Rule of Law in Haiti: Challenges and Prospects
Prepared for the House Judiciary Committee, December 7, 2017
Haiti has all the appurtenances of the rule of law, yet the rule of law does not truly apply. The exceptions are significant enough to place a pall of unpredictability over the entire economy, blocking all but a trickle of economic progress.
In 1960, the GDPs of Haiti and the Dominican Republic were roughly the same. Today the DR’s is ten times greater.. The difference is that the neighboring republic has applied the rule of law, while Haiti’s ruling personalities have flouted it as convenient.
This flouting of the law is most apparent in the impunity accorded to the top political personalities implicated in violence and corruption, so much so that they are commonly described as the “untouchables.” Most notably, only weak prosecutions were undertaken against past presidents Jean-Claude Duvalier and Jean-Bertrand Aristide.
For example, when the successor government to Aristide filed a lawsuit in Miami Federal Court in 2005 seeking recovery of stolen assets, the lawsuit was dropped by the next president, an ally of Aristide’s, and the head of the government anti-corruption agency was jailed. When both Duvalier and Aristide returned to Haiti in 2011, charges were filed, but both cases proceeded slowly. Duvalier died before his case matured, and the case related to Aristide still languishes. In addition to corruption, he is suspected of ordering the murder of Haiti’s leading journalist in 2000.
The impunity at the top applies to the subalterns as well, and as recently as 2015–16 they were able to freely deploy violent rent-a-mobs on the streets of Port-au-Prince to overturn election results that were not to the liking of certain powerful candidates. Finally they deployed men to burn and break into schools where ballots were being stored. The election commission had to cancel the election. Haiti was thrown onto an unconstitutional makeshift arrangement despite having perfectly valid election results at its disposal. Eventually, the election was held again, and the public voted even more strongly against the disappointed candidates.
Haiti’s top economists actually sought to put a dollar figure on how much this gross illegality cost the country.
Public order is maintained in Haiti primarily by the pacific nature of the vast majority of Haiti’s population, and by the often efficacious application of law in nonpolitical, technical areas such as property relations among moneyed Haitians. Haiti has an excellent constitution, a judicial system extending from the supreme court to the justices of the peace, a ministry of justice, a national police, and a state anti-corruption investigatory unit. The bar association is active and well qualified.
Entrepreneurs willing to accept the risks can survive and prosper in Haiti. Heineken, for example, recently invested $100 million, the second-largest foreign investment in Haiti’s history. Asked how it would handle the risk, a Heineken executive replied dismissively, “They wouldn’t dare.” The executives explained that unlike American brewers, their company came from a small country and had to expand abroad. It had acquired much experience in Africa and could evaluate political risk. It anticipated a steady long-term expansion of Haiti’s economy that would expand the beverage market.
The political risks created by the weakness of the rule of law in Haiti have ravaged the gamut of Haiti’s industries, but none more severely than tourism and livestock-raising. Tourism uniquely depends on a secure environment. It has been the number-one driver of the DR’s growth. Although the DR’s institutions are not perfect, it is well known at the popular level there that anyone caught molesting a foreign tourist faces long years in inhumanly harsh prison conditions. Thus, foreigners can walk around safely there. In Haiti, the largest collection of modern hotel rooms was at the Club Med beach on the north coast. There was no specific act of violence, but a pattern of hassles, exactions, pressures, and blockades by the local authorities finally forced management to close the resort in 1995. The resort has recently re-opened under new management.
Similarly with livestock. Our founding board member Sen. Rudolph Boulos asked the farmers of the Nord-Est province why they no longer kept livestock. A farmer answered, “Senator, if I put my cattle out back and went to bed, they would be gone by the morning.”
Corruption has flourished in inverse proportion to the prevalence of the rule of law. It typically comes in the guise of administrative delay, unresponsiveness, and blockage. In particular, the corruption in Haiti’s justice system itself is legendary. Human-rights groups in Haiti have inveighed against the large number of criminals who manage to get enrolled as candidates. So many, that in 2009 one group warned that the senate would be reduced to a “lair of bandits.” Haitian newspapers have reported that you can go to the local drugstore and buy forged candidate-clearance papers from the police and judicial system. But it is a measure of the corruption that the same human-rights group that warned so eloquently of criminals in 2009 was found at the side of the most egregious criminal-candidate in 2015. In this regard, even the finest Western organizations are not immune to trivializing the rule of law in Haiti. When as noted Duvalier and Aristide both returned to Haiti in 2011, Amnesty International campaigned bravely for the prosecution of Duvalier, but said not a word about Aristide.
One would hope that the election commission would take up the slack and disqualify the criminal-candidates with their publicly-recorded convictions and false clearances. But it was carefully explained to the Haiti Democracy Project by Haiti’s best qualified and most upright electoral official that once the candidates had got these papers, the commission was powerless to disqualify them since it could not overrule the police or justice system. As a result, over forty convicted or suspected criminals were qualified as candidates in the 2015 presidential and legislative elections, including the two top presidential runner-ups, both of them implicated in murder. In a similar vein, in 2011 a sitting senator went on the record threatening the electoral commissioner’s life if he did not rule against a certain female candidate for the legislature. There were no repercussions and the candidate, although victorious, was blocked from taking office.
It is difficult, therefore, to evaluate the rule of law in Haiti without resorting to a series of actual incidents. The weakness of anecdotes is that they cannot quantify the phenomenon. The significance of a small number of cases can be exaggerated. However, the greatest damage may be psychological, in convincing potential investors large and small that their investments would be unprotected by law. There is no equivalent in Haiti to the Dominican tourist industry that insisted that its investment be protected. Certain Haitian economic interests, indeed, thrive on the lawlessness and the others, although the majority, are not strong or resolute enough to insist on the imposition of a modern state.