Mission Report, Haiti 2005

At the invitation of the United Nations Stabilization Mission in Haiti (MINUSTAH), a delegation from ILAC visited Haiti in January, 2005, in order to conduct an assessment of the Haitian judicial system. The mission report is available in English and French.

EXECUTIVE SUMMARY

At the request of the Principal Deputy-Special Representative of the Secretary-General (DSRSG) for the United Nations Stabilization Mission in Haiti (MINUSTAH), Hocine Medili, the International Legal Assistance Consortium (ILAC) conducted a post-conflict assessment of the Haitian judicial system. This Report summarises ILAC’s findings. In accordance with the terms of reference provided by the DSRSG and the Interim Cooperation Framework (ICF), this Report makes recommendations for sustainable short-term projects to support the reform of Haiti’s legal system during the interim period.

Haiti has been independent since 1804, when the outcome of the revolution for national liberation ended slavery. The 1987 Constitution established Haiti as a republic that is governed by an elected president and a two-chamber parliament. The Constitution guarantees the right to a just and public trial. The legal system is a civil law system, based on the Napoleonic Code. The inauguration in 1991 of the first democratically elected President, Jean-Bertrand Aristide, created tremendous hope and expectations among Haitians. Instead, what followed was a decade of political and economic turmoil. Dysfunctional institutions, poor and corrupt governance, lack of transparency, and pervasive crime have intensified economic and social instability for the last decade. The working language is French, although the majority of citizens speak only Haitian Creole.
There are two parallel societies existing within Haiti. A small elite of families with mixed African/European/Middle Eastern backgrounds which constitute less than 5 percent of the population and control most of Haiti’s formal wealth and a large majority of black Haitian families that live in poverty. Class and racial exclusivity lead to systemic discrimination against the majority through the denial of economic, social, and cultural rights, particularly to education, job opportunities, and health care. A small percentage of the elite are working toward sustainable reform but they don’t seem to have the support of the general Haitian population.
It is estimated that two thirds of the 8 million Haitians live under the poverty threshold. The life expectancy is 49,5 years and the adult literacy rate is 51,9 percent. The political crisis, poor governance, economic instability and natural disasters have increasingly exposed the population to the volatility of traditional survival mechanisms.

Haiti’s dysfunctional state is magnified by the country’s deforestation, desertification, and erosion resulting from the cutting of wood for charcoal. Politics is unusually internationalised. One in five Haitians requires foreign food for support, making the country dependent on foreign donors.

On 29 February 2004, amid rebel violence and turmoil, President Aristide resigned and left the country. In conformity with the Constitution, Mr. Boniface Alexandre, Chief Justice of the Supreme Court, was sworn in as interim president. That evening, the United Nations Security Council approved resolution 1529, authorizing the immediate deployment of a Multinational Interim Force (MIF). Following a consultative process, Mr. Gerard Latortue was designated as interim Prime Minister and established his government on 17 March 2004. On 30 April 2004, the United Nations Security Council created, under resolution 1542, MINUSTAH.
MINUSTAH is committed to working with the Haitian Government to establish rule of law as a matter of urgency. At the request of the DSRSG, ILAC’s assessment was designed to review the current status of the Haitian judicial system and, using the ICF (see page 15) as a baseline, to identify and prioritise sustainable short-term projects which can support the reform process 5 in post-conflict Haiti. To do this, the ILAC team reviewed previous assessments, lessons learned, and the ICF, and traveled to Port-au Prince and Gonaïves, Haiti. It met with more than 60 Haitians, including members of the judiciary, lawyers, police, prison officials, legal academics, representatives of non-government organisations (NGOs), human rights advocates, civil society organizations and international representatives.

Profound problems remain. Security does not exist, there is massive systemic corruption, the infrastructure is little more than a decaying shell, and there is tremendous class division within society. The majority of those who have committed atrocities have not been brought to justice. There is a lack of cohesion between the government and civil society and a serious inability to compromise. The National Assembly stopped functioning in January 2004 when the terms of all Deputies and two-thirds of sitting Senators expired; no replacements have been elected. The present Interim government is non-elected, and currently ruling by decree; in addition it exercises little control over the territory and lacks support among large sections of the population.

There is widespread distrust of Haiti’s judicial system and police and a corresponding absence of the rule of law. Haiti’s Constitution provides for a civil law system based on the Napoleonic Code, but in reality, there is no effective separation of powers, a limited understanding of the principles of transparency and accountability, little knowledge of contemporary notions of human rights, limited access to legal advice and defence counsel, and unconscionable delays.

A sense of pride and dignity veils the desperation lying just below the surface; after years of continuous decline Haitians want change. Civil society groups have joined together to propose a new way forward whereby the citizens and the State form a “social contract” in order to make a new start together, define new rules that will apply the stipulations of the 1987 Constitution and radically redefine the relationship between the State, civil society and the citizen.

While Haiti has qualified and experienced jurists, training in judicial and professional independence remains a priority. The legal codes require a radical overhaul; indigent citizens must be afforded the right to counsel and legal representation, and adequate detention centres must be built. Police and prison officers require comprehensive training in all aspects of their duties, and transparency and accountability must be integrated into all areas of government.
Over the last decade the international community has poured hundreds of millions of dollars into reforming the Haitian judicial system. There have been numerous assessments of the legal system and even more programmes. Hundreds of training programmes have trained thousands of judicial actors, laws have been translated into Creole and distributed, and a judicial school constructed, yet these reforms never took hold and the judicial system in Haiti doesn’t function. Recent reports claim that respect for rule of law in Haiti has fallen to its lowest point since 1994. The police and judiciary fail to guarantee security and justice, and the incapacity of the courts results in de facto guilty verdicts for many of those arraigned and incarcerated, as pre-trial detention periods may last for years. The criminal justice system lacks training, the courts lack sufficient resources to conduct business properly. As Kofi A. Annan, UN Secretary-General, stated in a 2004 article on Haiti in the Wall Street Journal, “If anything, the situation looks even more daunting today than ten years ago.”

The simple conclusion is that outsiders cannot solve Haiti’s problems. This certainly holds more than an element of truth, but, as Mr. Annan pointed out, it is clear that Haiti can’t “sort itself out, and the effect of leaving it alone would be continued or worsening chaos.” Haiti still lacks the basic consensus and trust needed for democratisation to advance. A 2003 UNDP report evaluating past rule of law programmes in Haiti claimed that because the international community gave little consideration to absorptive capacity and Haiti’s true interest in change it 6 bore significant responsibility for programme failures. Haiti provides a textbook case of the difficulties that can follow overly optimistic and unrealistic levels of intervention. 2005 finds the international community on Haiti’s doorstep offering assistance, again. Can the international community provide effective assistance to support sustainable reform in Haiti? Can this decade be different from the last?

There are numerous reports declaring the many lessons to be learnt from past attempts. One thing is certain, there is no one organization, donor or international partner that can reform Haiti. Haitians must take responsibility and lead the long-term reform process. Security must be ensured. Haiti must seek regional support so that it is not again isolated in its own “neighbourhood.” Potential spoilers must be dealt with, through reintegration, economic reform and rule of law. There must be support for more responsible political parties and a stronger, better informed and more involved, civil society. The process must be transparent and coordinated, both internationally and within Haiti, and support long-term Haitian goals. Haiti is likely to require significant long-term assistance from the international community; but to offer any type of sustainable and meaningful assistance, the international community must learn from these lessons of the past.
Even more important than international assistance is a joint sustained commitment to reform by the Government and civil society, at the grass roots level, to build a system which both groups can trust. There is a prominent lack of cohesion and an inability to compromise that hangs heavy over the divide between Government and civil society. If Haiti is to move forward this gap must be forged. Haiti has difficult problems to which there are no quick and easy solutions.

The team was encouraged by the approach of the ICF and international coordination efforts. It is hoped that this coordination will continue at all levels during the long reform process. ILAC is fully committed to supporting this effort.

The Report recognizes that sustainable judicial reform can not exist on its own, it is dependent on simultaneous reform in closely related areas, including: security, physical infrastructure, prisons, police, as well as being able to convince the remaining armed groups to give up their weapons and return to civilian life. This Report reflects the multi-sectoral focus of the ICF and the recommendations herein rely on concurrent implementation of the sectoral programmes identified for implementation within the ICF matrices.

Progress is possible. This Report recommends short-term, practical projects that are designed to support the sustainable reform of the Haitian judicial system in the transition period 2005 – 2006. These projects are designed for partners who are generally not dependant on the outcome of the upcoming elections. These projects fit squarely within or support the priorities identified in the ICF matrix. They will have immediate, tangible and visible benefits in Port-au- Prince and the outlying counties and will provide a foundation for medium and long-term projects. These projects support independence of the judiciary, gender justice, legal training, legal literacy, and human rights. This is a foundational step in the process of re-establishing the rule of law in Haiti, and in developing confidence, both Haitian and international, in Haiti’s legal system.

The Swedish International Development Cooperation Agency (Sida) generously provided the funding for this mission.