"Read My Lips! We are fighting for our Constitution." Haitians are proud of their constitution and many lives have been lost to defend it. On March 29, 2005, the 18th anniversary of the constitution, Brazilian troops prevented Haitians from exercising their right to assembly. This photo of a Lavalas demonstrator in Cap Haitien (8/11/04) counters the misinformation being perpetrated by the U.S. State Department and Associated Press. Photo: ©2004 Zoe Moskowitz

An Prensip: the subordination of the judiciary in Haiti

by Brian Concannon Jr.

When Haitians say "an prensip" (in principle) to explain how something should work, "an pratik," how it works in actual practice, is rarely far behind. An prensip, the bus leaves in ten minutes, an pratik the driver will wait for the seats to completely fill up, squeeze several more people in, then pop the hood or go looking for gas.

Haiti's current Minister of Justice, Bernard Gousse, contrasted the principle and practice of justice in a June 2002 paper titled "Judicial Independence in Haiti" that he wrote for IFES, an American non-profit that runs U.S. government-funded projects in Haiti:

"The Haitian Constitution ... contains the democratic principles of separation of power and the rule of law for all Haitian people - including the principle of judicial independence. However ... the Haitian justice system in practice has never followed either the letter or spirit of the Constitution [and] ... has almost always been effectively subject to the administrative, budgetary and personal whims of an overly-dominant executive."

The paper was written almost eight years into Haiti's longest-ever stint of democracy. Mr. Gousse was a law school dean and consultant for IFES's judicial independence program. Professor Gousse was critical of the elected governments' pratik, but noted that:

"Despite the circumstances and the unfavorable environment, some judges throughout the judicial hierarchy should be commended for showing a great degree of courage and independence."

One of the judges who had shown both courage and independence was Jean-Sénat Fleury, who had worked his way up through the judicial hierarchy from rural justice of the peace to become Haiti's most respected Juge d'Instruction or investigating magistrate. He distinguished himself with impartial investigations of the country's most complicated and controversial cases. When he felt he was being pressured to act contrary to the law, he would wag his finger, shake his head, and say "No way. I'm a judge, I don't do politics."

Not long before Professor Gousse published his IFES paper, Judge Fleury was caught in the crossfire of prensip and pratik when he searched the house of a suspected drug dealer who was also a client of the then Minister of Justice. The search was legal but the Minister was angry, so the Judge was accused of stealing from the house and suspended, illegally. A few months later - too slowly, but surely - the democratic system corrected itself: the Minister was gone and Judge Fleury was back on the bench.

Last November, Judge Fleury was handed another controversial case, that of Rev. Gérard Jean-Juste, a Catholic Priest and political dissident. By that time the government chosen by Haiti's voters had been replaced by one chosen by the U.S. government and Haitian elites. Mr. Gousse was Minister of Justice, and the architect of a campaign of repression against supporters of the ousted Lavalas party. Hundreds, if not thousands, of pro-democracy activists had been killed. The Catholic Church's Justice and Peace Commission estimated that over 700 political prisoners joined Fr. Jean-Juste in Minister Gousse's jails. The Minister, his prosecutor, and the Prime Minister insisted in press conferences that the priest was linked to terrorist attacks and murder. But when the case reached Judge Fleury's courtroom, no one could produce a single witness, document or other evidence linking Fr. Jean-Juste to illegal activity. So Judge Fleury threw the case out.

Just before Christmas, another judge, Brédy Fabien, released several high-profile dissidents when the government could produce no evidence against them after 10 months of illegal detention. Minister Gousse quickly demonstrated how much justice was "subject to the administrative, budgetary and personal whims of an overly-dominant executive" by instructing the chief judge to immediately take all of Fleury and Fabien's cases away from them. This was a clear violation of the prensip of judicial independence, enshrined in Haiti's Constitution and described in Mr. Gousse's IFES paper. Judge Fleury once again showed courage and independence: he chose to resign rather than do the Minister's politics.

In 2002, Professor Gousse noted that:

"The subordination of the judiciary is further demonstrated by the lack of enforcement of judicial decisions, which require the Government Commissioner to submit an order of execution for approval by the executive. Minister Gousse has demonstrated that subordination by blocking the enforcement of judicial decisions liberating political prisoners. Two of the political prisoners ordered free by Judge Fabien at Christmas, Harold Sévère and Anthony Nazaire, are still in prison under an illegal order from the Minister, even though Gousse's own prosecutor approved the release. Gousse even transferred one dissident, Jacques Mathelier, to a prison four hours away from the jurisdiction of a judge who appeared ready to free him in July (Mathelier remains in prison)."

Throwing your political opponents into a Haitian prison does not just shut them up, it can kill them as well. In January, the U.S. 3rd Circuit Court of Appeals found "no doubt" that Haitian prison conditions "are indeed miserable and inhuman." Tuberculosis and other disease is epidemic, healthcare and food are in short supply. Some cells are so crowded that prisoners must take turns to sleep on the concrete floor. The misery is intentional: last November, the official running the UN Development Program's work in Haiti's prisons quit because the Haitian government refused to accept international help to improve conditions. The killing can be intentional too: on December 1, as Colin Powell was visiting Haiti's National Palace, police responded to a non-lethal prison protest with sustained automatic weapons fire into the cells. The government admits to ten prisoners killed, but independent human rights groups and journalists report many times that number.

The struggle between pratik and prensip is not confined to Haiti. America's government has its own principles about judicial independence and respecting democracy. IFES commits itself in its mission statement to "government by the people and for the people," an prensip. But according to a January report by the Center for the Study of Human Rights at the University of Miami Law School, an pratik, IFES used millions of U.S. taxpayer dollars to undermine the government elected by Haiti's people. The report, based on interviews with IFES employees and research on the IFES website, documented a vast network of groups that IFES created and funded to oppose Haiti's Constitutional government, including student groups, business groups, media organizations, human rights committees and bar associations. Some of these groups engaged in violent, illegal protests. IFES employees were even required to attend anti-government protests and submit reports. Many officials of Haiti's illegal interim government, including Minister Gousse and Prime Minister Gérard Latortue, worked for this program, effectively obtaining their jobs by throwing out their elected predecessors. IFES employees conceded that Gousse himself even coordinated with the rebels who launched an armed insurrection in February 2004.

In February 2005, members of the U.S. House of Representatives invited the author of the University of Miami report and IFES to a hearing, where some members expressed outrage at IFES's undermining of Haitian democracy. IFES, which advocates the prensip of transparency in government, responded by cleaning up its website. The Haiti Program description no longer even mentions IFES's creation of the network that was so proudly displayed in January. Nor does it link to Professor Gousse's analysis of attacks on judicial independence, which now looks more like his Ministry's strategy plan than a critique.

For 200 years, American policy makers have been throwing up their hands and calling Haiti a basket case, doomed to failure despite our best efforts to save it. But for 200 years we have been installing, supporting and protecting leaders like Minister Gousse, no matter what they did to the Haitian people, as long as they also did our bidding. When Haiti's leaders resist our dictates, as the Lavalas government did, we replace them with someone more compliant. Haitians will never enjoy the stability and prosperity that Americans take for granted until we abandon this tradition, and allow Haiti's leaders to actually represent their citizens. Until, in other words, our pratik in Haiti matches our democratic prensip.

Brian Concannon Jr. directs the Institute for Justice & Democracy in Haiti (IJDH). Both the University of Miami Law School report and "Judicial Independence in Haiti" can be found on the IJDH's website, www.ijdh.org