Text and context of Haiti’s 2021 draft constitution

In February 2021, the Independent Consultative Committee – set up by the Haitian government – published a new draft constitution for public discussion. The draft constitution introduces several innovations, such as extending political rights to the Haitian diaspora. The new constitution, which would replace the 1987 Constitution, also proposes structural overhaul, including establishing the office of vice president (abolishing that of prime minister) and instituting a unicameral legislature. The Haitian government plans to organize a referendum on the draft constitution to take place on 27 June 2021 – writes Clément Jude Charles.

Background

Once again, Haiti is on the way to a new constitution. The ongoing constitutional reform process initiated by the government in 2020 does not enjoy unanimous support, even if all actors recognize the need to make considerable changes to the 1987 constitution. Nevertheless, the Haitian government is pushing ahead with constitutional reform and the Independent Consultative Committee responsible for drafting the new constitution published the draft in early February 2021 for public discussion.

The constitutional reform process is juxtaposed against a political crisis that has both structural and cyclical factors.

The constitutional reform process is juxtaposed against a political crisis that has both structural and cyclical factors. The central crisis concerns the term limit of President Jovenel Moïse, who has been ruling by decree for over a year following the dissolution of parliament at the end of its term. President Moïse was sworn into office on 7 February 2017 after the tumultuous 2015–2016 presidential elections, and insists that his five-year term runs until 7 February 2022. The opposition contends that, according to the 1987 Constitution, President Moïse’s term started on 7 February 2016, when former president Michel Martelly stepped down after which an interim president took office. It is in this context that Independent Consultative Committee responsible for drawing up the new constitution published its text.

This piece illuminates the main proposed changes in the new draft through the lens of Haitian constitutional tradition. It reviews the impact of the proposed changes on the political regime in Haiti and the position of the diverse stakeholders. Finally, it identifies the prospects for constitutional reform and suggests appropriate conclusions and recommendations.

Main changes in the draft constitution 

The draft constitution contains many novelties and differs greatly in many areas from the 1987 constitution. It comprises a total of 282 articles and deals with various issues relating to rights and freedoms, decentralization, certain state institutions, and the political regime. In the preamble, the Committee maintains that the draft responds to three main concerns: the optimal mobilization of all resources; the effectiveness of state powers; and the fight against impunity.

One of the great novelties of this draft relates to citizenship and the diaspora (Art. 11). The primordial question throughout Haitian history has been: Who is a Haitian? And who isn’t? The 1987 Constitution contained many restrictions for Haitians naturalized in foreign lands. The draft constitution proposes to grant Haitians living abroad the right to vote in elections and run as candidates (even as deputy and mayoral candidates, if one has “habitual residence” in Haiti). In addition, the Haitian diaspora will have the right to appoint representatives to the legislative body (not less than 5% of the total number of seats) (Art.100).

The draft constitution proposes important changes to the structure of the government.

The draft constitution proposes important changes to the structure of the government. The new text implicitly abolishes the Senate (Art. 99), meaning Haiti would have a unicameral legislature elected every five years. The Haitian Senate is a 215-year-old institution and has seen many upheavals throughout history. Considered budget-consuming – the 2018-2019 legal budget allocated nearly 2% for 30 senators – inefficient, and plagued with political issues, its efficacy has been questioned by many.

The adoption of this new constitutional text implicitly would also end the position of prime minister and create instead the office of vice president, who would be elected at the same time as the president (Art. 134). The prime minister’s office, which emerged with the 1987 constitution, was a departure from Haitian political mores anchored in and accustomed to a strong presidential system. The dual executive was often a source of political conflict, with the president suspicious of his prime minister and the latter seeing himself as a president in the making.

The establishment of a vice-presidency can be seen as an alignment with Latin American political regimes.

The absence of a prime minister and the abolition of the Senate could allow a president to start working the day after taking office. Thus, he would be spared the long process of appointing the prime minister. The establishment of a vice-presidency can be seen as an alignment with Latin American political regimes. On the American continent, until now, only the countries of the Commonwealth have a prime minister.

Other new aspects in the draft text include: the pursuit of equality between men and women (Art. 16); the uninominal ballot for all elected positions; the limit of the president to two presidential terms (Art. 136); the ineligibility of the president in office at the time of the referendum to run for the first presidential election under the terms of the new constitution (Art. 271); the requirement that constitutional amendments need approval in the legislature and then in a referendum, rather than in two votes in the legislature before and after general elections, as provided for by the 1987 Constitution; the harmonization of all political mandates for a period of five years, thus ensuring concurrent elections; and mandatory military and/or civic service for all 18-year-olds (Art. 90).

Depending on the angle of analysis, some new provisions may be considered progressive, others regressive. What is certain, however, is that there would be a new dynamic in Haitian governance in case this new Constitution is adopted.

The position of the actors in relation to the constitutional reform

As noted above, the political and constitutional crisis worsened on 7 February 2021 when the parties re-entrenched their positions: while the government states its mandate lasts until 7 February 2022, the opposition considers that the mandate of the President expired on 7 February 2021 under article 134-2. The focus on the presidential mandate has limited much needed substantive debate on the proprieties of the proposed changes and on common positions. The opposition’s viewpoint is reinforced by the Superior Council of the Judiciary, which ruled on 6 February that President Moïse’s term had ended, and by key civil society organizations. The Haitian Bishops' Conference, the Protestant Federation of Haiti and the Federation of Haitian Bars concur that the president’s term ended on 7 February 2021. On February 8, the Haitian opposition appointed Court of Cassation Judge Joseph Mécènes Jean-Louis as Interim President, and one day later President Moïse issued a decree retiring Jean-Louis and two other Judges in contravention of the constitutional procedure for judicial removal, plunging the parties to the dispute into a deeper quagmire.

But the Haitian crisis is becoming more international. Since the election of Joe Biden, the major international media have put their spotlight on Haiti. U.S. Lawmakers are also involved, and members of the powerful Foreign Affairs Committee of the US Congress have bluntly taken a stand for the end of President Jovenel Moïse’s term and the establishment of a transitional government. The American academic world has spoken as well. Three university law school clinics – at Harvard Law School, NYU School of Law, and Yale Law School – issued a statement calling on the US government to “condemn Moïse’s attacks against Haiti’s constitutional institutions.”

Nevertheless, at this stage of the crisis, preparations continue for the constitutional referendum.

The process of constitutional reform

The constitutional reform process is carried out in two steps: the first consists of the revision of the text of the preliminary draft based on the outcomes of the public discussions, and the second stage will be a referendum to confirm or reject the new constitution.

Many political and civil society actors do not want to legitimize the text and therewith the executive by engaging in debate and discussion around the new constitutional draft. 

At this stage, the draft text has been published, and a three-week process of public consultations, with political actors and civil society, is about to finish. But, as has been pointed out previously, many political and civil society actors do not want to legitimize the text and therewith the executive by engaging in debate and discussion around the new constitutional draft. Regardless, the government is committed to the referendum and steps are already being taken to achieve it. In the calendar published by the government, the date has been set for 27 June 2021.

Concluding remarks

The draft constitution was published at a time when a salient and pressing constitutional dispute is ongoing and seems to be far from resolved. The Constitutional Court, the only body empowered to rule on questions of constitutional law, exists in the 1987 constitution, but has not yet been established. So, while the adoption of this new constitutional text would bring important and far-reaching changes and will undoubtedly solve certain technical problems, it will leave the fundamental political and social problems intact. As the famous Haitian constitutionalist, Claude Moïse wrote: “Far from being a legal ranting, the constitutional problem emerges with the formation of the independent State of Haiti, as the foundation and necessity of legitimizing the powers of the ruling classes.”  

That being said, the success of any constitutional reform ultimately lies in commitment and compromise between those in power, other political actors, and Haitian civil society, as articulated in my previous article on this topic. In his latest report on Haiti, the Secretary-General of the United Nations goes in the same direction. Before the UN Security Council on 11 February he argued that, in Haiti, “A minimum consensus among political stakeholders could contribute to a successful constitutional reform process.” Without such consensus, the referendum could further exacerbate the political crisis and stain the legitimacy of the new constitutional framework.

Clément Jude Charles is a manager and lawyer and member of the Port-au-Prince Bar.