By Joseph Manès Louis, Juno7, June 28, 2025
This following is the result of my deep reflection on Haiti, my beloved country. It is also a political and legal analysis that could give rise to a genuine societal debate. Haiti continues to be scandalized both internally and externally. After reading this preliminary draft, I am truly astounded.
Indeed, from the presentation note to the drafting of the "draft Constitution," we find only a set of poorly understood concepts, allegations, and the drafting of articles full of confusion. Unlike the constituents of 1987 who produced a relatively acceptable draft, the experts of 2025 have produced a text said to be "disposable." A preliminary draft Constitution is by nature debatable, especially since I thought I was hearing talk of a "national conference." The preliminary draft Constitution was supposed to be the result of yon vrè chita pale (a real dialogue), and not an imaginary or botched conference. Of course, for those who agree to play the game of modifying the 1987 Constitution.
To my great surprise, they also resorted to importing French and American public law. These foreign laws have already been transformed in Haiti into a truly gigantic distortion of imported law. One has the impression that nothing is settled in Haiti. There is also a real confusion between the notion of constitution and that of organic laws, which bothers me in more than one way. The length of the text testifies to this and seems to depart from any methodological approach. The experts allow themselves to speak and write in the name of the people without being authorized. This is considered perjury, with all due respect to colleagues, comrades, and friends. Because persisting in error is more than a fault, and recognizing it is a human quality. I waited in vain for mea culpas.
It must be understood that a Constitution, once written, is a founding text that must be supplemented by organic laws. The alleged pretext for changing the 1987 Constitution is like a tree hiding the forest. It is a ploy that conceals an anti-democratic mentality and a patrimonial conception of the State that gradually destroy the foundations of the Haitian State. Democracy is built with a democratic culture. It is built with a minimum of well-being for all. Unlike the democrature that has been established in Haiti since 1987, democracy is built with a set of solid institutions where the principle of accountability admits of no exception. When you have a Constitution, you must start by respecting its rules. Whatever one says about it, the 1987 Constitution cannot be responsible for "Haitian maladministration."
Let's say, for example, that the 1987 Constitution has nothing to do with the BNC affair , which temporarily results in a parody of justice. A law graduate with an orange blossom could easily understand the notion of a public official under the United Nations Convention against Corruption, of which Haiti has been a member since May 24, 2007. Haitian law adapted to this multilateral Convention on March 12, 2014. Since then, a new stream of special criminal law has entered the civil service, including political positions. Public law (Haitian international) defines a president, a parliamentarian, a minister, and so on, as public officials in matters of corruption. Out of honesty, I endorse the public and reasoned position of Mr. Samuel MADISTIN, according to which any public official is liable to trial before the ordinary courts. The professionalism and courage of Magistrate Lyonel C. BOURGUOIN, former Government Commissioner at the Port-au-Prince Prosecutor's Office, deserve to be commended with respect and honor in this case. His disguised transfer is merely an asset that enriches his assets. In Haiti, a Minister of Justice who wants to help rebuild the prosecutor's office must be independent within his own government. In saying this, he must always be prepared to resign. As for our colleague, Mr. Guerby BLAISE, lawyer for one of the three accused in power, he made strategic use of the law, which is humanly and professionally understandable. The Haitian justice system has emerged weakened as usual. Rightly or wrongly, it is still treated like the poor relation of the administration. Don't go too far in dissecting the causes of such treatment. In any case, it is the people who pay the price. What must be remembered in this case is that the tarnished CPT does not inspire confidence and will fall of its own weight. Furthermore, it must be remembered, in principle, that one cannot civilize either the pragmatism of administrative law or a political agreement, or even a decree which, in my humble opinion, is a pseudo-legislative act. The Constitution is also innocent in the scandal of diplomacy that values the right of the first night. In short, it also has nothing to do with the establishment of de facto powers that give free rein to corruption. On the contrary, it is flouted in a democratic process going from crisis to crisis. Let's stop blaming the Constitution!! There is no perfect constitution. It would be more logical to accuse those who violate the rule of rules and enrich themselves at the expense of the population before and after 1987. Many of them are alive and enjoying their spoils in peace. What's worse, they are better valued by certain media outlets behind which certain bosses who make their money from tax fraud hide.
It seems surprising that no one can explain the methodology and objective criteria by which these experts were supposedly chosen. These experts seem to be leading us toward another crisis, that of constitutional reform. All of this is happening with de facto governments that are struggling to draw inspiration from the doctrine of de facto powers that dates back to the First World War. I mean "drawing inspiration." From 1987 to date, Haiti has never known a functioning democracy. The Constitution is the only accused party that finds itself in the hot seat.
Following the assassination of President Jovenel MOISE on the night of July 6-7, 2021, two Made in USA humanitarian governments succeeded one another. The first with Mr. Ariel Henri, former Prime Minister, who was installed thanks to a tweet from the American embassy in Haiti, and the second is the apparent work of "High-ranking figures" of Caricom, whose strings the USA pulls like real puppets. It is the reviled CPT and the Fils AIMÉ Government who want to impose a ready-made and ambiguous constitution on the Haitian people. However, public law is not imported unless it is done between two or more peoples who have the same cultures and the same level of development. The project to change the constitution is therefore chimerical in both form and substance. Besides the issues that this initiative itself raises, I would like to shed light on the illegitimacy or legitimacy of those in power (1) in relation to this reform project which is being announced with so much confusion (2).
1 – legitimacy or illegitimacy of those holding de facto power
It is often said that a de facto government is illegal and unconstitutional. This misunderstanding deserves to be forgiven. For this way of speaking is due to a misunderstanding of the nature of de facto powers or to a mistake in attention. A de facto power is intended to be neither legal nor constitutional. It is essentially undemocratic by its very nature.
According to the Dictionary of Public Administration, the word legitimate comes from the Latin legitimus and means "fixed by the laws, in accordance with the laws." As such, legitimacy refers to a level of conformity to the law or an institution. In positivist legal logic, it is a legal or constitutional legitimacy. It is therefore formal. It also has a subjective character according to which everyone can form their own opinion. According to Max Weber and F. Scharpf, there are several types of legitimacy: "legitimacy by procedures, results, shared beliefs, and international legitimacy."
So a de facto government can indeed be legitimate. Administrativists are almost unanimous in recognizing that administrative legitimacy is assessed and explained by the satisfaction of the general interest. This is legitimacy "by results." Because public service is defined as an activity of general interest. With this team composed largely of former opponents of the power of ex-President Jovenel Moise, the patrimonial conception of the State reaches its paroxysm and the Haitian State is no longer a block of public services. It is the personalization of power that is imposed.
In this context, a so-called war budget is far from solving the insecurity problem. As is often said, a poorly formulated problem will have no solution. The insecurity that has been taking hold in Haiti since 2019 is symptomatic of a deeper secular crisis. A war budget will be a Pandora's box and a sure way for those in power to enrich themselves much more. The acts of corruption for which they are accused enjoy total impunity. The state justice system is failing and has proven incapable of taking responsibility. The members of the CPT are true hedonists, carefree and pathetic. The Fils-AIMÉ government, not living up to its responsibilities, is enriching itself and floundering in demagoguery by making false promises. The announced elections and the so-called referendum are nothing more than trial balloons. It is inconceivable that a scandalized CPT that violates its own agreement can claim to be able to provide the country with a new Constitution and organize elections that will ensure the vote is sincere. This is moral bankruptcy. Based on these facts, we can conclude that the current power holders have no administrative legitimacy. I therefore invite those who are credible in the eyes of the people to come together and position themselves for a truly credible transition that will be administratively legitimate.
2- the preliminary draft Constitution, an ambiguous and discriminatory process
Following the fall of the Duvalier dictatorship (father and son), Haiti adopted a rigid Constitution in 1987. In a state with a rigid constitution like ours, the Constitution can only be revised through a very special procedure. This procedure is provided for in Articles 282 to 284-4 of the 1987 Constitution. And the original constituent power, which is the people, prohibits any "popular consultation aimed at modifying the Constitution by referendum." The Constitution speaks of amendment, which is an Anglicism borrowed from the Americans. This is the revision procedure that falls within the prerogative of parliament. In fact, in what cases can a Constitution be drafted? Publicist doctrine refers to two main cases: the birth of a new state, this is the case for example (Haiti 1805, the imperial Constitution and 1987, the republic, United States 1787 with its federalist system) and when we are faced with the collapse of a political regime like France in 1944 and 1958 with the 5th Republic). There are two other cases: A power that emanates from a coup d'état and all other cases where power is based on authoritarianism. In Haiti, it is the constitutional order that has collapsed. The political regime considered hybrid had already degenerated into a confusion of powers. In this confusion, the Executive and the parliamentary majorities very often plot against the people. In this dynamic of regression, Haiti has become the scene of a series of de facto governments. The lesser evil is to return to the people who must decide on the advisability of modifying the Constitution. But again, there is a risk and I reserve the right to address it eventually.
The proposed amendment to the Constitution is ambiguous. A casual observer can see that no constitutional provision has been shelved. Those in power refuse to take responsibility for this reform, which was achieved by Caesarean section. Despite the outcry over the draft Constitution, no Creole version has been published. This discriminates against more than 80% of the Haitian population who neither speak nor understand French, and constitutes a flagrant violation of Article 43 of the contested draft. What can we hope for in such a situation when experts are incapable of respecting their own work? This draft is a patchwork of the 1987 text and new, very poorly articulated additional provisions. This 240-page text has taken several very interesting points from the 1987 text. Yet, experts are lost in confusion and unnecessary redundancies and inconsistencies.
For example, Article 39 on property rights provides that a law will determine the terms and enjoyment thereof. It is therefore entitled to come up with an Article 59 that will provide details on the real estate property rights granted to foreigners. I am sorry to point out that this reflects a lack of knowledge of constitutional law, private law, investment law, and more fundamentally, that of contracts, which deserves to be reformed. For example, the right of pre-emption taken over and granted to residents of municipalities could be the prerogative of the central power for reasons of general interest. Control will be carried out through notaries through the establishment of an e-administration. This would spare us from diffuse urbanization and the anarchic management of the territory and our arable land. Thus, we will have no problem dealing with foreigners who want to acquire real estate in Haiti since the issue must be resolved from a developmental perspective.
This reform is essential if Haiti is to become an attractive investment destination. Allow me to remind these experts that not everything is covered in a draft constitution. Take the issue of local authorities, an importation from French public law, which is not adequately addressed by the new text. The experts are content to reduce them to two levels without a prior impact study. Consider also the issue of the President of the Republic's swearing-in; Articles 122 and 27 do not agree and undermine the principle of secularism, which is not expressly stated there. As for Article 135 of the draft, the experts have become apostles of our misfortune by predicting "a legislative vacuum." They seem to want Haiti to lack a functioning democracy. In general, state powers are genuine public services that obey the principle of permanence or continuity. It is truly serious to think of a legislative vacuum in a draft constitution. Moreover, the political regime associated with this draft constitutes a significant step backwards from the theoretically democratic achievements of the 1987 text.
The Haitian problem seems to be deeper than one might have thought. Articles 120 and following of the draft on the election of the president provide too many details that should be addressed in an electoral justice code or in a law or even in an electoral decree. Allow me to define the Constitution as a founding text that contains "essentially the rules for the general organization of public powers." Article 172 refers to professors and high-level jurists; it seems that only experts know the criteria for being a high-level jurist; Article 172-4 speaks of "good morality and great probity"; such expressions refer to subjectivization and have no place in a draft Constitution. Furthermore, Article 173 on the electoral council seems to have been written by foreign experts who have no grasp of Haitian reality. Generally, electoral advisers in Haiti have no idea about electoral law or the law of electoral disputes. The presence of Mr. Léon Saint-Louis and so many other experts with expertise in the field could prevent such vulgarities. This article is one of many that will keep Haiti in an indeterminate post-election crisis. Article 207 on administrative careers is very poorly drafted and conflicts with the principle of competitive examinations, which fall under special administrative law. Article 32 provides for a sponsorship system that ignores local realities. This article should prevent fanciful candidacies at all levels. My greatest surprise is that the text is silent on the criminal liability of government members in matters of corruption. The experts have learned nothing from the phenomenon of corruption in Haiti, which is primarily political. At the very least, they should seek information from former parliamentarians of the 50th legislature, particularly those who had the courage to introduce the impeachment of former President Jovenel Moise. This draft Constitution has taken over the High Court of Justice to guarantee total impunity to those who deserve to be tried for the crime of high treason.
However, when it comes to managing the res publica, the principle of accountability in criminal matters and that of financial transparency prove indispensable when we claim to operate in a form of democracy. As for the justice system of the judiciary, the experts have truly gone astray by generally ignoring the real problems facing the judicial system. As for the justice system of the administrative order, we are repeating the same litany that makes it an institution politicized from its inception and incapable of properly fulfilling its mission of control and sanction. I believe I have said everything that could help my country regain its shattered pride. With these few lines, history will remember that I did not sit back and watch over this deleterious and revolting situation.
Translated by CHIP editors
Posted July 9, 2025