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OEA/Ser.L/V/II.74
REPORT
ON THE SITUATION OF HUMAN RIGHTS
CHAPTER
II POLITICAL
RIGHTS1
1.
The constituent and human rights instruments devised by the
inter-American system require that the political organization of the member
States be based on the effective exercise of representative democracy.2
2.
The Charter of the Organization of American States has explicitly defined
democracy to be the only acceptable form of political organization of the Member
States in order for the aims of the Organization to be realized:
Article 3(d):
The solidarity of the American States and the high aims which are sought
through it require the political organization of those States on the basis of
the effective exercise of representative democracy.
3.
The Preamble of the OAS Charter also posits regional solidarity based on
the consolidation of democratic forms of government.
The Preamble states:
Confident that the true significance of American solidarity and good
neighborliness can only mean the consolidation on this continent, within the
framework of democratic institutions, of a system of individual liberty and
social justice based on respect for the essential rights of man;
4.
For its part, the Commission has maintained that within the alternative
forms of government recognized under different constitutions, the framework of a
democratic regime must be the fundamental structure to allow for the full
exercise of human rights.
5.
Article 23 of the American Convention on Human Rights sets forth the
political rights guaranteed by this Convention:
the right to take part in public affairs, the right to vote and to be
elected, and the right to have access to public service.
6.
The Declaration of Santiago of 1959, adopted by the Fifth Meeting of
Consultation of the Ministers of Foreign Affairs, expressed the aspiration of
the peoples of the Americas to live under democratic institutions "free
from all intervention and all totalitarian influence".3
This historic document declared that the "existence of
anti-democratic regimes constitutes a violation of the principles on which the
Organization of American States is founded, and danger to united and peaceful
relationships in the hemisphere".
7.
In order to contribute "to the eradication of forms of dictatorship,
despotism or tyranny" the Meeting of Consultation established certain
"principles and attributes of the democratic system in the hemisphere"
which would assist in a determination as to whether a certain government was
democratic or not. These principles
and attributes are the following:
1. The
principle of the rule of law should be assured by the separation of powers, and
by the control of the legality of governmental acts by competent organs of the
state.
2. The
governments of the American republics should be the result of free elections.
3. Perpetuation
in power, or the exercise of power without a fixed term and with the manifest
intent of perpetuation, is incompatible with the effective exercise of
democracy.
4. The
governments of the American states should maintain a system of freedom for the
individual and of social justice based on respect for fundamental human rights.
5. The
human rights incorporated into the legislation of the American states should be
protected by effective judicial procedures.
6. The
systematic use of political proscription is contrary to American democratic
order.
7. Freedom
of the press, radio, and television, and, in general, freedom of information and
expression, are essential conditions for the existence of a democratic regime.
8. The
American states, in order to strengthen democratic institutions, should
cooperate among themselves within the limits of their resources and the
framework of their laws so as to strengthen and develop their economic
structure, and achieve just and humane living conditions for their peoples.
8.
In application of these principles, the OAS General Assembly, in its
consideration of the reports presented to it by the Inter-American Commission on
Human Rights, has repeatedly, in its resolutions, reiterated:
8.
In application of these principles, the OAS General Assembly, in its
consideration of the reports presented to it by the Inter-American Commission on
Human Rights, has repeatedly, in its resolutions, reiterated:
To those governments that have not yet reinstated the democratic form of
government that it is urgently necessary to implement the pertinent
institutional machinery to restore such a system in the shortest possible space
of time, through free and open elections, by secret ballot, since democracy is
the best possible guarantee for the full exercise of human rights and is a firm
support for solidarity between the states of the hemisphere.
9.
In addition, the OAS General Assembly, at its Sixteenth Regular Session,
held in Guatemala from November 11-15, 1986, adopted a resolution on Human
Rights and Democracy,5 which
states in its operative part:
THE GENERAL ASSEMBLY OF THE ORGANIZATION OF AMERICAN STATES
RESOLVES: 1.
To reaffirm the inalienable right of all the peoples of the Americas
freely to determine their political, economic and social system without outside
interference, through a genuine democratic process and within a framework of
social justice in which all sectors of the population will enjoy the guarantees
necessary to participate freely and effectively through the exercise of
universal suffrage. 2.
To urge the governments of the Americas whose societies have problems
that call for reconciliation and national unity to undertake or continue a
genuine dialogue, pursuant to their respective legislations, with all political
and social sectors until they reach a political solution that will put an end to
conflicts and contribute decisively to improving the human rights situation and
to strengthening the representative and pluralist democratic system. 10.
In the experience of the political organs of the OAS, difficulties, at
times, have arisen regarding the determination as to whether a certain matter is
reserved to the internal jurisdiction of a State.
Some states have taken the position that certain international
obligations need not be complied with, arguing that these matters fall within
the exclusive domestic jurisdiction of the State. 11.
These difficulties motivate the Commission to consider the question of
whether the principle of non-intervention, the cornerstone of the OAS Charter,
is a bar to international examination of certain matters considered by some to
be within the exclusive domestic jurisdiction of the State.
In the Commission's view, as a matter of law, this is not the case where
action is taken pursuant to a treaty to which the concerned State is a party. 12.
Consequently, an issue dealing with human rights is no longer
specifically reserved to the domestic jurisdiction of the State once the State
has become a party to a human rights treaty which deals with that issue.
To invoke the argument that international examination of an action which
was taken by a state with respect to its own citizens is barred by the principle
of non-intervention is to reject the international obligations assumed by the
state when it became a party to the human rights instrument. 13.
The issue of the use of force to support international law must be
considered under the terms of Article 2(4) of the United Nations Charter and
this a separate question which the Commission will not examine at this time. 14.
Pursuant to Article 23 of the American Convention, the Commission now
considers the problem of political rights as they have evolved in Haiti.
The previous chapter examined efforts by the Duvalier family to maintain
itself in power indefinitely by periodic manipulation of the Haitian
Constitution. This chapter analyzes
the emergence of demands for political rights during the waning years of
Jean-Claude Duvalier's administration; the provisions of the 1987 Constitution
as regards political rights; other decrees affecting the exercise of political
rights; the creation and functioning of the Provisional Electoral Council (CEP);
the elections of November 29, 1987; the dissolution of the CEP and the new
elections of January 17, 1988; the installation of the Government of President
Leslie Manigat on February 7, 1988, the coup d'etat on June 20, 1988
headed by Lt. Gen. Henri Namphy, and the coup within the coup of
September 17, 1988, which resulted in the installation of the current President,
Lt. Gen. prosper Avril. a.
The political situation in 1985
15.
By 1985 President Jean-Claude Duvalier's Presidency-for-Life had become
the single dominant political issue in Haiti.
As early as April 19, 1985 three "political leaders' issued a
declaration demanding, inter alia, "that the Constitution of August
27, 1983 be amended and the Presidency-for-Life abolished".6
16.
President Duvalier's reply was his April 22, 1985 speech in which he
announced the fact that he had taken "the irrevocable decision to modernize
the Haitian political system" by progressively putting in place the
institutional structures which correspond to the norms of liberal democracy and
"respect the particular characteristics of the Haitian people".7
17.
The widespread disillusion with, and criticism of, the constitutional
amendments which were approved by the Legislative Chamber on June 6, and the
political parties law on June 9, led one political figure, Hubert De Ronceray,
to launch his attack on the Presidency-for-Life.
18.
De Ronceray stated that the political parties law could be summarized in
three points: 1.
One can organize a political party but one does not have the right to
organize an opposition party to the Government of Jean-Claude Duvalier. 2.
No political party can aspire to take power by democratic and
constitutional means. The only
elective offices are those of deputies (Congressmen), mayors and rural
administrators. 3.
A political party has no financial, ideological, doctrinal or political
autonomy. It depe3nds exclusively
on the decisions of the Minister of Interior and national Defense which at any
time can order the suspension of its activities.
19.
The result, stated de Ronceray, was that "the raison d'être
and the purpose of a political party were denied and refused.
One dressed with other words a one party dictatorship".8
20.
De Ronceray, by letter dated June 5, 1985 to the Minister of Interior and
National Defense requested authorization to organize "in the name of the
Haitian youth" a peaceful march, without arms, towards the National Palace
for he purpose of calling for the abolition of the Presidency-for-Life, and for
the organization of presidential elections by direct suffrage.
21.
At 4:00 p.m. on June 17, 1985 the Haitian Government issued a communiqué
prohibiting the demonstration and deployed 5,000 troops throughout
Port-au-Prince to ensure that the demonstration not take place.
The Haitian government's communiqué9 prohibiting the march
stated in relevant part:
The Government is obliged to refuse the requested authorization and has
decided to prohibit said march for the following reasons:
1. violation
of the constitutional order
2. violation
of public order ("l'ordre public")
3. violation
of police laws on public meetings
4. call
for foreign involvement in the political life of
the State The
demonstration, which was to be held in front of the National Palace, would have
been the first such challenge to the "Presidency-for-Life". b.
The Referendum of July 22, 1985
22.
The political criticism leveled against President Duvalier's
constitutional amendments and the law on political parties motivated Duvalier on
June 27, 1985 to call a national referendum.
The Haitian people were asked to: Please
express your views through this Referendum on both the amendments to the
existing Constitution of 1983 and on the new law regulating the functioning of
political parties. The most
significant of these changes include:
A.
A Presidency-for-Life including the right to designate a successor.
B.
The creation of the post of Prime Minister.
C.
An increase in legislative influence over the government.
D.
An official encouraging of the development of political pluralism.
Do you agree with this new political system?
23.
The "political leaders", which had increased to five by this
time, on July 1, 1985 united to produce a historic joint communiqué demanding
that the July 22 vote become a national referendum on one question:10 ARE
YOU YES OR NO FOR THE PRESIDENCY-FOR-LIFE?
24.
The opposition leaders threatened to boycott if the Government ignore
their demands.
25.
The Government claimed that 99.98% of the population had voted in favor
of the political changes. The
Government had sought to disarm the "opposition", but, in fact, by
announcing 2,375,011 YES votes and 448 NO
votes in a nation of approximately 2,600,000 eligible voters, in a
climate of what has been described as one of "massive apathy and
abstention" by foreign observers, the Government belied its own
"triumph".11 According
to one foreign observer12:
Throughout the morning, packed buses were seen bringing people to vote at
City Hall and taking them away. Some
journalists followed one bus and said it stopped at three other polling places
and waited while the passengers voted. (…)
Voters were not required to give their names or show
Any kind of identification and no list was kept of who voted.
26.
The very fact of seeking public legitimacy for a de facto
rule which had existed in Haiti for over two decades, placed the issue of
legitimacy in the public arena. Mr.
Jean-Marie Chanoine, Minister of State for the Presidency, Information and
Public Relations, stated on television, following the turnout of the referendum,
that the opposition had two choices: either
to leave the country or to support the Haitian Government. c.
Increasing demands for President Duvalier to step down
27.
In spite of the formal and informal impediments to effective political
opposition in Haiti, such opposition continued to mobilize throughout 1985
having created the issue that alone was able to unify it:
the ouster of Duvalier. Grégoire
Eugene became the first candidate to present his party's view of a new society
in a book published July 22, 1985.13
His views inter alia called for an elected presidency, for
a seven year term, without possibility of re-election.
28.
On August 23, 1985, 117 former ministers, Congressmen, military figures
and supporters of President Duvalier formed a political party based on
"Jean-Claudisme". This
party was named the National Progressive Party, and its "leaders"
requested on September 5, 1985 its registration.
29.
On September 2, 1985, a letter signed by 381 youths invited the 5
opposition leaders to travel to the provinces and meet with the population of Léogâne,
Petit Goâve, Miragoâne, Aquin, Cavaillon, Cayes and Marigot in order to carry
on a dialogue about the problems of Haiti.
Mr. Hubert de Ronceray, Rev. Sylvio Claude and Mr. Alexandre Lerouge
responded that they would be favorably inclined to travel during the second week
of September.
30.
In fact, when Mr. Hubert de Ronceray, embarked on his "tour"
he, his wife and three other members of his group, when they reached Petit Goave,
were placed under what the police termed "protective custody"
effectively preventing him from speaking to his supporters.
The following week he was again prevented from meeting his supporters as
he attempted to travel to Jacmel. d.
Mr. Grégoire Eugene's Defection
31.
Following the arrest of Mr. Hubert de Ronceray as he attempted to travel
to the provinces, Mr. François Guillaume the newly appointed Minister of
Interior and National Defense, informed Grégoire Eugene, by letter dated
September 17, 1985, that if he wished to carry out political activities
he should carry out the formalities required by the political parties law.
Mr. Eugene responded, by letter dated September 25, 1985, that his
attachment to "political pluralism, democratic convictions, his legalist
vocation and his religious respect for the Constitution" prohibited him
from complying with the formalities imposed by the political parties' law.14
32.
Notwithstanding the above, on November 7, 1985, Mr. Grégoire Eugene
sought to register his party with the Ministry of the Interior.
One of the reasons given for his change of mind was that, once having
requested registration, Mr. Eugene could proceed to travel to the provinces and
recruit members for his party.15
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1.
Article 23 of the American Convention provides:
1) Every citizen shall enjoy the following rights and
opportunities: a.
to take part in the conduct of public affairs, directly or through freely
chosen representatives; b.
to vote and to be elected in genuine periodic elections, which shall be
by universal and equal suffrage and by secret ballot that guarantees the free
expression of the will of the voters; and c.
to have access, under general conditions of equality, to the public
service of his country. 2)
The law may regulate the exercise of the rights and opportunities
referred to in the preceding paragraph only on the basis of age, nationality,
residence, language, education, civil and mental capacity, or sentencing by a
competent court in criminal proceedings.
2.
See, for example, the Preamble of the OAS Charter, Article 3, (d) of the
Charter, Article XX of the American Declaration of the Rights and Duties of Man,
and the Preamble of the American Convention on Human Rights.
3.
See, OEA Quinta Reunión de Consulta de Ministros de Relaciones
Exteriores, Actas y Documentos, Santiago de Chile, 12-18 August 1959.
(1961) 4.
The most recent expression is in the Resolution adopted on November 15,
1986, AG/RES. 835 (XVI-0/86). 5.
AG/RES. 837 (XVI-0/86). 6.
This "Joint Declaration of the Leaders of the Opposition in Haiti
was signed by Sylvio Claude, Hubert De Ronceray and Alexandre Le Rouge, and
demanded: "We demand from the
Government of the Republic: a) that the Constitution of August 27, 1983 be amended and the
presidency for life abolished; b)
that a Constituent Assembly is formed, representing all political
ideologies and charged with drawing for Haiti a new fundamental Charter;
c) that the law on the
organization of political parties is submitted for the consideration of the
leaders of the opposition; d)
that the electoral law is decreed and general elections declared all over
the national territory. 7.
For the entire text, see: Le
Petit Samedi Soir, April 27-3, 1985. 8.
Inferno: "Hubert
De Ronceray lance un appel a l'unité de l'Opposition".
Vol. II, No. 15, 1-15 July 1985. 9.
Le Nouveau Monde, June 18, 1985. 10. The five
leaders are: Hubert De Ronceray,
Sylvio Claude, Grégoire Eugene, Constante Pongnon (who formed a party called
PADRANA in June 1981) and Alexandre Lerouge (Former Congressman from Cap Haitien). 11. Referenda are
not unusual in Haiti. In 1964 François
Duvalier asked the people to confirm his adoption of the presidency-for-life,
and the Government stated that the vote was 2,800,000 in favor, 3,232 against. In 1971 a poll was called to approve Jean-Claude Duvalier's
succession. According to the
Government the result was 2,391,916 votes in favor and none opposed. 12. "Fraud is
charged in Haitian voting", Joseph B. Treaster, New York Times, July 23,
1985. 13. Grégoire
Eugene: Le Miracle est Possible
(Un Plaidoyer pour Le Développement) (1985). 14. Letters
published in the "Haiti Observateur" newspaper, October 4-11, 1985. 15. Le Petit Samedi
Soir: "Le Leader Grégoire Eugène
après la demande d'enregistrement de son parti, fait des declarations
pertinentes au Petit Samedi Soir". 16-22
November, 1985. |