On the constitutional void in Haiti

Download PDF: 

  • Fall 2021 ∕  Winter 2022
On the constitutional void in Haiti

Malick Ghachem, a research affiliate at CIS, is associate professor of history at MIT. A historian and lawyer, his primary areas of concentration are slavery and abolition, criminal law, and constitutional history. He is the author of The Old Regime and the Haitian Revolution (Cambridge University Press, 2012), a history of the law of slavery in Saint-Domingue (Haiti) between 1685 and 1804, now out in French translation. In May 2021, he moderated a Starr Forum on "The Haitian Constitutional Crisis and the International Community," available here on YouTube.

FALL 21/WINTER 22 :: précis Faculty Feature :: Malick Ghachem
Malick Ghachem
February 15, 2022

Speaking at the White House announcement of his retirement plan on January 27, 2022, Justice Stephen Breyer held up a copy of the United States Constitution and pondered the "miracle" of a country of more than three hundred and thirty million who have "decided to help solve their major differences under law." "And when the students get too cynical," he observed, "I say 'Go look at what happens in countries that don't do that.' ... People have come to accept this Constitution, and they've come to accept the importance of a rule of law."

Have they? Which people? And what countries does Justice Breyer have in mind by those that do not accept the "rule of law"?

Justice Breyer has long been one of the most avid and astute students of comparative constitutional law on the Supreme Court, and his ruminations on this topic are worth taking seriously, if not uncritically. Having had our attention directed in this way to the phenomenon of constitutionalism (or its lack thereof) abroad, it may be useful to consider what one foreign nation's recent experience with constitutional crisis actually looks like. Doing so can help us to understand the enduring agony faced by one of our closest neighbors—and perhaps, in the process, generate a more humble and sympathetic appreciation for our own constitutional strengths and weaknesses.

Haiti: a case study

Let us then take up the example of Haiti, as a case study worth analyzing for its own sake, and also for the opportunity it offers Americans to look themselves in the mirror. 

First, some background on the current Haitian constitutional crisis, with an eye towards asking whether the fundamental problem, as Justice Breyer suggests, is that Haitians (for example) have not "decided to help solve their major differences under law."

As with the analysis of any crisis, the central question is, in a sense, how far back to take the story. There is no question that a nation with not so distant origins in the experience of slavery and revolution remains hampered by the path-dependent legacies of colonialism, not simply the early modern chapter under French sovereignty but also the American occupation of the twentieth-century interwar period (1915-1934). That occupation paved the way for the country's authoritarian travails to come. A more proximate set of causes has to do with Haiti's ongoing emergence from under the shadow of the Duvalier dictatorship of 1957-1987. The three-decade reign of father and son François and Jean-Claude Duvalier brought a ruthless form of authoritarian violence and political persecution from which Haiti is still recovering. Among its other effects, the Duvalier dictatorship spawned a vast, far-flung diaspora of Haitian intellectuals and professionals in North America and parts of Europe, and ingrained a political culture of populist strongmen and gangsterism that has overwhelmed concerted efforts to introduce democratic governance into the New World's first independent black state.

The centerpiece of those efforts was the 1987 Constitution, promulgated one year after Jean-Claude Duvalier's departure brought an apparent end to Haiti's seemingly forever reign of terror. That hope proved illusory, for Duvalier-style violence returned with a vengeance in the form of a military junta that overthrew the democratically elected president Jean-Bertrand Aristide in 1991, less than a year after he took office. Repeated cycles of political instability, economic collapse, natural disaster, humanitarian assistance, and foreign military intervention have failed to crack the nut of Haiti's constitutional crisis.

The most recent chapter of this stalled transition to democracy came to a head in early 2020 over the issue of the interpretation of the 1987 Constitution. Article 134 of Haiti's 1987 Constitution provides for a five-year presidential term that ends on the February 7 following the date of the elections. Though elected in 2016, Haïti's then president, Jovenel Moïse, insisted that because an interim president occupied the first year of his five-year term, he was entitled to remain in office until February 7, 2022, rather than 2021. This claim brought massive numbers of Haitians into the streets of Port-au-Prince and other cities to protest Moïse's refusal to leave office. 

As it has so often in the past, the so-called "international community" aggravated the domestic political strife. The US State Department, along with the United Nations and the Organization of American States, took the extremely unpopular position that Moïse was justified in holding office until early 2022. Beneath the constitutional dispute lay years of widespread discontent with Moïse and his Tet Kalè government, which have been implicated in financial scandal, support for armed gangs, and other abuses. The conflict deadlocked the country's system of government and brought its economy to a standstill.

That impasse would have been difficult enough to resolve on its own. In July 2021, however, Moïse was assassinated in a nighttime raid on his home in the hills above Port-au-Prince—an act that may have been carried out by Colombia paramilitary mercenaries hired by powerful Haitian businesspeople and politicians linked to the drug trade. According to reporting by Maria Abi-Habib of The New York Times, Moïse had been preparing to go public with the names of these individuals in the months and weeks before his assassination, and the hired guns made a point of retrieving the list of drug traffickers from the home of the late president when they murdered him. The caretaker prime minister whom Moïse appointed in the days before his assassination, Ariel Henry, is himself believed to have ties to one of the chief suspects in the killing, and Henry has dismissed from office the public prosecutor who wanted to interview him about these connections. Suffice to say that Henry's ties to both Moïse and to his suspected assassins have earned him few admirers in Haiti, all the more so since he has now asserted the right to remain as the functional acting head of state past February 7, 2022—the date that would have, by any account, brought an end to the regime of the president who appointed Henry. 

Unsurprisingly in this context, the popular resistance previously directed at Moïse and his government is now channeled towards Henry, who insists that only he has the legitimacy to lead Haïti towards constitutional reform and long overdue elections later this year. In opposition to these (dubious) claims, a coalition of leading civil society organizations, trade unions, and political parties known as the Montana Accord has stepped forward to propose an alternative transition government and a path out of the country's constitutional and political vacuum. In a statement in late January, Henry observed (with transparent reference to the Montana Accord) that "there is no legal or constitutional authority for anyone to claim the right to designate himself as interim president. I hope that [the Montana Accord signatories and other platforms] will come to understand that such initiatives only deepen our divisions." In a February 6 op-ed in The Miami Herald, he pressed this argument further: "A president cannot be named, appointed, or selected by any group of people or organization. Elections are the only way forward. I am governing by consensus to make up for an institutional void."

This line of reasoning is not unreasonable, except that Henry is unwilling to accept the logical conclusion of his premise: namely, that it undermines his authority no less than the authority of the Montana Accord. On one point, the acting prime minister is entirely correct: Haiti suffers from an "institutional void." This constitutional void is so thoroughgoing that, strictly speaking, there are currently in Haiti at most a handful of officials who can claim the legitimacy of having been popularly elected, and there is now a dispute as to whether the terms of even these officials—all of them members of the Haitian Senate—may also have ended.

A consitutional catch-22

Hence the catch-22 of the status quo: elections are needed to legitimate a functioning Haitian state in accordance with the 1987 Constitution, but there is no functioning Haitian state in place to hold the elections that would legitimate that state. Add to this a climate of systemic insecurity fostered by rampant kidnapping and gang violence, the failure to institute the permanent Electoral Council that alone is authorized to oversee and sanction elections, an energy and economic crisis that continues to spiral downward, and the debilitating effects of recurring natural disasters—and you have the makings of a domestic constitutional vacuum that seems to be distinctive in the contemporary world.

Except that this vacuum is not quite so domestic, nor nearly as exceptional, once you factor in the pervasive role of the international community and the thorny question of foreign intervention. In a 2002 article, Sanford Levinson and Jack Balkin distinguished three kinds of constitutional crisis: recourse to a state of exception, excessive fidelity to a failing constitution, and struggles for power beyond the boundaries of ordinary politics. Keith Whittington distinguishes between crises of constitutional operation— "when important political disputes cannot be resolved within the existing constitutional framework"—and crises of constitutional fidelity— "when important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions." 

These typologies fall short of capturing Haiti's complex predicament insofar as they do not account for supranational factors that are usually neglected in the literature of constitutional theory. Haiti's constitutional fate has long been shaped by the legacies of colonial rule and foreign intervention, the existence of a shadow government dominated by international organizations, major foreign powers, and NGOs, and the economic marginalization of the overwhelming majority of the country's people through commercial arrangements designed to serve elite and international interests. These forces continue to constrain the options and free will of Haitian political actors. The constitutional struggle at the core of the current crisis involves all of the above. 

Domestic and international contexts

This is not to say, of course, that Haiti's political elites (including the current de facto government) bear no responsibility for the country's institutional quagmire. Haitians have the capacity to shape their own constitutional future. In so doing, they can build upon a constitutional tradition that goes back to the country's struggle for liberation from colonial slavery and Haiti's very first constitution of 1801, promulgated by Toussaint Louverture at a time when Haiti was still formally a French colony (known as Saint-Domingue). But we will not understand the character of Haiti's constitutional vacuum unless we situate it in both its domestic and international contexts.

This interdependence of the foreign and domestic also has implications for how we understand the international community's role in and towards the current constitutional crisis. The US Assistant Secretary of State for Western Hemisphere Affairs, Brian Nichols (a former ambassador to Peru and Zimbabwe), recently told The New York Times that "[w]hen we look at the history of Haiti, it is replete with the international community reaching into Haitian politics and picking winners and losers. Our goal in terms of the US government is to avoid that." 

This is a prime example of American foreign policymakers learning the right history lesson for the wrong reasons, or in the absence of a sufficiently historical context. There is no "neutral" ground on which to stand given the long history of American and other foreign intervention in Haiti's domestic affairs, going back to the very beginnings of the country's independence. As the Montana Accord signatories have argued, by continuing to support the de facto Henry government (and, before it, the disputed Moïse government), the United States is effectively picking a winner.

Given this reality, the more productive—and in some sense less "interventionist"— stance would be to ask what foreign policy approach would give Haitians the best chance to implement democratic elections. Elections are not a panacea for all that ails Haiti, and they ought not to be held as soon as possible, regardless of the costs to democratic legitimacy in a larger sense. As many Haitian observers have argued, the current security climate does not permit the holding of meaningful democratic elections. Turnout for the last two presidential elections was less than one quarter of the electorate, and that number is likely to be significantly less if elections were to be held at any time before the end of 2022. The United States and the international community should focus their efforts on lending support to a broadly (if necessarily imperfectly) representative coalition of Haitian political actors, with the goal of holding elections when the vast majority of Haitians are once again prepared to venture out into the streets again. This also means that, in the interim, the international community may well need to redouble its efforts to buttress the ability of the Haitian national police to reestablish domestic security and retake control of the country's streets and ports from the lawless rule of gang violence.

At the political level, such an approach means accepting the hard truth that continued support for the de facto government of Ariel Henry entails "neutrality" only in a superficial, increasingly counterproductive sense. The United States and the other Core Group powers would do well to put their backing behind the Montana Accord and its proposal for an interim government that can prepare the way for credible elections. And, once Haiti has begun to climb out of the constitutional void, there may well be a need to undertake some of the constitutional reforms that various political parties (including the Tèt Kale regime) have argued are necessary. This includes the lack of temporal alignment of presidential and legislative terms under the 1987 Constitution, and the need to clarify the complicated interrelationship between institutions that depend on one another for their very constitution: the legislature, the Supreme Court (Cour de Cassation), the executive, and the (still provisional) Electoral Council.

Finally, to complicate matters yet further, the international community will have to lend its weight behind those in Haiti working to confront the long-term social crisis that foments violence and instability. Instead of favoring the interests of Haiti's export-oriented business class, as it so often has in the past, the United States should devote its resources to ending the consignment of Haiti's poor urban majority to the desperation of life in the slums of Port-au-Prince, Cap Haïtien and Haiti's other major urban centers. 

Only such a two-pronged approach—supporting the cause of political dialogue at the level of political elites and civil society organizations, while also addressing the needs of the least well off—stands a chance of long-term success. The international community must be willing to walk with and in support of Haitians along both of these paths at once. The complexity of the current situation is precisely that the country's constitutional void makes it very difficult to commit the domestic and foreign institutional resources that are needed to address the plight of Haiti's poorest. That is why the political strategy is a necessary predicate and component of any meaningful international engagement. But to neglect the social crisis afflicting Haiti's least well off is to invite the cycles of instability in Haiti to persist and the pendulum of international policy to continue swinging.

In conclusion

Commentators such as Georges Fauriol and Amy Wilentz have ably analyzed the tightrope that foreign policymakers will need to walk to pull off a more productive supportive role in Haiti. I want to end with a few thoughts in the spirit of constitutional self-reflection with which I began this essay. Justice Breyer's musings about the rule of law at home and abroad seem to imply that constitutional crises are a matter of "over there" rather than here. Or was the Justice trying, to the contrary, to warn us that what happens "over there" may well happen—and in fact is already happening—over here? We need not focus our attention exclusively on the disturbing events of January 6, 2021, to appreciate this convergence. As Robert Fatton has shown, Haiti and the United States share a common predilection for the ideology of exceptionalism when it comes to constructing national narratives. 

A foreign policy informed by the sense that self-governance and the pursuit of equality has been and remains a struggle in both Haiti and the United States may go some way towards bringing about a more nuanced and constructive approach to Haiti's political crisis. And it might also help us in the United States to think a little more forthrightly about our own need for constitutional reform. The Constitution seems to carry with it (as it does in Justice Breyer's breast pocket) the status of an immaculate conception in our political culture. Haiti's constitutional crisis should also be an invitation for us to look hard at the extent to which our own institutions and traditions—the Supreme Court, the Senate, and state control of electoral policy, most conspicuously—can sometimes block the path towards more democratic governance and even send us veering frightfully close to the abyss of a constitutional void of our own.

At the same time, there is room to question the suggestion that a country like Haiti which finds itself pulled into the vortex of constitutional vacuum has only to blame its failure to accept the “rule of law.” Only the thinnest and narrowest account of Haitian history can support such a conclusion. France and the United States, in particular, have had especially important roles to play in the ups and downs of the rule of law in Haiti, and they have rarely played these roles in the spirit of a disinterested friend. It may well be too late in the day for them to play such a role now. But a more humble approach to the complicated interplay of foreign and domestic histories that go into the making and unmaking of the rule of law in Haiti is still possible, and arguably necessary, if Haiti is to achieve at last the great promise of its democratic revolution.