Ed. Note. Malick Ghachem’s “Translator’s Introduction” discusses the context for and central issues in Claude Moïse’s article in this issue of The Docket, “The Constitutional Question at the Heart of Haiti’s National Crisis.”
In recent weeks, Haitians have demonstrated in massive numbers in the streets of Port-au-Prince and other cities to protest the refusal of Jovenel Moïse to leave office as President of the Republic on February 7, 2021, the date that many Haitians insist is the end of his term.[1] The controversy involves, in the most immediate sense, the interpretation and application of article 134 of Haiti’s 1987 Constitution,[2] which provides for a five-year presidential term that ends on the February 7 following the date of the elections.[3] The U.S. State Department, along with the United Nations and the Organization of American States, have taken the position, extremely unpopular in Haiti, that Moïse is entitled to remain in office until February 2022.[4] Beneath the constitutional dispute lie years of widespread discontent with Moïse and his Tet Kalè government,[5] which have been implicated in financial scandal, support for armed gangs, and other abuses. The conflict has deadlocked the country’s system of government and brought its economy to a standstill.
In a 2002 article, Sanford Levinson and Jack Balkin distinguish three kinds of constitutional crisis: recourse to a state of exception, excessive fidelity to a failing constitution, and struggles for power beyond the boundaries of ordinary politics.[6] Keith Whittington distinguishes between crises of constitutional operation – “when important political disputes cannot be resolved within the existing constitutional framework” – and crises of constitutional fidelity – “when important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions.”[7] These typologies fall short of capturing Haiti’s complex predicament, which partakes of all of these categories as well as other factors, involving the legacies of colonial rule and foreign intervention, not usually emphasized in the theoretical literature: e.g., the existence of a shadow government dominated by international organizations, major foreign powers, and NGOs; and the economic marginalization of the overwhelming majority of the country’s people through commercial arrangements designed to serve elite and international interests. The constitutional struggle that Claude Moïse identifies at the core of the current crisis involves all of the above. Notwithstanding, Moïse argues, Haitians have the capacity to shape their own constitutional future. In so doing, they can build upon a constitutional tradition that goes back to the country’s struggle for liberation from colonial slavery and Haiti’s very first constitution of 1801, promulgated by Toussaint Louverture at a time when Haiti was still formally a French colony (known as Saint-Domingue).
Professor Moïse, the Louis-Joseph Janvier Chair of Haitian Constitutionalism at Quisqueya University, is one of Haiti’s leading historians and the dean of its constitutional historians. His major works include the two-volume Constitutions et Luttes de Pouvoir en Haïti (1988 and 1990) and a recent synthesis entitled Les trois âges du constitutionnalisme haïtien (2019). Not every observer of Haiti’s crisis will agree with Moïse’s call for an overhaul of the country’s 1987 Constitution, which was designed to create a decisive break with the Duvalier dictatorship of 1957-1986.[8] But few scholars are better situated to place Haiti’s current crisis in its recent historical context, or to tease out its implications for some fundamental problems of constitutional theory and practice: how can a nation work its way back to a stable constitutional path once it has been made to derail from that path? In a situation of constitutional crisis, when the constitution has been effectively suspended, can extraconstitutional means be used to restore constitutional government, and if so, by whom and on what terms? Students of constitutional history and law (not to mention American foreign policy) have much to learn from this urgent reflection on the stakes of Haiti’s current crisis and the rich historical experiences that Haitians can draw upon to address it.
[1] I thank Michèle Voltaire Marcelin, Frantz Voltaire, and Roland Laval for reviewing this translation and helping me to understand certain terms in the original.
[2] An English translation of the 1987 Constitution can be found at https://pdba.georgetown.edu/Constitutions/Haiti/haiti1987.html.
[3] For more on this dispute, see Bernard Gousse and Jacky Lumarque, “Memorandum on the expiration of President Jovenel Moise’s term,” Université Quisqueya, Louis-Joseph Janvier Chair on Haitian Constitutionalism, Feb. 8, 2021, at https://uniq.edu.ht/upload/inside_articles_document/8714_memorandum%20on%20the%20expiration%20of%20jovenel%20moise%20term.pdf; and Harold Isaac, Andre Paultre, and Maria Abi-Habib, “Haiti Braces for Unrest as a Defiant President Refuses to Step Down,” New York Times, Feb. 7, 2021, at https://www.nytimes.com/2021/02/07/world/americas/haiti-protests-President-Jovenel-Mois.html.
[4] See Amy Mackinnon and Robbie Gramer, “Political Crisis in Haiti Poses Challenge for Biden’s Democracy Push,” Foreign Policy, Feb. 10, 2021, at https://foreignpolicy.com/2021/02/10/haiti-political-crisis-biden-state-department-challenge/. For an analysis of the international and U.S. foreign policy context of the crisis, see Georges Fauriol, “Building a roadmap for Haiti’s governance crisis,” Global Americans, March 11, 2021, at https://theglobalamericans.org/2021/03/building-a-roadmap-for-haitis-governance-crisis/.
[5] The Tet Kalé Party (Parti Haïtien Tet Kalé, or PHTK) was formally recognized in 2012 and is the political party of former President Michel Martelly and his successor, Jovenel Moïse.
[6] Sanford Levinson and Jack M. Balkin, “Constitutional Crises,” University of Pennsylvania Law Review 157, no. 3 (2009): 707-753.
[7] Keith E. Whittington, “Yet Another Constitutional Crisis?,” William and Mary Law Review 43, no. 5 (2002): 2101, 2109-2110.
[8] See Rochambeau Lainy and Jean-Fritzner Etienne, “La Constitution de 1987: Sa gloire et ses travers,” Montray Kréyol, Feb. 12, 2021, at https://www.montraykreyol.org/article/la-constitution-de-1987-sa-gloire-et-ses-travers.