractions, the Dessalines Barracks under the command Col. Guy François was engaged in a relentless struggle with The Leopards Unit of col. Himmler Rebu. This unproductive situation resulted, as reported by the international press, in a loss of lives of a total of more than thirty soldiers.

The existence of any foreign armed forces on our national territory is formally forbidden. For about six years, inconsistently, there has been an armed force, the United Nations Stabilization Mission in Haiti/ MINUSTAH, a multinational-armed force with a distinctive assignment to ensure the internal security of this land. Across the country, it is an open secret that the MINUSTAH is a lesser evil. Without its presence in Port-au-Prince it would have had more than a dozen of interim governments.

The constitution provides for the office of the Prime Minister, a position that is somewhat contrasting to our political history. This position is undeniably an administrative overload in a country so disadvantaged.  In agreement with the mother law, the President of the Republic is the head of State and Prime Minister, resulting from the majority party in parliament, is in charge of the government. In the most complete disorientation from Leslie Manigat through Jean Bertrand Aristide to Rene Preval, Presidents permanently administer all the state apparatus. Even in a highly developed country like France, the powers invested in the President of the Republic are confused with those of the Prime Minister.

In June 1989, they were disputed elections that permitted the rise to power of Professor Leslie F. Manigat. Following his swearing in, he appointed his longtime friend, Mr. Martial Celestin, prime minister. I must honestly confess that Mr. Celestin was an experienced lawyer, appreciated all over the country. The day when the designated was confirmed, I was into the parliament building to cover the event. At the conclusion of his confirmation by the National Assembly, Celestin had tears coming from his apparently exhausted eyed. With no reservations, he showed gratitude to President Manigat who had made him “the leader of his government”. And the President had a few singular words to communicate: “My dear Martial, you competence is the basis why you now hold this very significant position, not because of our friendship”.

The constituents, in 1987, with the idea of balance the authority of the president, produced this confusion. This has proved to be fruitless, a huge mistake. John Locke, the great British philosopher, whose writings helped guided the framers of the United States’ constitution, would of course object as well. A parliament with well-established and competent members, which he would rather advocate for, would be the best way to have the checks and balances necessary to prevent the office of the president- the judiciary and parliament- from exercising unlawful power in an effort to turn one another into a supplicant body.

In February 2009, in the currently destroyed national palace, President Preval installed a commission, chaired by historian Claude Moise, to study a constitutional reform. A report was submitted to the Executive in which suggestions were made on governance, the term of office for elected representatives, the frequency of elections, the dual citizenships, and the new armed forces. This report was not pursued as a consequence of the unpleasant earthquake.

It is tough to tell the truth, particularly during a period when passions are the norm. Many articles of the constitution have by no means been applied. President Preval himself was driven to power after a political compromise. He did not obtain 50 percent of the electoral sentiments expressed, as the constitution stipulates. Relatively, he received 47 percent, suggesting that he was supposed to be a contender for the office of the president in the general election. The international community instead, fearing social upheavals, against the will of the Provisional Electoral Council (CEP, its French acronym), affirmed Preval President.

Furthermore, the CEP as interim electoral body has been in existence now for 23 years while our mother law speaks of a permanent panel. In order to resolve this constitutional impasse, lately numerous civil groups have presented a new political method to shape a reliable CEP. The constitutionalist, Dr. Mirlande Manigat, welcomed this proposal. Nonetheless, she had added the formula comprised in the transitional provisions of the 1987 constitution has no legal value given that this chapter is expired since the conclusion of the provisional government of general Nanphy.

Mr. Jean Sirius Milien, a law professor on a faculty in Port-au-Prince who was vacationing in Massachusetts, lately told me that if the constitution were applied by at least 25 percent this Island would be a much-improved place. It is accurate that the principle of an amendment is in conformity with our laws, but no matter what constitution Haiti has now, tomorrow or in the future, it will be undressed and assaulted all over again. The reality is that any adjustment has to begin normally in the minds and behavior of individuals.

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