A political and constitutional debate
The President of the Republic, Jovenel Moïse, anticipated the crisis. During his speech on May 18, 2020, on the anniversary of the 217 years of the Haitian flag, he affirmed that the day marked three years, three months and eleven days since he has been in office.
For the presidential camp, the mandate of Jovenel Moïse ends on February 7, 2022. They are basing this date on article 134-1 of the constitution which provides that “the duration of the presidential mandate is five years. This period begins and ends on February 7 following the date of the elections ”.
The president was admittedly sworn in on February 7, 2017 but the process leading to his installation at the National Palace began on October 25, 2015. The electoral contests of the time were marked by controversy. The candidates who participated in them denounced massive fraud. They obtained the cancellation of these elections which were continued in 2016.
The article 134-2 of the constitution specifies that “the elected president takes office on February 7th following the date of his election. In the event that the ballot cannot take place before February 7th, the elected president takes office immediately after the validation of the ballot and his mandate is supposed to have started on February 7th of the year of the election.’’
It is not for the OAS to set the mandate of the president.
“Even if the elections which brought the president to power were carried out late, it was the 2015 electoral process that was continued in 2016” said André Michel, a political opponent and unsuccessful candidate for the last presidential elections.
Based on the constituition, the opponents of power and various constitutional experts believe that the mandate of the President of the Republic was supposed to begin on February 7th , 2016 due to the holding of elections in October 2015. “The constitutional mandate of President Jovenel Moïse will end on February 7, 2021”, said André Michel.
Jovenel Moïse’s legal attorney, Raynold Georges brushed aside these considerations. The duration of the presidential mandate is five years if you say that one begins to count the expiry from the date of swearing the oath (contrary to what the Constitution of 1987 amended).
Lapse of parliament noted by the president
In a letter sent on May 26, 2020 to the heads of diplomatic missions, Claude Joseph the Minister of Foreign Affairs of the current sitting government confirmed the desire of the President Moïse to occupy the national palace until 2022.
Through this correspondence, Claude Joseph gave instructions to the heads of diplomatic missions to inform international bodies about President Moïse’s desire to organize the elections and install his successor as the head of the country on February 7, 2022.
However, in a tweet published January 13, 2020, by his excellency, President Jovenel Moise said he noted the end of the mandate of senators (one-third senate) and the lapse of parliament. In doing so, the political opposition believe that the president has tacitly admitted that the mandate is not a matter of date, but rather a legal and constitutional issue.
“The president knows that there was no parliamentary reopening in 2014″, said the former senator, Youri Latortue. The re-entry took place in 2016 and the senators whose terms expire in 2020 were elected for six years ”. Despite their protests, these senators still left parliament.
Latortue believes that the president is trapped since he was the first to recall that the mandate of one-third of the senators ends on the second Monday of January 2020.
For Mr Gédéon Jean, Esq. at the Center for Analysis and Research in Human Rights (CARDH), “the period of the presidential mandate is not according to the calendar or counted from the date of entry into office. The mandate is written into the constitutional timetable.”
Also, continued Jean, “regardless of the late realization of his election, the end of his mandate will be the second Monday of the fifth year of his mandate”.
Mirlande Manigat is positioning herself
Constitutionalist Mirlande Manigat also spoke out on the expiry of President Moïse’s mandate. In her analysis, Manigat demonstrates that the 2016 election was a continuation – not the initiation of a new process.
“The fact that the winner was not sworn in until February 7th , 2017 does not introduce a legal gap with the elections or a protocol impropriety. Therefore, legally in accordance with the constitution, the mandate of President Moïse began on February 7th , 2016 and ends five years later, on February 7th , 2021 ”, supports the leader of the political party Rally of Progressists National Democrats (RDNP).
A specific context
There is a context that has prevailed since the presidency of Réné Garcia Préval. Installed in May 2006, President Préval chanted, throughout his presidency, that he would carry out his mandate day to day.
The former President Réné Garcia Préval did not have to face the problem of the length of his mandate during his administration “because he had settled this problem from the outset, through negotiations, with parliament and actors from different sectors of national life”, said Joseph Jacques Jasmin, who specializes in public law.
The other precedent which does not work in favor of Jovenel Moïse comes from his predecessor. Despite the late installation of President Joseph Michel Martelly in May 2011, he handed over power on February 7, 2016. Since then, the country has become bogged down in failures to respect constitutional time and electoral time.
The fact that the winner was not sworn in until February 7th, 2017 does not introduce a legal gap with the elections or a protocol impropriety.
“This is how the problem of mandates persists and becomes perennial and causes a lot of damage to governance in Haiti ” denounced Jasmin, who further mentions that political decision-makers have never organized the elections within the time limits provided for by the constitution.
“We must reconcile constitutional time and electoral time in order to harmonize what the constitution and the law say. As soon as there have been no negotiations or other political artifices to rule on the duration, the elected representatives will lose part of their mandate to meet the constitutional deadline,” said Jasmin.
The CEP remains silent
While the debate remains lively, the CEP (Provisional Electoral Council)has not minced its words on the expiry of the mandate of the president of the Republic. AyiboPost tried in vain to get in touch with the former president of the council, Léopold Berlanger.
However, article 239 of the electoral decree of March 2, 2015 takes up the idea established in the constitution. “To harmonize constitutional time and electoral time, on the occasion of elections organized outside constitutional time […], the mandate of the President of the Republic must end on February 7th of the fifth year of his mandate, regardless of the date of his entry into office”.
While the CEP is silent, the international allies of power begin to speak out. For Luis Almagro, Secretary-General of the Organization of American States (OAS), “the mandate of President Jovenel Moïse will end on February 7, 2022”. This position is expressed in a press release published on May 29, 2020 on the OAS website.
“It is not for the OAS to set the mandate of the president. This declaration violates the fundamental charter of the OAS which prohibits this body from intervening in the internal affairs of member countries, ”said Michel, who thinks that this declaration is the opinion of the Secretary-General but does not reflect the collective view of the OAS member states.
With the current economic and health crisis in Haiti, the question of the organization of elections remains unclear; despite the government’s rush to provide citizens with the controversial new identification card (distributed by Dermalog).
“We must also raise awareness of the danger of the post-Jovenel Moïse era which will probably be marked by two non-existent powers: executive and legislative”, said Jean.
Jean continued, “We have to agree today to prepare for the transition. With this endless transition, will we, therefore, go to the Court of Cassation or other forms of transition?”
Emmanuel Yves Moïse