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Draft 7/10/04
Response to Issue Brief: Haiti: Issues for Congress, updated March 21, 2003


Any analysis of the current situation in Haiti must begin with the understanding that Haiti is undergoing a democratic transition, which is a process of replacing the institutions and practices implanted during three centuries of dictatorship with institutions and practices adapted to a democratic society. Such a process has never been easy in any country. The other countries where the U.S. has intervened militarily in the last 10 years- Somalia, Kuwait, Afghanistan, the former Yugoslavia and Iraq- illustrate the difficulty. Of those, only Haiti has a democratic system government not supported by foreign troops.

A better illustration comes from our own history. A propertyless white man born on July 4, 1776, when we proclaimed the self-evident truth that all men were created equal, would not have been able to vote in most states into adulthood, in some past the age of 50. An American born into slavery that day may not have been emancipated until reaching 89, or able to effectively vote in many states until age 189. A woman born on that day would have had to wait 144 years to vote. We are still waiting for a time when an American who is not a Christian white male becomes a major party’s candidate for the presidency.

The urgent needs of Haiti’s poor require that its democratic transition move as quickly as possible, but underestimating the complexity of the task or the resources needed for it will not accelerate the process.

BACKGROUND AND ANALYSIS SECTION

Page 1“Preval dissolved the legislature and ruled by decree....” President Preval never dissolved the legislature. Article 111-8 of Haiti’s Constitution states “In no case can the Chamber of Deputies or the Senate be dissolved or adjourned, nor the mandate of their members prolonged.” In January 1999, the terms of all Deputies and 2/3 of Senators had expired, without a new election taking place. President Preval merely recognized the Constitutional prohibition on extending legislative terms, and moved quickly to organize a consensus Electoral Council and Parliamentary elections.

Unless Haiti conducts new elections before January 2004, the same problem will arise. Contending that President Preval should have extended Parliamentary terms in 1999 is tantamount to arguing that President Aristide should do the same in 2004.

“Having won questionable elections in November 2000, Aristide....” The OAS did not monitor the November 2000 elections because of a dispute over elections the previous May, and some opposition parties did boycott the votes. However, President Aristide’s overwhelming margin of victory, 92% of the vote with a 60% turnout would have withstood any opposition challenge. Both the margin and turnout are consistent with the observations of the International Coalition of Independent Observers, the only international monitors, as well as with previous and subsequent Gallup polls commissioned by the United States.

From Aristide to Preval and Back Again (p. 1)

Page 2, par. 1: It is important to note that parties currently making up the Convergence Democratique opposition coalition won a plurality of legislative seats in the 1995 elections, when they were perceived to be supportive of President Aristide.

“The Haitian Constitution prevented Aristide from running for a second consecutive term.” President Aristide had spent three years of his five-year term in exile. Extending his term for three years beyond February 1996 would not have been an unreasonable interpretation of the Constitution, and would have been widely supported by the electorate. Aristide chose to step down, and establish an orderly rhythm of Presidential succession

Par. 4: “By the end of 1997, Haiti’s failure to form a new government had already cost the nation $162 million in assistance....” Much of this assistance was before the Parliament for ratification, then controlled by current members of the Convergence Democratique, long before Prime Minister Smarth’s resignation in June 1997. That Parliament, in office from 1995-1999, passed a total of nine laws, and ratified four international instruments.

“The nomination process [for Prime Minister] was stalled for months however, by bureaucratic procedures.” Preval in fact nominated three different, highly qualified candidates for Prime Minister over the next eighteen months. Parliament never even reached a vote on the nominees’ government and political program. Instead, the legislators stonewalled and delayed, purportedly for reasons related to the nominees’ technical qualifications, without ever finding a justification for rejecting them. Parliament was controlled at this time by parties currently in the Convergence Democratique.

“Preval declared that most of Parliament’s term had expired.” Preval did not declare anything; he merely recognized that the Constitution prohibited extending legislative terms.

“He then installed members of his cabinet and an electoral council by decree....” The electoral council was formed by a broad-based, negotiated consensus, from people nominated by a wide range of civil society, including three political parties now in the Convergence Democratique. No councilor was a member of or nominated by the Lavalas Family party.

Page 3, par. 2: “The dispute stemming from irregularities in the May 2000 elections remains unresolved.” The only systematic irregularity noted by the OAS related to the calculation of percentages to avoid a second round in eight senate races. One of these seats was re-run in November 2000, and the issue was fully resolved when the other seven senators resigned their seats in July 2001. The May 2000 elections, although not unproblematic, were spectacularly successful by many criteria, as the OAS stated in its report. A record amount of candidates ran for a record amount of offices. A record amount of voters registered (that is the main reason why the vote was postponed, to make sure everyone who wanted to could register), and a record amount voted.

Par. 3: “Tensions and violence in Haiti have increased dramatically since Aristide resumed office.” Although any violence is regrettable and should be stopped, current levels of political violence in Haiti are not dramatic by the standards of Haiti’s history or the experience of many other countries’ democratic transitions. Political violence has never claimed 50 lives in a year since democracy’s restoration in 1994, rarely half that number.

Par. 4: “Invoking the Inter-American Democratic Charter.” Resolution 822 does invoke the Charter in the sense that it refers to the importance of democracy in Haiti. It does not invoke it in the sense employed by the U.S. delegation to the OAS in January 2002, which proposed to invoke the Charter’s provisions relating to the interruption of the democratic order to apply sanctions on Haiti. That initiative was rejected by other Member States, because it is clear that Haiti’s democratic order has not been interrupted: there is a duly elected President, a duly constituted government. There is no documented problem with the elections of the remaining members of the legislature.

CONGRESSIONAL CONCERNS

Holding of Democratic Elections

By any account, Aristide and Family Lavalas have won every election they ever contested by a landslide, whether they were in power or the opposition. Disputes over some aspects of some elections, especially the seven senate seats in May 2000, do not affect the overall trend. Despite the difficulties of Haiti’s democratic transition, and in contrast to trends elsewhere in the hemisphere, rates of voter participation in Haiti are extremely high, testifying to the vibrancy of its democracy. For example, although many opposition parties and some voters boycotted the November 2000 elections, Aristide won a higher percentage of votes per Haitian registered voter than Bush, Gore, Nader and Buchanan combined did of US voters in our November 2000 elections.

Page 4, par. 3: The low turnout and the lack of competition has raised questions about the adequacy of the elections.” Haiti has several dozen political parties. Although some did boycott the elections, 14 candidates participated in the election. President Preval’s overwhelming and uncontested 89% of the votes in such a crowded field removed any question of his popular mandate.

Par. 5: “The United States declared the first round elections free and fair, but the Organization of American States disagreed.” All observers initially responded positively to the elections. The first criticism came a few days later, when the Lavalas party’s margin of victory became apparent. The U.S. State Department in Washington started calling the elections into question, before either the U.S. Embassy in Haiti or the OAS did. The Embassy and the OAS soon followed suit.

Page 5, par. 2: “Prime Minister Smarth said his resignation was due in part to the fraud he believes was committed by the electoral council.” Prime Minister Smarth was also confronted with massive popular protests and defections within his own party because of his economic policies. As the report mentions, he narrowly survived a no-confidence vote three months before.

“The country was without a prime minister for a year and a half, with four failed attempts to name a new one.” The four attempts failed because Parliament, dominated by parties now part of the Convergence Democratique, refused to consider any of the well-qualified candidates.

Par. 4: “Both opposition parties and international observers have said the process used to tabulate winning percentages was erroneous and gave Lavalas ten more first round victories than they should have had.” The OAS’ critique was not one of vote counting, nor did it allege a violation of a clear electoral law. Instead, the OAS’ limited critique was that the CEP, when faced with the mathematical impossibility of complying precisely with the law, chose a solution to the ambiguity that was not the best possible option. The CEP did not disguise the method it chose, and defended it publicly. The calculation problem only applied to Senate races, and the OAS only documented problems with eight of the races. The eight seats did not affect the Lavalas Family’s majority in the Senate, and all eight subsequently resigned or were re-elected.

The difficulty stemmed from the organization of the Senate ballots. Two or three Senate seats were open in each Department, because of the cancellation of the 1997 elections. Instead of forcing candidates to choose to declare specifically for only one of the seats, the CEP put all candidates on a single ballot, and allowed voters to choose two (following the precedent of the 1990 and 1995 elections, both monitored by the OAS). Many voters successfully voted for only one candidate on their ballot, either because they intentionally wanted to support a single candidate, or because they incorrectly marked one of their votes. Others did not successfully vote for any, either inadvertently or as a protest against all the candidates. When tabulating the vote, local officials made a tally of the number of votes cast for each candidate, plus the blank votes and “null votes” (where a voter made a demonstrated, but unsuccessful effort to vote, such as marking more than one candidate, or marking outside of any candidate’s box).

In order to avoid a second round under Haitian law, a candidate must obtain 50% of the votes cast in the first round, including blank votes. Under the ballot and counting procedures in place in May 2000 (to which no one objected before the election), it was impossible to calculate 50% with mathematical certainty. Achieving 50% of all the votes cast for the two races on a ballot would be impossible unless a candidate received a vote from almost every single voter. Splitting the total vote in half for the calculation raised problems with the many blank votes, as it would be unfair to count a blank vote against a candidate where the other vote on that ballot was for him or her.


The CEP resolved this issue by counting only actual votes counted, for the top four candidates in each Department. This practice followed the precedents of the 1990 and 1995 elections. In those two contests, no candidate complained about the calculation method, nor did the OAS observers. The OAS conceded that a certain calculation was mathematically impossible, and that the CEP needed to improvise, but complained that this particular improvisation was not the best one. The OAS also noted that the issue did not affect the balance of power within the Senate.

“Elections council President Leon Manus fled Haiti in fear of his life.” The OAS critique was leaked to the press before the CEP received it. When CEP President Manus did respond, he forcefully defended the policy, and explained how the Council had merely followed the precedents set during previous elections, when the Council dealt with the same problem in the same way, without complaint from the international community. Mr. Manus was subsequently contacted by U.S. authorities, and eventually transported from Haiti in a helicopter arranged by the U.S. government that filed a false flight plan. Once he was in the U.S., Mr. Manus criticized, for the first time, the calculation method.

“Pressure from President Preval to approve incorrect results giving Lavalas candidates 18 Senate seats” As discussed above, Mr. Manus forcefully defended his calculation before he left for the U.S. It should be noted that the Lavalas party did not have a representative on the CEP, although three of the unsuccessful political parties did. The CEP’s calculation gave one of the eight contested seats to a non-Lavalas candidate.

Par. 5: “international donors... refused to send observers to the election”. The International Coalition of Independent Observers, a coalition of NGOs from the U.S., Canada and Europe deployed twenty-five observers throughout the country. Although not accredited, U.S. Embassy employees were sent out to informally observe election activities.

“Opposition parties boycotted them.” Six opposition parties did run candidates in the 2000 Presidential election (although three candidates pulled out at the last minute. The official election results, which are consistent with the International Observers’ reports and subsequent U.S.-sponsored Gallup Polls, gave President Aristide 92% of the vote, with a 60% turnout. As President Aristide’s share amounted to over 50% of registered voters, if the entire opposition had rallied around a single candidate, and every registered voter who either did not vote at all or voted for someone else in November had voted for that candidate, President Aristide would have still won.

Par. 6: “President Aristide pledged to make several political judicial and economic reforms, including correcting the problems of the May 20 elections.” President Aristide has made these reforms. With respect to the May 20 elections, he secured the resignation of the seven remaining contested senators, which effectively corrected the only systematic problem documented by the OAS.

Page 6, par. 1: “the opposition proposed that Presidential elections be re-held as well.” The Convergence Democratique made this proposal; many other opposition groups did not endorse it or rejected it. There is absolutely no documentation of systematic problems with the November 2000 elections.

Par. 2: “[OAS Resolution 822] removed the obstacle of having to complete negotiations with the opposition before elections can be held.” Although Resolution 822 did make it more difficult for a single opposition party, including the Convergence Democratique, to exercise a veto over the elections, it did not remove the veto. In fact, the Resolution’s initiative stalled when the Convergence Democratique refused to participate at all, and its allies made their continued participation contingent on satisfying the Convergence.

Cost and Effectiveness of U.S. Assistance

Page 8, par. 2: “Human Rights conditions have deteriorated following President Aristide’s announcement of a “zero tolerance” policy for “criminals.” Haiti’s “zero tolerance” policy, like “zero tolerance” policies in New York City and elsewhere in America, is an initiative for police to enforce the law aggressively but legally, and with the assistance of the citizenry. President Aristide’s speech announcing the policy advocated only legal actions. When some people felt it could be interpreted otherwise, the President immediately issued a written clarification that all enforcement activities should respect Haiti’s Constitution and its laws.

“According to AID, the executive branch has moved steadily to consolidate power at the expense of the judicial and legislative branches of government.” Like the U.S., Haiti has a constitutional balance of power among the three branches of government. In both countries, there are conflicts at the borders of two or more branches, and different outside contexts can give one branch a temporary upper hand. However, in Haiti, as in the U.S., clear constitutional provisions guarantee the basic balance. Haiti has not suspended these provisions, or any provisions of its Constitution, at any time since the restoration of democracy in 1994. As in the U.S. right now, a single party controls the executive and legislative branches in Haiti, and due to longevity in power has exercised significant power in the judiciary through appointments.

Par. 3: “[Unresolved issues] include the legitimacy of the Parliament.” No government or international organization has questioned the legitimacy of the Haitian Parliament. The dispute over the seven senate seats notwithstanding, the U.S., many other governments, the IDB and international organizations recognize the acts of the current legislature as legitimate. Parliament has passed many laws relating to international cooperation and has ratified several bilateral and multilateral agreements, without any country or international organization objecting to its capacity to do so.

“The Haitian government also had not met conditions required by the loans prior to disbursement.” The IDB has stated clearly that after Parliament ratified the loans in 2000, Haiti had satisfied all pre-conditions for the loans. Although Haiti is, in fact, in arrears on prior loans made to Haitian dictatorships, it did not become in arrears until after the IDB wrongly refused disbursal.

Haiti’s Economic Policy and Role for U.S. Business

Page 9, par. 3: “although President Aristide had agreed to privatize some of the government enterprises, he backed off when political opposition arose.... [prompting] the suspension of assistance by the international financial institutions.” The Haitian government made preliminary agreements to privatize in Paris in 1994, as part of the agreement that led to the international community’s ousting of the de facto military dictatorship. The Paris Plan’s provisions for privatization foresaw significant social safety nets, including ownership of privatized companies by labor unions and cooperatives, and continued state ownership of controlling interests. As the privatization process proceeded, the international community made it clear that the social safety nets were not acceptable in practice. Without the negotiated safety nets, the privatizations became less palatable to both the Haitian electorate and its government.

Haiti has complied extensively with many of the international community’s financial dictates. Tariffs were reduced drastically after the restoration of democracy, virtually removing any protection of Haitian agriculture from foreign competition. According to an IMF “market openness test”, Haiti is the second most open market in the world, after Chile. The main beneficiaries of this openness are American agricultural exporters.

Par. 4: “Preval’s dissolution of parliament left Haiti without a fully functioning government.”
President Preval never dissolved the legislature. Article 111-8 of Haiti’s Constitution states “In no case can the Chamber of Deputies or the Senate be dissolved or adjourned, nor the mandate of their members prolonged.” In January 1999, the terms of all Deputies and 2/3 of Senators had expired, without a new election taking place. President Preval merely recognized the Constitutional prohibition on extending legislative terms, and moved quickly to organize a consensus Electoral Council and Parliamentary elections. Haiti was left without a fully functioning government, but this problem preceded the legislative expiration, and was created by the legislature's inaction. Haiti had lacked a Prime Minister since PM Smarth’s resignation in June 1997. The void was perpetuated by Parliament, then controlled by parties now part of the Convergence Democratique, which refused to vote on any of President Preval’s three PM nominations.

Security and Human Rights Concerns

Page 10, par. 4: “Haiti’s police force is under-equipped, ‘demoralized and unmotivated.’” Haiti’s police have never received the financial or training support required for the task. Most police officers were given a three-month training in the U.S., then deployed. This training would be inadequate in the best of situations, and was especially inadequate in a country with no experienced officers and no tradition of democratic policing. Much of the U.S.-based training, as well as continuing training run by the U.S. Government’s ICITAP program, was compromised by frequent use of training relationships to recruit for U.S. intelligence agencies. The recruitment undermined instructors’ credibility among trainees and police leadership, especially where the lessons were against “politicizing” the police institution. The recruitment compromised the training sufficiently that ICITAP’s director sought to impose a rule prohibiting such activities (unsuccessfully). Although the U.S. did provide some material support for Haitian police, the police, unlike the predatory Haitian army, never received adequate materials to do their work effectively. This situation has deteriorated significantly under the embargo.

Par. 5: “In two major human rights cases [in 2002], former Haitian soldiers were found guilty of extra-judicial killings...” In the first of the cases, the Carrefour Feuilles Massacre, those convicted were high-ranking active duty police (although some had been members of the military), including the Police Chief of Port-au-Prince. This case was, at the time, the best complex criminal case in Haiti’s history, and the first time that high-ranking law-enforcement officials were tried for human rights abuses.

Page 11, par. 1: “Most media outlets practice self-censorship out of fear of retaliation.” Both daily newspapers published in Haiti, the vast majority of radio stations (the most significant source of news in the country), and all but two television stations are consistently and forcefully critical of the government, in both news reporting and opinion pieces.
“Brignol Lindor, who hosted opposition speakers on his radio talk show, was hacked to death by members of a pro-government group after a local Lavalas Family official announced over the radio that Lindor should be met with ‘zero tolerance.’” Brignol Lindor’s principal occupation was not journalism, but a prestigious government job in the port at Petit-Goave, a highly politicized and polarized city. Lindor also hosted a weekly radio show that featured criticism of the government. The mayor’s reported statement against Lindor was not a death threat, rather criticism that several people, including Lindor, who were holding sought-after government jobs while criticizing the government. By “zero tolerance”, the mayor meant that those people who did not agree with the government’s program should not be allowed to continue working for it.

Lindor’s death was precipitated not by the mayor’s speech, but by a brutal attack on a government supporter. That morning, a group of government opponents attacked Joseph Duverger, a government supporter, with machetes and left him for dead. When Duverger’s friends heard of the attack, they became enraged and immediately sought revenge on a government opponent. Lindor had the misfortune of running into Duverger’s friends on the street, and was attacked and killed. Although the mayor of Petit-Goave resigned in order to diffuse tensions in the city, no direct evidence of his involvement in Lindor’s murder has been found.

Par. 3: “the OAS released a report stating that the December attack was not an attempted coup, as the Aristide administration had claimed.” The OAS based this conclusion primarily on the fact that President Aristide and his top security were at the President’s private residence, not the National Palace, when it was attacked. There is logic in this finding, but it is contradicted by history: 1991's successful coup against President Aristide started against the National Palace when the President and his best security were at the President’s private residence. By taking the lightly defended Palace and digging in, the 1991 putchists forced the President and his security to try to fight their way across the city and into the Palace.

“Since late 2002, violent protests have erupted around the country, with reports of increased calls for Aristide’s removal among Haiti’s poor....” Respect for the freedom of assembly encourages protests by all citizens. Each anti-government demonstration of the last year, however, has been more than matched by a corresponding but larger pro-government demonstration. U.S.-commissioned Gallup Polls and informal polls by journalists confirm the continued solid support for the elected authorities among the majority of Haitians who are poor.

Narcotics Trafficking

Par. 5: “[Haitian officials], because of Haiti’s extreme poverty, are considered highly susceptible to corruption.” U.S. consumers spend three times each day for transport and distribution of illegal drugs what Haiti spends in a year for all law enforcement, including police, prisons and courts. According to The Economist, July 28, 2001, the official estimate of retail drug sales in the US is $60 billion/year. Assuming, conservatively, that production costs for illegal drugs are 10% of retail price (for cocaine and heroin, the Economist reports production costs are less than 3%), then transport and distribution costs are $54 billion per year, or $148 million per day. Haiti’s budget for justice and law enforcement, including courts, police and prisons, is about $50 million a year.

Page 11-12: “There are allegations that high-ranking [Government of Haiti] officials in the government, judiciary and the police are involved in or tolerate [drug] trafficking.” Allegations of this sort have been repeated by U.S. officials since 1995, never with any solid proof. In contrast, many Haitians associated with prior, U.S.-supported dictatorships have actually been indicted or convicted of cocaine trafficking: Jean-Claude Duvalier’s brother-in-law Franz Bennett was arrested in Puerto-Rico in a cocaine sting operation in 1982; Army Colonel Jean-Claude Paul was indicted in Miami in 1988; former Colonel Michel Francois was indicted in Miami, although his extradition from Honduras was denied. Prosecutors were able to arrest and convict Marc Valme, the U.S.-trained head of airport security under the de facto dictatorship in that case.

The Haitian government has, despite abundant obstacles and scarce resources, taken many steps to fight drug trafficking and drug money laundering. Haiti has worked closely with the DEA, and has deported several suspects to the U.S. for prosecution. It has established a National Commission to Combat Drug Trafficking, and a Financial Intelligence Unit (money laundering). Haiti joined the Caribbean Financial Action Task Force, signed and ratified the Maritime Counter Narcotics Agreement with the U.S. (allowing U.S. access to Haitian waters in pursuit of drug traffickers) and passed a comprehensive anti-money laundering law.

CHRONOLOGY

5/21/00 “Observers report fraudulent counting of votes.” Neither the OAS nor any other observation team reported widespread or systematic fraudulent counting of votes. The only systematic problem cited for the elections was in the formula used for calculating the winning percentage for eight senate races.

03/99 “President Preval appoints new prime minister and electoral council by decree.” The electoral council was appointed pursuant to a consensus process. Most of the principal opposition parties participated, and named councilors. Family Lavalas did not have any representative on the Council.

01/99 “President Preval dissolves Parliament and local governments...” President Preval never dissolved the legislature. Article 111-8 of Haiti’s Constitution states “In no case can the Chamber of Deputies or the Senate be dissolved or adjourned, nor the mandate of their members prolonged.” In January 1999, the terms of all Deputies and 2/3 of Senators had expired, without a new election taking place. President Preval merely recognized the Constitutional prohibition on extending legislative terms, and moved quickly to organize a consensus Electoral Council and Parliamentary elections. The President also recognized that the local mayors’ terms all expired at the same time. As there is no express Constitutional prohibition against prolonging the mayors’ terms, and there was a need to continue local administration, the President appointed all but a few of the existing mayors to continue in office pending new elections.



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