Gaël Pétillon*

Versión en español aquí. 

According to the Haitian Constitution, the legislative, executive, and judicial powers constitute the essential foundation on which the State’s organization is based. Within the exercise of their respective powers, duties, and functions, they are entirely independent. However, since January 2020, the failure to hold legislative elections has resulted in a gradual deterioration of this branch of power, the mandate of all deputies and two thirds of the senate having ended. The assassination of President Jovenel Moïse on the night of July 6^th to 7^th, as well as the death of the President of the Court of Cassation have worsened the situation from an institutional standpoint. This situation has exacerbated the dysfunction of the three branches: the National Assembly and the Superior Council of the Judiciary (Conseil Supérieur du Pouvoir Judiciaire – CSPJ) are now null, while the executive struggles to lead the nation effectively. An institutional vacuum is being created on top of the political and health crisis. Moreover, the recent earthquake of August 14, 2021 generated additional urgent needs, further exacerbating the aforementioned shortcomings and suggesting an upcoming deterioration of the human rights situation in Haiti.

The Recurrence of Violent Acts

For more than two years, Haitians have been facing an increase in organized banditry, with armed groups being present in several neighbourhoods of the capital and other provincial towns. This banditry has resulted in numerous gross human rights violations, including massacres, kidnappings, rapes, and street assassinations. Some neighbourhoods, under the control of armed groups who regularly clash to gain more territory, are left to their own devices, the bandits having driven the police away from precincts.

The proliferation of these groups and the recurrence of violent clashes have led to the displacement of nearly ten thousand Haitians, particularly affecting populations in vulnerable situations such as women, children, people living in poverty, as well as those living with disabilities. Typically living in makeshift shelters, these internally displaced people are subject to all kinds of human rights violations. When fleeing their homes, women and girls are particularly vulnerable to gender-based violence, including but not limited to sexual violence.

A Dysfunctional Judicial System

The Haitian judicial system is made up of 18 jurisdictions. Over the past two years, in addition to the insecurity which hinders the judges’ ability to perform their duties, the courts are often paralyzed due to strikes observed by various justice-system actors demanding better working conditions or protesting decisions made by the executive power.

In prisons, the number of people in abusive pre-trial detention^[1] continues to increase. As of May 31, 2021, out of 11,500 detainees, 9,424 were in abusive pre-trial detention, including 400 women and 22 girls. According to a report on detention conditions in Haiti by the Office of the High Commissioner for Human Rights (OHCHR) and the United Nations Integrated Office in Haiti (BINUH), these people are subject to numerous abuses and mistreatment, notably jeopardizing the enjoyment of their rights to health, leisure, and wholesome food. Deprived of their rights to liberty, security, and dignity, they fall victim of violations of their rights and judicial guarantees, such as those recognized byarticles 9, 10 and 14 of the International Covenant on Civil and Political Rights (ICCPR), as well as articles 5, 7, 8, and 25 of the American Convention on Human Rights.

Currently, the Court of Cassation – the highest court of justice of the country – as well as the CSPJ are also dysfunctional^[2]. On July 2^nd, the three-year term of its members came to an end, with the appointment of a new council deadlocked due to the presidential vacancy.

The results of the 2020-2021 judicial year, which ended on July 31st, are mixed. Many hearings were postponed sine die. Moreover, due to armed groups occupying the Bicentenaire District, seat of the Civil Court of Port-au-Prince, justice-system actors such as lawyers and judges cannot perform their duties as intended.

In addition to administrative challenges, several cases of corruption have been reported during the past two years. Moreover, in October 2020, the CSPJ dismissed a dozen judges involved in acts deemed reprehensible^[3]. Amongst other things, they were accused of ransoming litigants, forgery and use of forged documents, corruption, and lack of moral integrity. In the opinion of former President of the Bar Association of Port-au-Prince^[4], Stanley Gaston, the fight against corruption in Haiti will not be able to bear fruit as long as impunity persists, and justice is not restructured.

Impunity, Corruption, and Other Obstacles to the Enjoyment of Human Rights in Haiti

The fight against impunity is one of the greatest challenges faced by Haiti. The population, in particular the families of victims of the insecurity affecting low-income neighbourhoods, are still waiting for justice to be served, and the victims of totalitarian regimes, including that of Duvalier, continue to demand justice. It is essential that the truth about the crimes of the past be established, and that the victims’ sufferings are recognized and adequately addressed.

The state must therefore ensure that it complies with its obligations in order to ensure the enjoyment of its citizens fundamental rights, notably those to life and security, but also to effective remedy and reparation. In this sense, it has a duty to investigate and take appropriate measures against those responsible where necessary, as well as provide the justice system with the necessary means to carry out its functions effectively. However, a month after the assassination of the President of the Republic and a year after that of the President of the Bar Association of Port-au-Prince, Monferrier Dorval, Haitian justice is still struggling to recover while the population continues to demand justice.

This quest for justice and truth has also led Haitian civil society to mobilize massively in the streets over the past two years to demand lasting and structural democratic changes. The civil society, rich in skills and resilience, keeps courageously leading the fight for human rights, particularly the youth, who stood up against corruption in the Petrocaribe^[5] scandal that involved the theft of billions of dollars in public funds.

Making the Rule of Law the Top Priority

The assassination of President Moïse is a striking illustration of the problems affecting Haiti. There will be solutions to these problems only if the strengthening of justice and the fight against impunity and corruption become absolute priorities, and if those priorities are transformed into concrete actions so that such acts never happen again. It is also a necessary condition for worthy progress in the fields of education, health, housing, food, social and economic development, etc. Justice, the rule of law, security, and development are inextricably linked. Without a solid rule of law and an effective justice system, neither security nor development can be fully realized. The country needs strong and independent institutions led by women and men of integrity.

Other countries have been through similar situations and decided to act by developing mechanisms adapted to their realities. Building on the complementary strengths of national prosecutors and judges allied to international colleagues, they have undertaken investigations uncovering the corrupt and corrupters, brought them to justice and sentenced them accordingly, proving that change is indeed possible. This was namely the case of the International Commission Against Impunity in Guatemala and the Mission to Support the Fight against Corruption and Impunity in Honduras.

These comparative experiences teach us the importance of implementing mechanisms developed by and for Haitians and adapted to the context. The population has also massively – and peacefully – taken to the streets to demand innovative actions to prevent and fight against corruption.

Recently, the government and the Office for the Protection of the Citizen (OPC) – an independent, state-mandated institution for the protection and promotion of human rights  – requested the establishment of an international commission of inquiry to shed light on the assassination of former President Moïse. Said commission should not supersede national institutions but should instead support them in their quest for justice and could also be used to shed light on other cases of human rights violations. It is worth noting that advocacy efforts have also been led by several national and international bar associations as well as Lawyers Without Borders Canada asking the former president to establish such a commission in the context of the assassination of the President of the Bar Association of Port-au-Prince, Me Monferrier Dorval.

Haiti is not perpetually destined to sail from one crisis to the next. Violence, insecurity, corruption, and impunity are not inevitable. Haitian civil society is already tackling these issues, and this movement can be amplified and strengthened through capacity building. The international community can support these movements by encouraging Haitians in their quest to establish a genuine mechanism aimed at fighting against impunity in all its forms.

In the darkness of the events that occurred in the past two years, there is still a glimmer of hope for change. It is now up to all of us to support Haitians in their efforts to make it brighter^[6].

^[1] OHCHR and BINUH, Rapport sur les conditions de détention en Haïti (June, 2021), p. 7.

^[2] The CSPJ is the administrative, control, disciplinary and deliberation body of the judicial branch of power. It was created in 2007 to ensure the independence of said branch. See: Le Moniteur (December 20, 2007).

^[3] Le National,19 juges exclus du système judiciaire par le CSPJ (November 30, 2020).

^[4] Metropole, L’appareil judiciaire est gangrené par la Corruption révèle le bâtonnier (October 3, 2018).

^[5] The Petrocaribe agreement of October 2007 allowed the Haitian state to benefit from payment facilities for the purchase of gasoline, diesel, kerosene, fuel oil and asphalt from Venezuela, who has been the main supplier to the local market in Haiti for over 20 years. See : Bureau de Monétisation d’Aide au Développement, Le Fonds PetroCaribe.

^[6]  I would like to sincerely thank my colleagues Taïna Noster, Stéphanie Day-Cayer, Jodherson Cadet, Emilie Simard, and Richard Gorman for their important contribution in the preparation of this article.  

* Country Director for Lawyers without Borders Canada

Photo: AP Photo/Matias Delacroix