In the debate over Haiti’s events of February 29, we have heard from almost
all angles. We have heard from opponents and supporters of the elected
government and its replacement, and from officials from France, the U.S., the
Caribbean and Africa. We have not, for the most part, heard from the law. Although
both the new and old government claim “legitimacy” (from the Latin word lex,
or “law”), there has been little analysis of what Haiti’s law requires in the
In Haiti, like most countries, the Constitution forms the highest law of the
land, and automatically voids any inconsistent law or government action.
Article 134 of the Constitution of 1987 sets a five year term for presidents,
which, in President Aristide’s case, ends on February 7, 2006. As in the U.S., a
President’s term can be shortened only by specified events: a conviction at a
trial by the legislature, death, physical or mental incapacity or resignation.
None of these events happened here- President Aristide is alive and well,
and was never even charged by the legislature. He has categorically denied that
A Presidential resignation is a serious matter in any country, so to be
effective it should be clear, obviously voluntary, and unambiguous. The U.S. State
Department and the de facto authorities in Haiti maintain that President
Aristide did resign, citing a handwritten letter signed by President Aristide as
proof. But the Creole expert hired by the State Department to translate the
letter, Professor Bryant Freeman of the University of Kansas, determined that it
was not a resignation.
Boniface Alexandre, the respected Chief Justice of the Supreme Court, was
installed as Provisional President six hours after President Aristide’s
kidnapping. Had the Presidency been legally vacant, Justice Alexandre’s selection
would have satisfied the Constitution’s Article 149, which provides that the Chief
Justice should fill such a vacancy. But subsequent developments strayed even
farther from Constitutional requirements. First, Article 149 requires that
the Provisional President be sworn in by the legislature, and not a single
elected official was involved in the Boniface investiture. Second, the article
requires the organization of new Presidential elections within 90 days of the
vacancy, in this case by May 29. The de facto government has set a target for
elections for the end of 2005, over twenty-one months after the supposed
vacancy, and at the end of President Aristide’s term.
Some argue that security conditions in Haiti made the May 29 deadline
impossible, regardless of the Constitutional requirements. That may be true, but if
strict compliance with the Constitution is not practically possible, we should
strive to comply as closely as possible. If ninety days is too short,
twenty-one months is impossibly long. By comparison, after the U.S. intervention in
1994, decent elections were organized in eight months, under arguably more
difficult circumstances. Elections in Haiti are particularly urgent because the
terms of most legislators and elected officials expired in January. As a
result, the only duly elected Haitian officials are a few Senators, and the
The selection of the de facto Prime Minister, Gerard Latortue, raises even
more legal concerns. There was even less of a vacancy for Prime Minister than
for President: Prime Minister Yvon Neptune remained in Haiti, ready and
willing to continue his duties. The Constitution does not provide for any change
in Prime Ministers upon a Presidential vacancy. The Constitution does require
the Prime Minister to be nominated by the President and confirmed by the
legislature, along with his ministers and governance program (Article 137, 158).
Mr. Latortue was chosen by a counsel of seven “wise men” appointed by a group
of three who were in turn appointed. Mr. Latortue, his ministers and his
program have never been approved by Haitian voters or anyone elected by Haitian
voters. Furthermore, the Constitution requires that the Prime Minister reside
in Haiti for the five years prior to his nomination. Mr. Latortue has resided
in Boca Raton Florida the past fifteen years.
The de facto Prime Minister also appears to be fulfilling many roles that the
Constitution reserves for the President. The Constitution grants the
President several powers, including the power to appoint many public officials and
conduct foreign policy. Traditionally, the President also fills symbolic roles
such as speaking on important national days. Since his investiture, Justice
Alexandre has almost disappeared from public view, leaving important tasks like
negotiating with the international community, conducting foreign policy and
naming officials to the Prime Minister. He even failed to appear publicly for
Haitian Flag Day ceremonies on May 18.
The Constitutional questions raised by the events of February and March have
been raised by Haiti’s neighbors in the Caribbean Community and by the Africa
Union, which together comprise almost a third of the United Nations members.
Their calls for an investigation have, so far, not been answered. The
Caribbean countries have also brought the issue before the Organization of American
States, pursuant to Article 20 of the Inter-American Democratic Charter.
Article 20 applies “[i]n the event of an unconstitutional alteration of the
constitutional regime,” and allows the OAS Permanent Council to take initiatives “to
foster the restoration of democracy.”