June 2009

by Vivienne O'Connor, USIP Specialist

A couple of days into my trip to Haiti, a young student casually inquired about why I was visiting his home country.  I told him that I was here to speak at a conference on criminal law reform in Haiti. His reaction was quick and to the point: “How can you do that? What do you know about the Haitian context?”

He was quite correct. What do I know about Haiti? His sharp question put me on the spot and required me to justify to him my presence in his country. I came to Haiti to provide support on criminal law reform efforts, but that would have been a rather empty and technical answer to his question. I began to think about how I was going to try to explain why I was in Haiti in a way that would be relevant to him and his community. After all, I, like many others at USIP, believe that our work should seek to demonstrably improve the lives of ordinary citizens in countries like Haiti.

Criminal law reform can be seen as a highly legalistic exercise and a process that is generally far removed from the lives of ordinary citizens. International specialists who engage in this process are often even more removed.

Reform efforts may be prompted by a peace agreement or extraneous reasons such as global or regional security.  While these reasons are certainly important, criminal law reform also has the potential to profoundly and positively affect the daily lives of ordinary citizens, like this young student, and their experience of justice and rule of law. 

Generations of Haitians feel that the laws and the justice system do not work for them. Before Haiti’s independence from France in 1804, the judicial system and its laws protected only the colonial powers and its aristocratic citizens. 

Haiti gained independence when it won the world’s only successful slave revolt, making it the first post-colonial country to be governed by blacks.

Despite such extraordinary beginnings, this aristocratic class became the rich and powerful of Haiti. Poor people’s experiences with law and justice have not changed significantly over the past 100 years. 

In fact, except for some small amendments, the criminal laws of Haiti have not been amended since 1826 when the French colonial powers brought the Napoleonic criminal codes into effect. These Leviathan laws were relevant in France in the early 19^th century.  But for a far-flung colony, like Haiti, their relevance for those living in an independent Haiti of the 21^st century is questionable at best. 

Not only do the existing laws represent the remnants of a former colonial power, they are also associated with a series of dictatorial regimes, like that of François “Papa Doc” Duvalier, which engaged in mass violence and human rights abuses during his rule from 1957 to 1971.

That’s just the tip of the iceburg for problems with Haiti’s laws.

Haiti’s criminal laws predated the development of an international system to protect human rights and so they do not reflect such basic standards that the international community widely believes will protect citizens.

Persons awaiting trial in Haiti can languish in pretrial detention for years, forced to remain in prisons where conditions could be described as inhumane. There are numerous reports of mistreatment and torture committed by the police which go unaddressed.

Certain criminal offenses also violate the rights of ordinary Haitians to freedom of speech. For example, it is a criminal offense for religious ministers to criticize the government in written materials or to exchange information with foreign powers on issues of religion.

The right to freedom of association is also weak under Haitian law. Twenty people or more who gather to discuss religion, politics and other matters without the government’s permission could be prosecuted. As well as their failure to protect the rights of all Haitians, the criminal laws do not adequately protect particular groups such as women on issues like rape and domestic violence. Nor do they protect children who for one reason or another come into contact with the justice system.

There is a movement afoot in Haiti to transform the country’s criminal laws: how these laws protect people and what the laws represent to people.

From what I saw during my trip to Haiti this month, there is now much commitment, momentum and energy to change the laws and justice system coming from all segments of society -- from within the justice system and the legal community itself, from civil society to the ordinary person on the street.  In the past, this passion and drive to bring about change wasn’t as strong, and we have seen several attempts at law reform efforts fail.

However, this time – according to those who experienced these unsuccessful attempts – something is different. Importantly, this movement now has strong and high-level political support all the way up to Haitian President Rene Garcia Preval.

At the conference in Haiti I attended about the modernization of Haiti’s criminal laws – called the Technical Workshop on Modernization of the Criminal Code and the Criminal Procedure Code -- we heard the minister of justice speak about how new laws will protect the human rights of all people.  The views of the Haitian public were also represented during the conference upon the presentation of the findings from a two-year consultation process with civil society and the Haitian population.

This study revealed that what people want are laws that reflect the needs of the community, that provide better access to justice,  and that protect the dignity of prisoners as well as women and children under criminal law. The special adviser to the president also emphasized that new criminal laws should be easy for the general public to understand, and the new laws should combat impunity and foster trust in and respect for the institutions of justice and rule of law.

The process of drafting and passing new “people friendly” criminal laws is a difficult one but it is certainly not impossible.

The role of organizations like USIP is to work with the national actors engaged in the reform process by supporting them and responding to requests for assistance – as opposed to telling them what we think is best for Haiti or by imposing external solutions on Haitian problems.

In the case of Haiti, USIP is sharing with lawmakers a law reform tool – the “Model Codes for Post-Conflict Criminal Justice” book -- that we developed in cooperation with the Irish Centre for Human Rights, the U.N. High Commissioner for Human Rights and the U.N. Office on Drugs and Crime. USIP also facilitates the sharing of experiences with criminal law reform efforts in other countries and is connecting Haitian lawmakers to a network of experts from around the world who can also support the reform process.

Getting back to the young student and his smart question: I told him that I am in Haiti to share my experiences and potential solutions to the criminal law reform process  have worked in other locales. That is not to say that those solutions should resonate with or be adopted in Haiti, but at least they provide a starting point for discussion and a useful frame of reference from which to conceive a new system of law and justice in Haiti that will hopefully improve the lives of everyone in Haiti. The student looked at me, and nodded in understanding as if to say, “yes, now that makes sense.”

While in Haiti I heard stories of people being picked up on the street without just cause, getting arrested by the police and kept in police detention for days unknown to their families.

On the airplane home from Haiti, a gentleman sitting next to me talked about how his friend’s husband had been arrested three weeks ago on the basis of unfounded accusations by a very wealthy family. The husband remains in detention without any proof of his alleged crime.

Criminal law reform efforts aim to make these stories of the past and not the future of Haiti. Haiti is a vibrant and beautiful country. Even through colonial rule and years of conflict, the creative spirit of Haitians continues to flow through art and culture. And I see this same creative spirit being applied to the criminal law reform process in which national actors -- with some help from international organizations, like USIP -- strive to achieve goals like fairness, equality and justice for all Haitians.