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Viewing cable 09PORTAUPRINCE632, HAITI: THE CASE FOR CONSTITUTIONAL REFORM

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Reference ID Created Released Classification Origin
09PORTAUPRINCE632 2009-07-08 14:33 2011-08-26 00:00 UNCLASSIFIED//FOR OFFICIAL USE ONLY Embassy Port Au Prince
VZCZCXRO0568
RR RUEHQU
DE RUEHPU #0632/01 1891433
ZNR UUUUU ZZH
R 081433Z JUL 09
FM AMEMBASSY PORT AU PRINCE
TO RUEHC/SECSTATE WASHDC 0119
INFO RUEHZH/HAITI COLLECTIVE
RHEHNSC/NSC WASHDC
RUEABND/DEA HQS WASHDC
RUMIAAA/HQ USSOUTHCOM J2 MIAMI FL
UNCLAS SECTION 01 OF 04 PORT AU PRINCE 000632 
 
SENSITIVE 
SIPDIS 
 
STATE FOR WHA/CAR 
 
E.O. 12958: N/A 
TAGS: PGOV PREL PHUM HA
SUBJECT: HAITI:  THE CASE FOR CONSTITUTIONAL REFORM 
 
1.  (U) This message is sensitive but unclassified -- please protect 
accordingly. 
 
Summary 
------- 
 
2. (SBU) Haiti's constitution has multiple flaws that hamper the 
country's governability.  Frequent national elections, an imbalance 
of power between executive and legislative branches, an unclear 
division of authority between the President and Prime Minister, and 
an overly-complicated system of local government hinder governance 
in Haiti.  There is broad agreement that the constitution needs 
reworking, but achieving a consensus will be difficult.  President 
Preval this year appointed a special commission to submit amendment 
proposals to parliament.  The constitution's procedures leave a 
short window of opportunity if amendments are to be passed that can 
take effect after Preval leaves office:  the current parliament must 
pass the amendments this year, and the next legislature which takes 
office in January 2010 must pass them again.   End Summary. 
 
Reaction to Duvalierism 
----------------------- 
 
3. (U) Haiti's current constitution was ratified in 1987, barely a 
year after Jean Claude Duvalier was forced out of office.  Its 
guiding motive was to check Haiti's strong presidentialist 
tradition, which the Duvaliers had hijacked to create a dynastic 
dictatorship.  The document's framers split the Executive in two, 
creating a President and Prime Minister.  They gave the parliament 
broad powers to check the government and President.  Frequent, 
staggered national elections force government to be accountable at 
various levels every one to two years.  Multiple layers of local 
government are meant to decentralize state power.  While Haiti's 
destructive heritage of political conflict continues to hamper 
political stability, the constitution bears significant 
responsibility for problems of governability. 
 
National Government Structure 
----------------------------- 
 
4. (SBU) The element of the 1987 constitution that has caused the 
most frictions in governance is the balance of power between the 
executive and legislative branches.  The President is limited to two 
non-consecutive terms.  The constitution gives the legislature large 
powers to check the executive.  The president nominates the Prime 
Minister, but that nominee must pass two votes in each chamber of 
parliament to be confirmed.  The President cannot dismiss the Prime 
Minister, but either chamber of Parliament may dismiss the Prime 
Minister, any other minister, or the entire government by majority 
vote.  The President has no power to dismiss the Government or any 
member thereof, or to dissolve Parliament and call new elections. 
He has no effective veto power over legislation.  Within eight 
working days of receiving a bill signed by parliament, he must 
either sign it or return it to Parliament with "objections," which 
the parliament can override by majority vote. 
 
5. (SBU) This semi-parliamentarian, semi-presidential hybrid would 
make governance difficult in even the most developed of democracies, 
but it has proved especially dysfunctional in Haiti.  It has given 
Parliament the tools to block the executive, as it did when it shot 
down two prime ministerial nominees in 2008, and held up the 2008 
budget for nearly six months in 2009.  Yet parliamentarians' 
generally low level of education and political skill leaves their 
institution weak and its members focused on posturing to their 
constituencies - as we observe in the current minimum wage dispute, 
one of the few recent cases where parliament has used its power of 
legislative initiative.  Thus, this constitution has not cured Haiti 
of its tradition of presidentialism Qumping the legislature.  All 
but a handful of bills the legislature considers are drafted and 
submitted by the Presidency.  Preval (or any other President) can 
"end run" Parliament by 1) buying off Deputies and Senators, or 2) 
delaying elections to weaken or effectively dissolve the legislature 
when terms run out so that the President can rule by decree, as 
Preval did during his first term. 
 
Divided Executive Power 
----------------------- 
 
6. (SBU) Haiti never had a Prime Minister under previous 
constitutions:  all executive power was held by the President.  The 
1987 framers wrote the office of Prime Minister into the 
constitution as another strategy to check the excessive powers of 
the President.  Yet they failed to give the Prime Minister adequate 
power.  The current arrangement is not a traditional division 
between head of government and a ceremonial head of state:  the 
President shares executive power with the Prime Minister.  The 
constitution makes the Government responsible for the execution of 
 
PORT AU PR 00000632  002 OF 004 
 
 
all laws, and says that the Government "carries out national 
policy."  The President, however, "presides" over the Council of 
Ministers.  The President and Prime Minister jointly choose the 
ministers of government, and are jointly responsible for national 
defense.  The constitution makes the President ultimately 
responsible for the government and all public officials.  While the 
division of powers is vague, the balance in practice has favored the 
President. 
 
7. (SBU) The result has been a Prime Minister hemmed in by 
presidential interference and unable to effectively lead the 
government.  President Preval in his second term has given his Prime 
Ministers very limited say in selecting cabinet ministers, making 
ministers effectively responsible to him.  The constitution 
theoretically allows a strong President to lead the government. 
However, Preval has not tried to do so, but has continuously 
intervened in minute ministerial details.  His management style, 
exercised within this clumsy constitutional arrangement, has left 
the government with no clearly defined leader. 
 
Too Frequent Elections 
---------------------- 
 
8. (SBU) The final major issue of national government is the 
complicated cycle of national elections caused by differing term 
lengths of elected legislative and executive officials.  The 
President is elected for five years, mayors and municipal 
legislators for four, national legislators for four, and Senators 
for six - with one-third of the Senate renewed every two years. 
This makes for national elections every one to two years.  The cost 
(over USD 15 million for this year's partial Senate elections), the 
organizational weakness of Haiti's electoral authority, and the 
fragility of Haiti's political fabric in the face of elections' 
divisiveness have made frequent elections too large a load for this 
body politic to bear, and too expensive for the state without 
significant international donor financing. 
 
Intricate System of Local Government 
------------------------------------ 
 
9. (SBU) The final piece of state architecture that many want to 
amend is the multi-tiered system of local government that is too 
complicated and expensive for a state as poor and small as Haiti. 
Municipalities are broken down into "communal sections," each with 
an elected legislative assembly and executive council.  Each 
municipality has an elected assembly and an elected mayor and two 
deputy mayors.  All the municipal assemblies in a department elect 
one of their members to sit in a departmental assembly, which in 
turn elects a departmental council.  A "delegate" appointed by the 
President assists in the governing of the Department.  Each 
Departmental Council selects one of its members to an 
"Interdepartmental Council" which sits with the Cabinet of Minister 
to decide on development and local government issues.  The 
Departmental Councils are also empowered to present nominees for the 
Permanent Electoral Council, from which list the President, 
Parliament and Supreme Court select the final members. 
 
10. (SBU) In the more than 22 years this constitution has been in 
force, none of the local government institutions above the level of 
the municipality has been established.  No legislation defining 
local government's powers, especially the power of taxation, has 
been passed.  (Note:  A bill defining the modalities and powers of 
local government - the "decentralization" bill - has been submitted 
to parliament, but we anticipate there will be protracted debate in 
parliament and civil society before the bill is passed. End note) 
The result is stunted and underfinanced local government starved for 
funds by the central government.  Presidents have been loath to 
encumber the government with an Interdepartmental Council.  Failure 
to hold indirect elections to Departmental Assemblies and Councils 
has deprived Haiti of the stabilizing influence of an independent 
electoral authority in the form of a Permanent Electoral Council 
(CEP).  (Note:  It is also the case that the CEP is accountable to 
no one.  Its decisions cannot be appealed.  This is also true of the 
number of provisional CEPs that presidents have appointed since 
1987.  End note)  The Sectional assemblies and councils have little 
power.  Municipalities suffer from the triumvirate system of mayors. 
 Any constitutional reform of local government will likely reduce 
the number of layers, possibly by eliminating communal sections, 
departmental assemblies and councils, and the Interdepartmental 
Council. 
 
Dual Nationality 
---------------- 
 
11. (SBU) There is nearly universal agreement that the ban on dual 
nationality imposed by article 15, and the automatic loss of Haitian 
nationality upon acquiring foreign citizenship imposed by article 
 
PORT AU PR 00000632  003 OF 004 
 
 
13, must both be changed.  Successive waves of emigration for 
economic and political reasons have marked Haitian history since at 
least WWII.  The ranks of Haiti's middle and upper classes - 
including elected and appointed officials - are larded with foreign 
passport (and permanent residency) holders who acquired foreign 
nationalities when they studied or worked abroad, many of them after 
fleeing the Duvalier regime.  While the government lacks the 
capacity to monitor its citizens to enforce these citizenship 
provisions, foreign passport holders must keep their foreign 
nationality secret to avoid losing their Haitian citizenship.  There 
is also broad agreement that the ban on dual nationality deters the 
large Haitian diaspora, especially the large middle class of 
professionals - from returning to Haiti and investing in and 
contributing to the country's development. 
 
12. (SBU) On the other hand, Haitians harbor a suspicion of foreign 
influence in their national life, especially in politics.  This is 
the source of the constitutional provision that requires that all 
national legislators, executive branch officials, and judges be 
Haitian "by origin," i.e., that they be born of Haitian citizen 
parents and grandparents all born in Haiti who never lost their 
citizenship.  Haiti's unreliable birth records - especially prior to 
the early 20th century - have made this provision a handy tool for 
Parliament to shoot down presidential nominees for Prime Minister. 
Relaxing this strict requirement would force parliamentary 
confirmation of PM nominees onto the political plane where it 
belongs.  While there is broad agreement that the ban on dual 
nationality should be lifted, many political leaders believe that 
foreign nationality and long periods of foreign residence should 
disqualify a person from holding high public office. 
 
A Constitutional Court? 
----------------------- 
 
14. Although article 183 of the constitution empowers the High Court 
of Appeals (Cour de Cassation) to rule on the constitutionality of 
laws, it has rarely if ever done so.  Constitutional experts believe 
Haiti requires an independent Constitutional Court with the power of 
judicial review of laws to determine their constitutionality. 
 
The Armed Forces 
---------------- 
 
15. (SBU) The 1987 constitution sets down terms and responsibilities 
of the "armed forces" of Haiti, including army, navy and air force. 
President Aristide disbanded the armed forces in 1995.  There is 
strong sentiment in this country that Haiti should reestablish its 
national armed forces, or at least a security force such as a 
gendarmerie.  Constitutional reform will not settle that question, 
but could amend articles intended to place the armed forces beyond 
political interference but also potentially placing them beyond 
civilian control.  For example, the constitution allows the armed 
forces to set their own terms of recruitment, promotion, and 
retirement; requires their consent to all dismissals, suspensions 
and early retirements; and gives the armed forces exclusive 
authority over the manufacture, import, export and use of weapons 
and materials of war. 
 
Amending the Constitution a Presidential Priority 
--------------------------------------------- ---- 
 
16. (SBU) The weaknesses of the 1987 constitution have long been 
debated, but President Rene Preval forced constitutional reform onto 
the political agenda.  He shocked Haiti's political world on 
Dessalines Day in October 2007 when he named Haiti's 1987 
constitution the major source of Haiti's political instability.  He 
then floated a plan to call a moratorium on elections and use that 
time to devise a new constitution.  Strong international community 
resistance dissuaded Preval from pursuing this plan. 
 
17. (SBU) Preval nevertheless has held firm to his plan to amend the 
constitution, while remaining flexible as to how.  In a 2008 press 
interview in the Dominican Republic and in a subsequent private 
meeting with diplomats, the President rejected using the 
constitution's own provisions, and implied he wanted to write an 
entirely new constitution.  Preval then changed his mind.  Last 
February 19, he appointed a "Working Group on the 1987 Constitution" 
to draft recommendations for the President on constitutional reform. 
 Embassy sources report that Preval overruled a commission vote in 
favor of recommending drawing up a new constitution, and ordered 
this body to deliberate on amendments to the 1987 constitution. 
Preval has acknowledged privately that many suspect his motives for 
supporting constitutional amendment, believing he wants to follow 
the example of Hugo Chavez and other populist Latin American 
presidents and allow himself a third term.  He insists this is not 
the case. 
 
 
PORT AU PR 00000632  004 OF 004 
 
 
18. (SBU) The working group is led by constitutional scholar and "Le 
Matin" chief editor Claude Moise.  Moise's committee is holding 
public meetings in Haiti's regions to discuss constitutional reform 
with representatives of local government, trade unions, the 
judiciary, primary and secondary education, and civil society 
groups.  They plan to meet with the diaspora in Miami and New York. 
Their mandate is to produce a report to the President by this month 
with recommendations for constitutional reform.  Palace sources say 
the report will be formally released July 10.  Based on the Working 
Group's recommendations, a yet-to-be-appointed board of 
constitutional experts will draft specific articles of amendment. 
 
Prospects for Constitutional Reform 
----------------------------------- 
 
19. (SBU) Preval's 2008 comments and his appointment of a commission 
on constitutional reform have sparked little public debate. 
"Fusion" is the only party to have taken a stand:  it issued a 
position paper in January which highlights some hurdles ahead for 
Preval's constitutional reform project.  The paper predicts there is 
broad agreement for 1) accepting dual nationality except for high 
office-holders, 2) for holding national elections every four years 
by reducing the President's term to four years and increasing that 
of Senators to eight, with half the Senate renewed at every 
election, and 3) for creating a constitutional court.  It also 
proposes that the PM require only one vote for confirmation in 
office, when he/she presents the government for the first time.  The 
paper suggests that the structure of local government should be 
simplified, and says this should be taken out of the constitution 
and left to legislation. 
 
20. (SBU) On the other hand, "Fusion" lays down a series of 
"untouchable" principles, principles that reflect Haitian democrats' 
continuing fear of Executive abuse of power.  Their position paper 
rejects any change that would 1) reduce the power of parliament, 2) 
allow the President to dissolve parliament, 3) eliminate the split 
of the Executive Branch into a President and Prime Minister, or 4) 
allow the President more than two non-consecutive terms.  The first 
three of these principles go to the heart of how the current 
constitution hampers governability.  Embassy believes that achieving 
parliamentary consensus on amending any of these "Fusion" redlines 
would be difficult. 
 
21. (SBU) The window of opportunity for passing amendments that can 
take effect when Preval leaves office is closing fast. 
Constitutional amendments must be passed by 2/3 vote in both houses 
of two consecutive legislatures, and cannot take effect until the 
next President takes office.  Thus, the current legislature 
(fortified by newly elected Senators who should take office 
early-mid July) must pass the amendments by the end of the current 
session in mid-September - or by the end of the year should the 
President convoke the parliament into special session.  If the 
November 2009 legislative elections (for the entire Chamber of 
Deputies and one-third of the Senate) are delayed, which is highly 
likely, that deadline would extend to May 2010.  (The 2008 electoral 
law extends deputies' mandates to that date if elections are held 
late.)  The next legislature must then pass the amendments in 
exactly the same language.  The amendments would take effect after 
Preval's successor is sworn in, in February 2011.  If Haiti misses 
this window of opportunity, the next chance amendments could take 
effect would be after the inauguration of the following President, 
in February 2016. 
 
Comment: What/Whom to Blame for Haiti's Political Dysfunction? 
--------------------------------------------- ---- 
 
22. (SBU) Preval's blaming Haiti's post-Duvalier political 
instability on the constitution was an exaggeration designed to 
deflect responsibility from Haiti's leaders, including himself. 
Destructive political habits have hindered the formation of 
statesmanlike leaders and strong institutions.  Political culture 
and institutional weakness more than the current constitution are at 
the root of Haiti's political instability.  A better constitution 
will not cure these ills.  But clearer and more balanced lines of 
authority would remove certain barriers to more productive relations 
between the Legislative and Executive branches, and allow the 
Government to govern with less presidential interference.  A 
consolidated elections calendar would make elections more affordable 
and reduce the vulnerability of Haiti's fragile body politic to 
divisiveness of campaigning.  A simplified architecture and greater 
taxation powers could make local government capable and accountable. 
 More generous citizenship provisions could entice some of the 
Haitian diaspora to invest money and talent back into their country 
of origin. 
 
TIGHE