OEA/Ser.L/V/II.77 rev.1
doc. 18
8 May, 1990
Original:  Spanish







          1.          The juridical framework and the Commission's doctrine


          12.          The Inter-American Commission on Human Rights has repeatedly referred to the importance of the exercise of human rights in a framework of representative democracy.  The General Assembly of the Organization of American States, too, has adopted many resolutions upholding representative democracy as the system that best guarantees the effective enjoyment of human rights.  That system is, moreover, the form of government explicitly adopted by the Member States in Article 3.d of the Organization's  Charter.  That Article reads, as follows:


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.


          13.          One component of representative democracy is the exercise of the political rights recognized in Article 23 of the American Convention on Human Rights.  That Article provides as follows:


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 proceeding.


          14.          It is important to note that Article 27 of the American Convention on the suspension of guarantees "in time of war, public danger, or other emergency that threatens the independence or security of a State..." does not authorize suspension of the exercise of the political rights listed in paragraph 2 of the Article.


          15.          Meanwhile, in the development of legal doctrine throughout the hemisphere a direct relationship has been repeatedly claimed between the exercise of political rights so defined and the concept of democracy as a form of organization of the State, which in turn presupposes the effective enjoyment of other basic human rights.  The concept of representative democracy is rooted in the principle that political sovereignty is vested in the people which, in the exercise of that sovereignty, elects its representatives to exercise political power.  Besides, these representatives are elected by the citizenry to carry out specific policies.  which in turn implies that the nature of the policies to be implemented has already been extensively discussed (freedom of expression) among organized political groups (freedom of association) that have been able to express themselves and meet publicly (right of assembly).  This all obviously presupposes that all the other basic rights --to life, humane treatment and personal liberty, residence and movement, and so on-- have been guaranteed.


          16.          The effective enjoyment of these rights and freedoms requires a legal and institutional order in which the law takes precedence over the will of the rulers and some institutions have control over others in order to preserve the integrity of the popular will (the constitutional state).


          17.          Many times has the Inter-American Commission stated its position on this major aspect of the exercise of human rights, its connections with  representative democracy and its indissoluble ties to other human rights (see, inter alia, 1978 Report on the Situation of Human Rights in El Salvador, page 126; 1979-1980 Annual Report, page 143; 1980-81 Annual Report, page 123; 1985-1986 Annual Report, page 203; 1987 Report on the Situation of Human Rights in Paraguay, page 103).


          18.          The Inter-American Commission on Human Rights has repeatedly stated its views on various elections held in the exercise of political rights.  These statements have referred to the close correspondence that should exist between the will of the voters and the results of those elections, as provided in Article 23 of the American Convention. In a negative sense, this close correspondence implies the absence of coercion that distorts the will of the voters.


          19.          The Inter-American Commission has considered two types of factors that influence the closeness of this correspondence: those associated with the general conditions in which the election is held, and those deriving from the legal and institutional system that organizes and conducts the elections, that is, everything directly and immediately related to the casting of votes.


          20.          On the general conditions in which elections are held, the Commission's view in its various pronouncements has been that the various political groups shall participate in the election on an equal footing, i.e., that the basic conditions for the conduct of a campaign are the same for all of them.  In a negative sense, there must be no direct coercion or undue advantage for any of the contending parties (see, among other sources, l979-l980 Annual Report, p. 122; 1982-1983 Annual Report, pp. 27 and 28; 1983-l984 Annual Report, p. 119; 1985 Report on the Situation of Human Rights in Chile, pp. 297 and 308;  1986-87 Annual Report, p. 239;  1987 Report on the Situation of Human Rights in Paraguay, pp. 106-107; 1987-1988 Annual Report, pp. 306-308).


          21.          Regarding the legal and institutional system under which the activities involved in an election are carried on, the Commission has examined the laws that regulate the process to determine whether those laws guarantee both the proper casting and the accurate tallying of votes, emphasizing the faculties vested in the agencies charged with carrying out the operations involved in the electoral process and with monitoring both the operations and the election results.


          22.          The purpose of this observation is to detect manipulation, if any, of the process in favor of those who control the institutions (generally the government, a political party, or the military), to determine who decides on the validity of the election (the composition of the electoral agencies) and the controls on their decisions (agencies of appeal).


          23.          The Commission has carried out observations of various aspects of practical operations, such as election records and the conditions or enrollment  in them; the makeup of the electoral boards; the makeup and faculties of the electoral tribunal; and the use of ballots that are easy to understand and contain no messages designed to influence the voter (see 1978 Report on the Situation of Human Rights in El Salvador, pp. 151 and 153;  Seventh Report on the Situation of Human Rights in Cuba, pp. 44, 45 and 48;  1987 Report on the Situation of Human Rights in Paraguay, p.106); and 1986-1987 Annual Report, p. 236).


          24.          The Commission interprets the purpose of universal suffrage as to avert any exclusion on political or ideological grounds.  The Commission holds that this topic should include the consideration of situations that have been preceded by high political and social tension which prompted sizable numbers of people to leave the country (see the Seventh Report on the Situation of Human Rights in Cuba, pp. 44 and 46; 1985 Report on the Situation of Human Rights in Chile, pp. 289 and 290; 1987 Report on the Situation of Human Rights in Paraguay, pp. 107 ff.).


          2.          Background of the haitian situation


          a.          Since February 7, 1986 until September 17, 1988


          25.          The Inter-American Commission has considered in various opportunities the characteristics of the haitian political system and the way in which political rights are exercised.  The high tensions which preceded the exit of Jean Claude Duvalier from the country were followed by the intentions to obtain democracy for the political regime through a serious exercise of human rights.  These intentions, however, have not prospered, clearly, and have been frustrated on many opportunities, at times at the high cost of human lives.


          26.          The following text has the objective of presenting the main targets of the evolution that occurred in Haiti with relation to human rights with the objective of extracting the most important conclusions and proposing the recommendations that would grant in the opinion of the Inter-American Commission on Human Rights adequate attention to these rights.  We must keep in mind that the Commission has already referred in extenso to the evolution that we describe in this text, particularly in the Report of the Human Rights situation in Haiti in 1988, and the corresponding section of the 1988-1989 Annual Report.


          27.          On February 7, 1986, with the departure of Jean Claude Duvalier ended a regime that was characterized by frequent violation of human rights, marked by authoritarism that consisted of the denial of the exercise of political rights.  During the almost 30 years of the Duvalier regime, a complex legal and political structure was instituted which effects on human rights is still felt today.


          28.          In order to manage the transition the National Council of Government was formed, which integrated followers of Duvalier, as well as identifying sectors with democratic tendencies and also, army officials. It should be noted that the National Governing Council had dissolved the Volunteers of National Security, better known as the Tontons Macoutes, which had been a militia in the direct service of the Duvaliers.  Although some of them left the country and others were lynched by the populace in the days following the departure of Jean Claude Duvalier, most of them remained in Haiti, kept their weapons, and became a destabilizing force in society.


          29.          Another transcending measure adopted by the National Council of Government was to convoke a Constitutional Assembly with the objective of elaborating on a new Magna Carta that would be submitted to referendum.  On March 29, 1987, the Constitution drafted by the Constituent Assembly was submitted to a popular vote and approved by 99.8% of the voters.  This Constitution imprints a profound change on the legal and political structure of Haiti, and thus some of its provisions stirred tensions.  Among such provisions, the following should be mentioned:  Article 291, bars persons associated with the Duvaliers' regime  from running for public office for a period of ten years; Article 289, establishes the Provisional Electoral Council, with the extensive participation of large segments of society and empowered to organize elections and to conduct the election process, a task which until that time had been the responsibility of the Army. Article 289 also provides for the separation of the Armed Forces from the State and all of its political functions, as well as a separation of the Police, which was subordinated to the Ministry of Justice.


          30.          Tensions between the military government and the Provisional Electoral Council, whose members officially assumed their offices on May 21, 1987, provoked numerous incidents.  The underlying source of these confrontations lay in the Council's demand for administrative independence but,in conformity with the provisions of the Constitution.  On June 5, 1987, the Electoral Council proposed before the Ministry of Justice an Electoral Law hopeful that the Ministry of Justice would promptly enact it.  On June 22, however, the Government enacted its own Electoral Law with the approval of the Ministry of the Interior in which the powers of the Electoral Council were seriously reduced.  This dispute coincided with the onset of a strike declared by the Autonomous Federation of Haitian Workers, thus producing a situation which coalesced together a number of different issues.


          31.          The acts of violence began to escalate and repression by the Army provoked numerous deaths and casualties.  Also occurring was the renunciation of the leaders on insistent demand for a change in the composition of the National Governing Council.  Following the weeks of violent disturbances and very serious repression, which included the massacre of 300 peasants in Jean Rabel, the National Governing Council issued the Electoral Law of the Electoral Council on August 10, and set November 29 as the date of elections.


          32.          The ensuing period was characterized by nightly violence attributable to death squads and paid assassins where corpses were left out in the open as a warning signal.  The Electoral Council demanded that the military government guarantee public safety so that the elections could be held without disruption, but the Government did not perform its constitutional obligation.  Moreover, the Electoral Council faced countless obstacles in carrying out its responsibilities, including the burning of its offices in Port-au-Prince.  The military government did nothing to address the problems besetting the Council.  Two persons lynched for attempted acts of terrorism were identified as members of the Police.


          33.          On November 29, 1987, elections began in the midst of vandalism and violence that escalated throughout the day and which led the Electoral Council to cancel the election.  Unofficial estimates found that there were 200 deaths and a great many wounded as a result of the action of armed groups of civilians acting with unfettered impunity.  These armed civilians, in many cases, were supported by uniformed soldiers.  Together, they killed defenseless civilians who were waiting in line to cast their votes.


          34.          The National Governing Council proceeded to dissolve the Electoral Council, holding it responsible for the failure of the elections.  The Governing Council then assumed control of the electoral process, and set new elections for January 17, 1988.  It appointed a new Electoral Council, whose members were selected by the National Governing Council, and issued an Electoral Law which failed to adequately protect a secret ballot, among other shortcomings.  The four major candidates for the Presidency refused to participate in the elections, and three other candidates later joined them in the boycot of the elections.


          35.          The elections were held in a calm atmosphere, but numerous and serious irregularities prevailed.  This led important sectors in Haitian society, including the Bishops Conference of the Catholic Church, to disqualify the results.  Candidate Leslie Manigat won the majority of registered votes, despite heavy abstention, and took office on February 7, 1988.  His cabinet was composed of some persons closely linked to the regime of Duvalier, and included the same Minister of the Interior and National Defense who had served in the government of Lieutenant-General Namphy.


          36.          In its press release of March 25, 1988, the Inter-American Commission announced its decision to prepare a special report on the situation of human rights in Haiti, and expressed its hope that the Government would allow it to carry out an on-site visit to that end.  On April 26th, the Government of Manigat invited the Commission to visit the country.


          37.          Several sources of conflict arose subsequently between the civilian Government of Manigat and the Armed Forces, with some of the latter's officers accused of links to drug trafficking.  Tensions mounted to the point that on June 20, 1988, Lieutenant-General Namphy announced to the country, by television broadcast, that the Army had taken over.  He proceeded to announce that he would govern by decree and nullified the 1987 Constitution, declaring that no elections would be held until appropriate conditions had been established.  President Manigat left the country in exile for the Dominican Republic.


          38.          In light of these developments, the Permanent Council of the Organization of American States met on June 29, 1988, to consider the situation in Haiti and adopted a resolution in which, among other things, it requests the Inter-American Commission on Human Rights to examine the situation of human rights in the country in order to present a report to the next regular session of the General Assembly.  In the resolution, the Permanent Council reaffirmed "the full validity of all the principles of the Charter ... those that call for the effective exercise of representative democracy ... and full enjoyment of fundamental human rights."


          39.          When the necessary arrangements had been made, a Special Commission of the IACHR carried out an in loco visit to Haiti from August 29 to September 2, 1988.  The outcome of that visit was the Report on the Situation of Human Rights in Haiti, approved by the Commission on September 7, 1988, which extensively discusses the range of human rights issues, including the background of the Duvaliers' regime, the repercussions of which the Commission believes are still felt in Haiti.  In the Special Report, there is detailed analysis of both historical developments and the legal framework, in particular with reference to the Constitution of 1987, and the situation of a number of human rights affected by the situation in Haiti.


          40.          On September 11, 1988, another act of violence was committed.  The Church of San Juan Bosco in Port-au-Prince was attacked by a large group of armed persons who entered the church and killed 12 parishioners, wounded about 80 others, and set fire to the church.  All of the events took place without any interference by the Army barracks located near the church.  Father Jean-Bertrand Aristide, a well-known critic of the Government, who was conducting mass and was presumably the chief target of the attack, escaped unharmed.  The Inter-American Commission issued a press release expressing its horror at this sanguinary incident.


          b.          Background to the Avril period


          41.          On September 17, 1988, a military coup deposed Lieutenant-General Namphy and installed retired General Prosper Avril, who had served on the first National Governing Council, appointed in part by Jean-Claude Duvalier.  Avril had been forced to resign from his position by popular pressure due to his political background.  Numerous recommendations were made by the political parties to the new government leader.  Among the most prominent of these was a recommendation to restore the validity of the Constitution of 1987; to identify and punish those responsible for several massacres, in particular those that occurred on election day and in the Church of San Juan Bosco; to set up a Provisional Electoral Council to organize new elections; to disarm civilian groups; and lastly, to empower with effective authority, the judiciary.  Efforts to improve the judicial system were made to halt the unjustifiable acts by which the populace was pursuing justice by its own means.


          42.          Some of the early measures adopted by the Avril Government were aimed at defusing the situation and protecting certain human rights.  Thus, the Armed Forces gave notice that private residences were not subject to searches between 6:00 p.m. and 6:00 a.m. and that all procedures of this kind in conformity with the Constitution, would be conducted with a warrant and in the presence of a justice of the peace. The Government also called for the surrender of weapons held by civilians without proper police permits.  In the international sphere, Haiti signed the United Nations Covenant on Civil and Political Rights, as well as the Covenant on Economic, Social and Cultural Rights.  Haiti also signed the United Nations Convention against Torture.  In addition, it nullified the expulsion order against Father René Poirier, a Canadian priest.  It should be noted, however, that despite repeated promises made by General Avril himself to the United Nations, Haiti never ratified the above-mentioned international instruments.


          43.          Soon after assuming power, General Avril announced the establishment of an independent electoral body to undertake the organization of new elections.  On November 3, 1988, the Government issued a draft decree that envisioned the establishment of an electoral council under the authority of the Ministry of Justice.  The draft was rejected by several political figures who regarded it as contrary to the Constitution.  On February 9, 1989, the Government convoked a congress in which 28 leaders of political parties, trade unions, and professional and trade associations participated, in order to come to an agreement on the outline of a new electoral council.  From February 5-7, opposition leaders had held a parallel meeting for the same purpose.


          44.          On February 23, 1989, the Government issued a decree establishing a Permanent Electoral Council, with attributes similar to that called for in the Constitution.  Until it was established, the Executive Branch was to appoint its interim members.  The proposal was accepted by some political leaders, while others opposed it and called for the resignation of Avril.  Others pointed to the prevailing insecurity which made it impossible to convene elections because repression against the peasantry and people's organizations continued by the "chefs de section."


          45.          The advances described above gradually began to lose ground.  As they were weakened by other situations.  First, two well-known leaders of the Tonton Macoutes evaded judicial action:  Franck Romain, former mayor of Port-au-Prince and considered in many quarters to be the organizer of the massacre of the Church of San Juan Bosco, left the country when the Dominican Republic granted him diplomatic asylum.  Also, the Government of General Avril granted him a safe conduct during it, a purely diplomatic matter.  The second leader, David Philogene, who is charged with the murder of known political figure Louis Eugene Athis, was released and allowed to flee to the Dominican Republic.  Second, none of the investigations concerning the murder of political leaders; of voters on November 29, 1987; and of parishioners of the Church of San Juan Bosco were followed through.


          46.          At the same time, social unrest grew stronger, with calls for strikes by the Autonomous Federation of Haitian Workers and alarming levels of violence committed by Armed Groups, producing a monthly list of dead and wounded.  But, the police did not undertake neither effective measures to halt the violence, nor investigations leading to the identification and prosecution of those responsible.


          47.          In March of 1989, the 1987 Constitution was partially put into effect, once again, through a decree, which also permitted the suspension of 36 articles regarded as incompatible with the Government of Avril.  On March 30, 1989, the interim members of the Permanent Electoral Council were elected, and sworn in between March and April.  Also in March, the President ordered the reform of the judicial system by which Avril brought the prison system under the Ministry of Justice.  The Government also called for the resignation and change in posting of several members of the Armed Forces accused of links to drug trafficking.



          48.          This last measure sharpened unrest within the Armed Forces, which had hatched the first coup attempt against Avril on October 14, 1988.  Combined with the unfolding of the events described in the preceding paragraphs, it led to a second coup attempt, begun in the early morning hours of April 2, 1989, in which the Presidential Guard, loyal to Avril, first confronted the Corps of Leopards.  Beginning on April 5, the Dessalines Batallion rose in revolt.  These violent confrontations, of which the exact number of victims is unknown, culminated in the defeat of the rebels and the dissolution of the rebel units.  Also on April 5, the Government imposed a State of Emergency (état d'urgence) and press censorship.  On April 14, the curfew was lifted.


          49.          On June 16, 1989, the decree establishing the Permanent Electoral Council went into effect.  On September 23, the Electoral Council submitted its timetable which allowed from October to December to organize the operational structure of the Electoral Council at the national, departmental, and communal levels and from January to March of 1990 to prepare the census and voter registration rolls.  In April 1990, elections would be held for the Administrative Councils of the Communal Sections (CASCE) at three levels.  In July of 1990, municipal and legislative elections would be held and on October 17, 1990, the first round of presidential elections would be held, finally, on November 11, 1990, the second round of the presidential elections.


          50.          Throughout 1989, however, the social and political situation had sharply deteriorated, with marked insecurity in every aspect of life in Haiti.  Acts of violence, extortion by armed soldiers and serious confrontations in agricultural zones arising from disputes between peasants and landholders produced a monthly roll of dead and wounded.  The Office for the Protection of Citizens, instituted on September 14, 1989, was clearly inadequate to adopt the measures that might have addressed such a dramatic situation.  Information received by the Inter-American Commission describes the lack of initiative of the authorities of that office.





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