The makings of a Haitian Faustian bargain

The makings of a Haitian Faustian bargain

In the 16th century medieval legend, Faust was a very successful scholar who was once idealistic but became disillusioned and bitter with despair. He decided to forsake God and made a contract with the devil in which he exchanged his soul in return for power and worldly gains.

As was the case with Faust, the Haitian social, economic and political elites have continued to enter into a similar agreement by forsaking what is right and selling the country’s soul piece by piece in exchange for power and worldly gains.  Our elected leaders openly use violence to reach the highest offices and once there they openly disregard the very constitution they had sworn to protect and uphold.  Justice is arbitrary and sold to the highest bidder.  The innocent lingers in prison while the guilty walks freely and proudly among us in society. Our institutions from the family to the schools, to the church to parliament, have all lost their last shred of credibility.  The country is left rudderless and drifting further out of control with each passing day.

At the root of these institutional fractures are the Faustian bargains that produce the disintegration, failed governance and never ending political crises.  In entering into these bargains, our hope has been that they might bring about peace and stability, and they often do offer glimpses of false hopes.  In the end, such hopes are not only short lived but they always lead to further disillusionment, despair and cynicism.  The most recent case of such a bargain is the agreement signed between the former President of the Republic, Michel Martelly and the Presidents of both Houses of Parliament. 

It [the agreement] allowed President Martelly to step down gracefully on February 7 as mandated by the constitution.  It also helped to avoid one political crisis but only in exchange for another, as such bargains often do.  To situate this agreement, it is important to reiterate that the requirement for the President to step down at the end of his term was never optional but always was a constitutional obligation.  In article 134.1 of the amended constitution it states that:

La durée du mandat présidentiel est de cinq (5) ans. Cette période commence et se terminera le 7 février suivant la date des élections.

 Further, it specifies in Article 134.3 that:

Le Président de la République ne peut bénéficier de prolongation de mandat. Il ne peut assumer un nouveau mandat, qu’après un intervalle de cinq (5) ans. En aucun cas, il ne peut briguer un troisième mandat.

In sum, these two articles define clearly the start and end date of a presidential term.  The constitution is just as clear on what should happen if a vacancy occurs during that term.  It stipulates in Article 149 the following:

En cas de vacance de la Présidence de la République soit par démission, destitution ou en cas d’incapacité physique ou mentale permanente dûment constatée, le Conseil des Ministres, sous la présidence du Premier Ministre, exerce le Pouvoir Exécutif jusqu’à l’élection d’un autre Président.

Dans ce cas, le scrutin pour l’élection du nouveau Président de la République pour le temps qui reste à courir a lieu soixante (60) jours au moins et cent vingt (120) jours au plus après l’ouverture de la vacance, conformément à la Constitution et à la loi électorale.

Dans le cas où la vacance se produit à partir de la quatrième année du mandat présidentiel, l’Assemblée Nationale se réunit d’office dans les soixante (60) jours qui suivent la vacance pour élire un nouveau Président Provisoire de la République pour le temps qui reste à courir.

Unfortunately, the constitution has no provision for what happens when a vacancy occurs because elections were not organized to elect a successor to the President. Therefore, on February 8^th, Haiti’s leaders were faced with a presidential void and a constitutional dilemma.  In a country with the rule of law, which Haiti is not, this would have been an interesting legal issue to be resolved by the constitutional court or the court of cassation. Instead, through a slight of hand and unlike previous tripartite agreements (for example, the December 29, 2014 agreement to extend the mandates of the deputies) the former President of the Republic and the Presidents of both Houses of Parliament signed an agreement as representatives of two of the three co-depositories of the national sovereignty.  Through the same magic trick, the judicial branch, which is the third co-depositor of our national sovereignty in this equation, vanished like the old magic trick of the white rabbit in the deep black hat. 

This should not be worth noting but the constitution establishes three major branches of government--legislative, executive, and judicial as stated in Article 59:

Les citoyens délèguent l’exercice de la souveraineté nationale à trois (3) pouvoirs: le pouvoir législatif; le pouvoir exécutif; le pouvoir judiciaire.

Yet, despite having unconstitutionally discarded the judicial branch, to bolster their bargain the executive and the legislative branches cynically went to great lengths in referencing 14 constitutional articles as its legal framework.  Worst, they presented and sold the agreement to the public as if it was on equal footing (pari passu) as the constitution and used it to convene the national assembly who would subsequently elect the provisional President.

In fact, the agreement was just that – an agreement that had no real legal basis even as it served a singular political purpose and that was to find a way out of the immediate problem posed by the presidential vacancy.  With further cynicism, even as they signed the agreement, the parties knew that it could never lead to a permanent solution or even get fully implemented within the proposed timeline.  The agreement was a limited political tool and it certainly could not under no circumstances take precedence over the constitution.  As a result and as was expected, it is today at the center of deeper disagreements and the basis of controversies pertaining to the timing of the second round of elections and the provisional President’s term in office, which it is argued should end by May 14.  Sadly, what is not being discussed is whether President Martelly could engage the executive in such a deal, and whether President Privert and Chancy had the mandate from the Senate and the Chamber of Deputies respectively to enter into such an agreement on their behalf.  It is also not clear whether the national assembly --made up of the senate and chamber of deputies-- subsequently ratified the agreement as required by the Assembly's own internal rules.

The antagonists in this new tragic political drama are making two arguments. The first, which buttresses the second, is an issue of ethics. It is used to question whether Mr. Privert who signed the agreement on behalf of the senate should have been able to benefit from it.  This is a rather sophisticated argument to at best undermine the President’s legitimacy and at worst weaken how the public perceives him.  The second and more forceful argument is that the agreement is legally binding and must be applied (pacta sunt servanda) at any cost even when the dates that were agreed upon have long expired. 

To understand and evaluate the arguments being made, they must be taken apart.  First, it is important to note that as a legal matter senator Privert (and deputy Chancy for that matter) signed the agreement as a representatives or proxies for the senate and chamber, and not as individuals.  This is analogous to a manager signing a contract on behalf of the business for which he works or a president signing an international treaty on behalf of his country.  In these contexts, the engagement is institutional rather than personal.

Once that task was completed, there weren’t ethical issues that prohibited senator Privert (as a citizen and even a senator) to present his candidacy for the post of President.  Moreover, the Senate’s permanent committee on ethics and corruption is responsible for dealing with the ethical issues, if indeed there were any.  Instead, the senate accepted senator Privert’s candidature.  Once he passed that test then Article 135 of the constitution came into play, which outlines the eligibility requirements to be president.  In a normal country, one should have the confidence that the national assembly verified that Mr. Privert met the constitutional requirements and in this case we will assume that that was done.  Finally, the assembly proceeded to hold a debate about the candidates for the post, which resulted in a vote and the subsequent election of Mr. Privert as Haiti's provisional President, and in accordance with Article 135.1 he took the oath of office before the assembly.  From that point on, the only relevant articles are from 136 to 154, which outline the powers of the President.

The second and more difficult question is on the length of the provisional term.  Since the constitution doesn’t provide any guidance on the question of what should happen when a President cannot be replaced because elections were not organized to elect a successor, the parliament was left without any legal reference.  Given the legal void, they could have looked at the precedence set from previous transitions (e.g., Ertha Pascal-Trouillot, 1990 or Boniface Alexandre, 2004).  Instead, they decided to use article 149.3, which is applicable only when a vacancy is duly declared because of the President’s resignation, dismissal, death or in case of physical or mental permanent incapacity.  In that case, the article requires that “…the Council of Ministers, under the presidency of the Prime Minister, exercises the Executive Power until the election of another President.”   It also compelled the National Assembly to meet within sixty (60) days after the vacancy to elect a new Provisional President of the Republic for the time left to run.  These provisions in article 149.3 were ignored.  

The assembly’s contempt for the constitution and its disdain for the judicial branch’s role in interpreting it make its decisions arbitrary, and it’s choices unconstitutional and legally unenforceable.

The solution to the this crisis as it was for the ones that came before will inevitably require a political agreement based on the articulation of greater social cohesion between the masses and Haiti’s social, political and economic elites.  The international community, which undoubtedly had a hand in our getting to this point, understands the political and legal predicament all too well.  They understand the potential risk for this political confrontation to converge with the deepening economic crisis and how the vacuum of leadership could spiral into violence that would threaten regional stability.  The containment of such a crisis would require a deeper and more visible international intervention – an unacceptable option.  Indeed, such an outcome would particularly upset the United States’ hegemonic foreign policy strategy but also its internal politics during a particular caustic presidential campaign. More importantly, for the foreign policy makers that make up the core group, the potential images on CNN of bodies on the streets of Port-au-Prince or the flows of refugees heading to the shores of Florida and other neighboring countries would lay bare their strategic failures in a tiny place and seemingly backward place like Haiti.

The members of the core group want to avoid any major civil unrest and are therefore using all of their political influence to see that elections are held as quickly as possible – the truth and certainly Haiti’s sovereignty be damned.  The recent show of force by the core group and the US representatives in the Haitian parliament is evidence of the state of panic that must have gripped them and for the second time in a row they have shown their hands and lost. Unfortunately, they have not understood the limit of their power and influence, which has diminished significantly as a result of their continued undiplomatic intrusion into Haiti’s internal affairs and their political meddling in the last elections.  The decline in how most Haitians view the US’ role as a mediator is the result of  its intervention in the last election and was consolidated after Mr. Opont, the former president of the provisional electoral council, admitted that the international community falsified the 2011 election results.

It is not clear what will happen on May 14 (or June 14 if based on the agreed 120 days limit) when President Privert’s term comes to an end in accordance to the agreement.  At the same time, it is quite evident that this parliament does not have the moral legitimacy to play a positive role in such a historical moment nor will it have the legal tool to remove the provisional President from office, who also has no such legitimacy and has not made any effort to gain it either.  Sadly for the country and maybe rightly for the parliament, in this game of chicken it could become the victim of its own choices to blatantly and consistently disregard the law and to act with contempt for the constitution. The greater good is never part of the equation for our political leaders as this crisis and countless others throughout Haiti’s history have shown.  Instead, they are expanding time and energy on an agreement that they all know is unenforceable or at best enforceable by force instead of the law.   

However, what is clear is that we, the concerned citizens, can either sit back and watch the country continue its descent into hell or we can step up and provide the leadership necessary to change the course of our own history.  What is clear is that our silence, indifference and ignorance is complicit in our own self-destruction, and in them our political and economic elites have found tacit approval to continue to rape and pillage the country’s coffers and meager resources.

It may be a fact that most Haitians do not know where to turn and are too tired or too scared to demand changes in our politics.  Nonetheless, unless we rise up, we will continue to be the victims of the next gas station that goes up in flames, the next out of control truck whose breaks fail and destroy and maim along the way, the next bridge collapse, the next flood, the next fire for which there are no fire trucks,  the next road accident for which there are no ambulances or hospitals to provide medical care and the victim of the next robbery after leaving a bank for which noone will be caught and punished.  We will be the ones who continue to suffer the big and small indignities of three to four-hour long traffic jams, and not have access to the basic services like water, electricity, healthcare, and receive bad services from the phone companies, the banks and the rampant system of corruption in the provisioning of public services. We are the ones who pay the price for the permanent instability and the indignities of being stopped by UN soldiers and foreign ambassadors in our parliament.  Indeed, our silence is the fuel that feeds the system of corruption and instability.

We have come to loathe the concept of politic when in reality it is the lifeblood of an organized society.  Politic is define in Wikipedia as “the process of making uniform decisions applying to all members of a group and involves the use of power by one person to affect the behavior of another person.”  We may be correct in our disdain for lowly politicians who see politic as the only path toward social mobility and ensure their own financial security.  However, our absence from politics does not absolve us from our responsibilities as citizens or from our right and obligation to demand an end to impunity and a return to the rule of law and constitutional order.  In principle, elections are supposed to be the way in which citizens exercise these rights and responsibilities, and select as well as sanction their representatives.  However, as a right that can be exercised every four to five years, election is simply not powerful enough to affect the systemic change we need.  

It is also evident that individually we cannot take on the huge political-bureaucratic machine that is the government.  Moreover, the political process can overwhelm even the most well organized society but all is not lost for Haiti. In part, the solution will require that concerned citizens (abroad and in Haiti) finally understand that democracy is not a spectator sport.  We need to expand our social capital and act towards the common long-term interest or perish alone. This will require that we have the courage to step into the public square and engage in the debates on the major social and political issues of the day. 

We must speak out when our leaders step out of acceptable norms or act outside the law.  It can start by applying social pressure to demand that public officials abide by and conform to the rule of law.  It begins with a parliament that respects the constitution and police officers who obey the law.  We must use the law but also the court of public opinion to pressure and punish public officials like judges who accept bribes to release thieves, rapists, murderers and kidnappers back into society.  We must fulfill the responsibility to pay our taxes and use our right to demand access to basic services like clean streets and the fair application of the law.  We must leverage the social forces to compel our politicians and civil servants to follow the rules and respond to our demands. 

An essential part is, therefore, social mobilization –though not necessarily street protests— to convert our numerical, moral and intellectual strengths into genuine bargaining power.  Furthermore, we can use technology, work with the independent media and civil society organizations to promote public disclosure, conduct citizen-based budget analysis, service benchmarking, and program impact assessments to make the government more transparent and accountable.  More importantly, we must demand a break up of the monopolies, especially the ones held by a merchant class that has no allegiance to Haiti or its citizens except as customers.

In summary, the currently brewing constitutional and electoral crisis is not new but all the elements are in place to explode into civil unrest or even a civil war.  It is a scenario that the international community cannot accept as it would lay bare their own failure but also one that we, as citizens cannot accept as it would spell the final disintegration of our nation.  

The solution that has always existed is to step up, unite our forces and leverage our social capital to engage in a national dialogue in order to create a social contract that includes all Haitians.  In the horizon is the outline for deep civil unrest by a restless and frustrated population.  The international community has clearly shown its hand and is no longer viewed as a fair mediator, if it ever was.  Our civic engagement and political participation offer the only possible exit out of this new man-made crisis.  They also offer a new opportunity to strengthen our democracy, hold our leaders accountable and create a country in which the rule of law is finally a reality for all of its citizens.  The moral voice of organized society is the essential tool for obtaining fair elections, clean streets and respect for our basic rights.  We must become soldiers in the war against impunity, corruption, hunger and an education system that zombifies our children and destroys any hope for our shared future.

The trap of the Faustian deal is that the signers become corrupted and trapped, and the expected benefits are always compromised and short-lived.  The parliament has sold Haiti’s soul piecemeal to the devil for power but “for what shall it profit a man, if he shall gain the whole world, and lose his own soul?”