‘A Cycle of Instability’: Haiti’s Constitutional Crisis

A version of this article was initially published by Chatham House on February 5, 2021.

The international community should urgently take note of the situation in Haiti.

The convoluted backdrop to the crisis is another example of Haiti’s chronic inability to resolve its political conflicts. The dispute revolves around how to account for a lost year between the annulled October 25, 2015 elections and the makeup elections held on November 20, 2016.

President Jovenel Moïse was not inaugurated until February 2017 because his predecessor (and mentor), Michel Martelly, ended his term without holding elections for his own succession. Instead, an interim government led by the head of the Senate (Jocelerme Privert), in a procedure whose legality has been questioned, governed from February 2016 to February 2017. Moïse’s 2016 election win was not certified until January 2, 2017, and Privert did not conclude his interim presidency until February 7, 2017.

The dispute not only remained unresolved but was then compounded by the Moïse government postponing the October 2019 parliamentary and local elections—arguably due to the government’s own deliberate irresponsibility. With no functioning parliamentary quorum (let alone elected mayors and other local officials), Moïse has transitioned since February 7, 2020 to governing by decree.

A Political Parallel Universe

What has emerged since is an increasingly autocratic presidency, gradually operating in a political parallel universe—although so far without effective resistance. It has succeeded in the short run to placate an inattentive international community, as well as Moïse’s discordant domestic political opponents. Building on earlier months-long cycles of sometimes violent anti-government demonstrations and calls for Moïse’s removal, appeals for political mobilization have so far fizzled.

Cumulatively, this has provided Moïse political space for the government to cobble together a credible-sounding constitutional and electoral reform program. Not entirely unreasonably, what the government is arguing is that the 1987 constitution’s imbalance between the executive and legislative branches creates endless dysfunction, leading to revolving-door prime ministers and presidents governing by decree.

Unfortunately, this conveniently rationalizes the fallout from Moïse’s poor governance and that of most of his predecessors under the 1987 constitution. What admittedly may be a necessary constitutional reform that extends the end of Moïse’s term to February 7, 2022 benefits the president, though the brewing social and political turmoil may undermine that.

The Need for Constitutional Reform

If the debate over the start and end of the presidential term draws attention to the genuine need for reform of Haiti’s constitutional process, it also underscores the artificiality of the government’s approach to do so. Without any credible public consultation process, a core coterie of associates around the president and his prime minister (Joseph Jouthe—appointed in March 2020 with no parliamentary ratification) has set in motion institutional and political reform processes.

These include a plan to reconstitute the electoral machinery (notably the provisional electoral council—CEP, provisional or never made permanent since 1987), move forward a constitutional reform process and referendum on the revised national charter, and hold national elections in the autumn of 2021 with a new government under a newly revised constitution transition on February 7, 2022.

This is all overly ambitious if not unrealistic. A mischievously titled article from Haiti’s ambassador to the United States (and former foreign minister), Bocchit Edmond, appearing after the January assault on the U.S. Capitol in Washington, “Watching America’s Democracy from Haiti,” revealed the core intent of the government’s reform plan: to strengthen the executive branch (in effect, the presidency) so that a “small minority in the legislative will not be able to stall the political process.”

It is true that the Haitian Parliament has not been a paragon of productive legislative outcomes. But in a country with a history of harsh, centralized, and authoritarian leadership, strengthening the presidency is hardly a reassuring principle.

A Machinery of Information and Surveillance

The real operational challenge of the 1987 constitution lies in part on a misguided adaptation of the French 5th Republic (de Gaulle) constitution with a strong president and a prime minister as head of government, but answerable to a majority in parliament. For this to work requires a legislative strategy on the part of the government, a concept that has been essentially absent from Haiti since 1987.

The Moïse government has also tipped its hand in other ways. The most alarming may be a set of decrees nominally addressing legitimate concerns with growing public insecurity but suggesting instead an iron fist. This includes the November 26, 2020 decree establishing a national intelligence agency (Agence Nationale d'Intelligence, ANI), and a more nebulous companion decree related to the reinforcement of public security.

The ANI sets up a machinery of information and surveillance mostly tipped to provide reporting to the presidency and tramples over existing mechanisms among civilian law enforcement agencies and the resurrected military structure. The somewhat unreal tone of this 24-page decree alludes to an administrative and communications machinery, let alone its technological underpinnings, that do not match Haitian reality. Diverting scarce resources to alter that reality to achieve the ANI’s goals is a dubious national objective.

International Attention on Haiti

These and related actions of the Moïse government prodded the international support group in Haiti (the European Union, France, Germany, Spain; the United States; Canada; Brazil; and representatives from the Organization of American States and United Nations) out of its inertia to express its “concerns.” Likewise, the growing scale of organized gang violence particularly around Port-au-Prince, some of it politically funded and linked, is also drawing international attention.

For example, the assassination last August of the head of the Port-au-Prince bar association and well-known constitutional law expert Monferrier Dorval continues to draw condemnation. Probes appear to point to both police and judicial collusion as well as glaring incompetence.

Haiti’s quickening spiral of instability is catching the attention of the U.S. congressional community, notably the new leadership in the House Foreign Affairs Committee and a Democratic Senate. Having gotten what amounts to a pass with the previous White House, the Biden administration is likely to be more aggressive regarding Haiti’s descent into autocratic governance and potential turmoil.

Breaking the Cycle of Instability and Political Violence

The weakest links in the government’s constitutional reform plan lie in the absence of a serious effort toward national dialogue and consensus building. The independent advisory committee mechanism designed to shape a constitutional reform process is opaque and partisan. A proposed draft constitution, issued February 2, 2021, opens a 20-day public consultation process and a referendum on April 25—all suggesting a suspiciously short timetable. The steps taken to reconstitute the CEP were unilaterally taken by the Moïse government outside of the (admittedly laborious) procedures to do so—leaving its legality in limbo.

This potentially plants the seeds of another crisis over the president’s legitimacy in the future. The notion of a referendum to approve a new constitution also does not square with mechanisms outlined in the constitution.

Although the United Nations, and to a degree the Organization of American States, are gearing up to support Haiti’s elections, the scale of what is envisioned—a constitutional referendum and elections for all elected positions in the country—will tax the government’s shaky electoral machinery (and poor past record in using international financial and technical assistance). The latter will also have to overcome the obstacles of holding elections in the midst of a pandemic while also dealing with organized and politically connected gang violence and worsening socioeconomic conditions. 

Breaking the cycle of instability and political violence and stopping governance dysfunction are foundational concepts that a credible national dialogue can built from. Without it, the needed constitutional reforms process is not politically viable. A sustainable national dialogue shifts some of the burden to civil society and the political community—something the government should welcome if it is sincere in its pursuit of a reform process.

The semblance of national unity dialogues that emerged in the wake of the 2019 anti-government demonstrations allude to the kind of creative efforts that are necessary, but obviously more is required. A national dialogue needs to be an entirely Haitian political process and a potential role for Haiti’s extensive diaspora should therefore not be overlooked. Likewise, there may be space for domestic and international actors acting as intermediaries to facilitate the dialogue. What everyone should agree on is the need to grasp Haiti’s current worsening reality.

Georges Fauriol is a senior associate (non-resident) with the Americas Program at the Center for Strategic and International Studies in Washington, D.C.

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