Hefty jail time, fines in decrees spark concern in Haiti

Robert S. Hays

A chest-thumping Jovenel Moïse was taking on an adversary in Haiti’s business community, blaming him for the country’s electricity woes, when he decided to clear up any doubts about the extent of his presidential power.

“I don’t see how there is anyone, after God, who has more power than me in the country. I am the president,” the president said in a now infamous and often quoted “Aprè Dye” speech during a July tour of northern Haiti.

In the 11 months he has been running Haiti without the checks and balances of a parliament, Moïse has been amassing an enormous amount of power that is alarming everyone from opposition figures, to human rights and democracy defenders, to the European Union and now, Washington.

Once so paralyzed by anti-government protests that he was confined to his home in the hills above Port-au-Prince, Moïse, 52, is using one-man rule to exude a populist image and issue a cascade of worrying legislation that critics say he wouldn’t have dared send to parliament, even though he and his Haitian Tèt Kale Party (PHTK) and allies controlled both chambers. At the same time, he is lobbing attacks at unnamed members of the private sector and the country’s elite, and dismissing the international community’s concerns.

“Presidential rule by decree has resulted in some decrees that can adversely impact the lives of the Haitian people,” said a State Department spokesperson. “The United States continues to urge Haitian President Moïse to exercise restraint in issuing decrees, only using that power to schedule legislative elections and for matters of life, health, and safety until parliament is restored and can resume its constitutional responsibility.”

A protester holds up a sign demanding that the support of armed gangs in Haiti cease, in Port-au-Prince, Haiti, Thursday, Dec. 10, 2020. Dieu Nalio Chery AP

Haiti’s parliament stopped being a political force in the nation on the second Monday in January, when Moïse announced on Twitter that the terms of the entire Lower Chamber of Deputies and all but 10 senators had expired. Because Haiti failed to hold required elections in October 2019, there were no successors to replace lawmakers, leaving the president as a one-man ruler.

Since then, he has resisted calls from the United States and the Organization of American States to hold overdue elections as soon as technically feasible, opting instead for an overhaul of the constitution that he plans to have Haitians vote on by referendum.

Until then, he is re-doing the legal architecture of the country with his own legislation. In the past month, Moïse has issued two troubling decrees that led to the Trump administration and others in the international community taking the rare step of publicly rebuking his administration.

One decree establishes a domestic intelligence agency accountable only to the president. The other, under the guise of reinforcing public security, redefines common crimes like theft, throwing garbage, burning barricades on roadways and destroying public and private property as terrorism punishable by a hefty fine and 30 to 50 years imprisonment.

“Recent decrees creating a domestic intelligence agency, not subject to judicial review, and establishing rules on the use of force against protesters are overly broad and can be used for repression,” the State Department spokesperson told the Miami Herald.

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A protester holds a print out of the Change.org petition demanding that Haitian President Jovenel Moise rescind a decree rewriting Haiti’s 1835 penal code. Protesters marching against gay rights in Port-au-Prince, Haiti, Sunday, July 26, 2020 say the code now recognizes same-sex unions and tacitly allows homosexuality. The government says it does not. Dieu Nalio Chery AP

Characterized by the National Network for the Defense of Human Rights as “downright astounding,” the two decrees are not the only thing Haitians find troubling..

In a country suffering from systematic attacks by armed gangs, kidnappings for ransom and threats against human rights advocates, Haitians fear Moïse’s use of decrees is further undermining Haiti’s fragile democracy.

Thirty-three years after the end of the nearly 30-year Duvalier family dictatorship, many fear their latest president may be on the same path as the brutal regime that used repression and secret militia to persecute opponents.

Outside of the Haitian constitution

“The actions being taken by Jovenel are eerily similar to what [Francois “Papa” Doc] Duvalier was doing when he took the country along the route of dictatorship,” said former senator and human rights advocate Samuel Madistin as he cited the similarities between Moïse’s decrees and what he said were 142 decrees taken by Duvalier in a six-month period before Haiti became a dictatorship.

“He modified a bunch of decrees on national life in Haiti, the same way Jovenel is doing,” Madistin said about Duvalier, who began his brutal regime in 1957 and remained in power with the help of his feared secret police, known as the TonTon Macoute. “Once you have a president who doesn’t respect the fundamental rights of a citizen, he doesn’t respect the laws of the constitution, he’s nothing other than a dictator. What’s happening here is a repeat of history.”

While some of Moïse’s executive orders like the one establishing a state of emergency to fight the coronavirus or another on marital property have not been controversial, others have been. They are being construed as an affront on civil liberties and opening the door to repression because they impose heavy fines and long prison sentences without lawmakers having had a say.

In several of the more egregious acts, Moïse has whittled away at the power and independence of autonomous institutions like the judiciary, the state university, the provisional election council and the Superior Court of Auditors. The latter, an anti-corruption government watchdog agency, became a target after questioning a government no-bid contract with General Electric. Its powers have since been limited to allow Moïse and his team to unilaterally sign such questionable contracts as one with a Turkish-American outfit for electricity barges.

Not since the Duvalier regime, critics say, has a Haitian president held such control over all of the country’s institutions.

Protesters, medical professionals, and political opponents demonstrate during a demonstration demanding the resignation of President Jovenel Moise in the Haitian capital in Port-au-Prince on Oct. 30, 2019. VALERIE BAERISWYL AFP via Getty Images

The National Network for the Defense of Human Rights say they have documented 38 decrees published in the government’s official journal, Le Moniteur, since January.

Frantz Duval, the editor of Le Nouvelliste, the country’s daily, said reporters have actually found 44 executive order since January, and another 110 other actions known as arrêtes, which are usually are taken to respond to an ongoing situation.

Meanwhile, Haiti’s constitution, he said, does not give a president the power to rule by decree, and it has only been used on a limited basis by previous regimes to put into law legislation parliament failed to act on or for emergency measures.

Among Moïse’ other acts:

He has appointed his own prime minister and cabinet without a political consensus from the opposition; fired one police chief and hand-picked the other despite questions about his legitimacy for the post; appointed numerous ambassadors without parliamentary ratification; replaced all of the elected mayors with appointed interim agents in Haiti’s 141 municipalities, and most recently, expanded his poverty-stricken nation’s diplomatic footprint into Morocco’s western Sahara region with a new embassy in Rabat and a consulate in Dakhla.

Through the decrees, Moïse has also accrued power for himself outside of the constitution and established his own institutions, including an election commission, a constitution-drafting committee and the new National Intelligence Agency, whose secret agents would be totally immune from the country’s judicial system.

Moïse has long complained that Haiti’s current constitution gives more power to parliament than the executive. But even before parliament’s dismissal, Moïse often ignored their constitutionally mandated role and kept control over key officials by not sending them for ratification and retaining them as interim posts.

He did this with a previous prime minister and a police chief, the current head of the central bank and the new board of the state bank.

“There is no countervailing power to counteract the power of the president,” said Duval. “The president is deciding on his own and when people scream, ‘Oh my God,” the president is reluctant to undo what he’s done.”

Whenever he has challenged on violating the constitution, Moïse has responded that the current 1987 Magna Carta has made Haiti ungovernable, and that his job as president is to think for the people who elected him and do what’s good for them.

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A protester carries a sign directed at the U.S. as he walks between burning tires in Port-au-Prince, Haiti, Friday, Oct. 4, 2019. Rebecca Blackwell AP

Moïse came into power in 2017 in one of the lowest-turnout Haitian presidential elections that had been the subject of fraud allegations, cancellations and rescheduling. Though he garnered less than 600,000 of the 1.1 million ballots cast, he has been unfazed, taking to the job as if his election were a sweeping mandate from the country’s then 6 million voters.

Taking to Twitter last week, Assistant Secretary of State Michael Kozak publicly voiced the United States’ concerns about Moïse’s “continued erosion of democracy in Haiti,” following a pointed statement by Port-au-Prince-based foreign diplomats, known as the CORE Group, in the wake of the decrees on terrorism and the intelligence agency.

“The United States,” Kozak tweeted. with the CORE group’s statement attached, “isn’t alone in our concern for the continued erosion of democracy in Haiti, the absence of legislative elections and rule by decree.”

The State Department spokesperson added this week: “A strong democracy requires strong checks and balances, and we believe an elected parliament is crucial for the stability of Haiti. We have repeatedly expressed concern to the Haitian government about extended rule by decree.”

Guichard Doré, an adviser to Moïse, recently announced that changes will be made to some of the 73 articles in the controversial decree on the establishment of the National Intelligence Agency.

But Doré gave no indication that the government intends to cease the issuance of legislation. Earlier this month, another decree was published. This one places a 15 percent cap on profit margins businesses can make on the sales of basic commodities, and calls for prices to be displayed in gourdes, the national currency, not U.S. dollars. Violators, according to the decree, will be subject to fines and jail time.

Critics worry that on top of these new punishments, the decrees foreshadow the extent of presidential power Haitians can expect to see in the new constitution Moïse is pushing.

“These decrees that have been published run counter to the spirit of the constitution of 1987 that is currently in existence, and we are asking ourselves if this spirit will prevail in the constitution the president would like to create,” Duval said. “If that’s the case, we will come out of the liberal spirit that we had before and enter one that is a bit tougher.”

Duval said the three-person constitution-drafting committee, which the president has said is independent, will have no other choice but to follow Moïse’s lead and present a document whose parameters have already been defined by the published executive orders that favor repression.

‘Jovenel style Democracy’

In repeated interviews in the Haitian press, Moïse insists that he is not a dictator. Yet the tenor of his statements and of those close to him tell another story and unmask an authoritarian propensity, critics argue.

In an interview last month on the program Le Point on Radio/Television Metropole, Moïse defended his decision to redo the constitution. He implied that as president, he has been given certain rights by voters and challenged the notion that his powers are limited under the law.

“So a constitution has more power than the Haitian people?” he said. Somebody, he later added, has to speak “for the silent majority.”

Soon after, Haitians were further taken aback when a video clip of First Lady Martine Moïse surfaced with her referring to herself as the wife “of the Father of the Nation.”

And then earlier this month, Moïse himself referred to the democracy that he is building in Haiti as “Demokrasi a la Jovenel.” The statement was made during a radio interview where Moïse, referring to himself in the third person, said “President Jovenel Moïse has no dictatorial inclinations.” He also argued Haiti’s rights to have an intelligence agency, saying its function is no different than that of the FBI or the Drug Enforcement Administration.

Responding to the international community’s concerns, he said, “when I take a decision, I assume it as head of state, the president of the republic. All my decisions are made for the well-being of the people.”

Around the same time, Moïse’s minister of justice, Rockefeller Vincent, responding to the U.S. critique and its recent sanctions against two former Haitian officials and a police officer implicated in a 2018 massacre in Port-au-Prince, verbally attacked two human rights groups. He accused them of fabricating reports and lobbying against the government.

“The potential for gross abuse is self-evident,” said Eric Farnsworth, vice president for the Council of the Americas and a former U.S. State Department official. “Democracy with Haitian characteristics, or Moïse’s characteristics, that’s not democracy at all.”

Farnsworth noted that Haiti is no stranger to strong-man rule, which makes the ongoing developments worrisome.

“One would hope that any government would be extra mindful of the potential for abuse and not go down that road. But apparently that’s not the case here,” he said. “The countervailing pressure here would be the international community, of course, which generally means the United States. Speaking from a Washington perspective, it’s hard to see between now and the foreseeable future that these types of issues would rise to the level of top priority in Washington. Therefore you have to assume he might get away with it.”

Moïse has the advantage of an opposition in disarray and a foreign community with no clear policy on Haiti, except the desire to avoid another major crisis.

While Farnsworth is reluctant to say Moïse is another Hugo Chávez or Fidel Castro in the making, it’s hard to overlook the warning signs.

“If you’re comparing yourself to God, you’re not going to come off favorably in that comparison. There’s a real lack of self-awareness in that,” Farnsworth said. “Clearly some of the things that allowed for the consolidation of dictatorship in Cuba and in Venezuela appear to be working now in Haiti.

“Continuation down this path, particularly with the lack of the ability of the international community to affect it, would be very concerning. He was elected, but so was Chavez. He was elected too and we remember what he did to get into power and to consolidate power.”

Profile Image of Jacqueline Charles

Jacqueline Charles has reported on Haiti and the English-speaking Caribbean for the Miami Herald for over a decade. A Pulitzer Prize finalist for her coverage of the 2010 Haiti earthquake, she was awarded a 2018 Maria Moors Cabot Prize — the most prestigious award for coverage of the Americas.

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