Author: Gabrielle Bardall
Haitian elections face a profound crisis of public credibility and confidence. Although Haitians consider elections to be an important instrument of political and social change, there is a widespread belief that neither the electoral process nor the political leaders are conducive to voter participation. [1]
On 12 January 2010, one month before the scheduled legislative, presidential and municipal elections, a devastating 7.0 magnitude earthquake struck Haiti, killing an estimated 220,000 people and leaving 1.5 million homeless. The catastrophe added to the political crisis and destroyed or badly damaged parts of the electoral infrastructure, including the EMB headquarters office and annex, and a number of the decentralized offices in the West and Southeast departments. Members of the EMB and its local and international partners also suffered significant personal injury and loss of life. The first round of the presidential and legislative elections was ultimately held on 28 November 2010 amid confusion, allegations of fraud, violence and intimidation. The second round was delayed until 20 March 2011 following widespread violence, which was reflective of Haitian elections for over two decades. Despite significant improvements over the first round and encouraging recent legal reforms, the Haitian EMB lacks public credibility; thus the crisis of electoral management persists.
The Electoral Institution and Legal Framework
Haiti’s electoral administration system was introduced in the 1987 constitution, which mandated that transitional elections be administered by a provisional council, the Conseil Electoral Provisoire (CEP), until a permanent electoral council (Conseil Electoral Permanent) could be established.
Over 25 years later, Haiti’s EMB remains transitional. A new electoral law to create a permanent commission was introduced in December 2013, and was substantively revised before being passed by the lower house of Parliament in March 2014; as of July 2014 it was stalled in Senate negotiations. The enduring challenge of electoral administration in Haiti is intimately connected to the institutional crisis of the past two and a half decades, which is embodied in the paradoxical name of its EMB: the Transitional College of the Permanent Electoral Council (CTCEP).
The electoral body is governed by three legislative documents: the constitution, the Electoral Law of July 2008 and the general regulations of the CEP as issued by presidential decree. According to the revised constitution, the three branches of government each appoint three members of the EMB. In addition to its central office, CTCEP has 11 offices at the department level (Bureau Electoral Départemental, BED) and 142 communal-level offices (Bureau Electoral Communal, BEC). In 2011, the CTCEP employed 410 employees in its national office. The BEDs and the BECs employed 99 and 994 employees, respectively, and were only operational during the electoral period. [2]
According to the 2008 Electoral Law, the CEP is an independent and impartial public institution responsible for the organization and oversight of elections throughout the Haitian territory. To date, the CTCEP has been responsible for drafting electoral legislation and proposing electoral legal reform to submit to the president, in consultation with political parties and civil society. It has also been responsible for implementing adopted electoral reforms, such as the recent introduction of the 30 per cent gender quota (under article 17.1 of the constitution). Other powers and functions include requesting the president of the republic to convoke the elections, determining the opening and closing dates of the electoral campaign period, and publishing electoral results. Although granting political parties the authorization to operate is the prerogative of the Ministry of Justice, the CTCEP registers political parties during each electoral period. The CTCEP is also responsible for electoral dispute resolution and for the decision to annul electoral votes in legally warranted circumstances. [3] These functions are expected to be assumed by the CEP under the new legislation.
To date, electoral administration has been severely hampered by two elements of the electoral legal framework. The first challenge is the poor definition of the institutional hierarchy, particularly a lack of reporting relationships and differentiation between respective roles in the management of elections between the director general and the members of the CEP. This has proven to impede effective decision-making during the electoral period. [4] While the creation of the position of director general during the 2006 elections represents an improvement, in practice the director general does not delegate sufficient authority, and the members of the secretariat have remained directly involved in the day-to-day operations of electoral management in recent years. [5] Rather than serve as a board of advisors, the nine members are involved in routine activities such as the recruitment of polling supervisors. This has contributed to the lack of public trust in the institution and slowed administration activities to the extent that in some places during the last elections, lists of poll workers were received so close to the elections that poll worker training took place either the night before or the morning of polling.
Electoral dispute management is at the heart of the second major legislative challenge. The constitution (article 197) and the Electoral Law confer exclusive authority for all issues of electoral dispute resolution on the CEP. The electoral dispute resolution process is handled within the CEP structure by a National Office of Electoral Disputes (BCEN) and departmental and communal offices. At the departmental and communal levels, the dispute resolution bodies are composed of two members of the BED and BEC, respectively, and one lawyer named by the CEP. Housed within the CEP, the BCEN is composed of three sections, each consisting of three CEP members and two lawyers designated by the CEP (Electoral Law, section D, articles 14–18). According to the constitution, the BCEN is the court of final appeal for all disputes arising during elections or in the application or violation of the electoral law. This system undermines the neutrality of electoral justice and creates a fundamental conflict of interest for the CEP, which is both the judge and jury. [6]
The 2014 draft Electoral Law addresses both of these issues to a limited extent. Under the proposed law, the director general would be replaced by an executive director, who would be named by the CEP to implement its decisions and coordinate the activities of the other departments, thereby clarifying if not correcting the hierarchy issue. The draft law would introduce magistrates and lawyers delegated by the Haitian Bar Association into each section of the BCEN. While the CEP would continue to play an integral role in electoral dispute resolution, the introduction of these members is intended to diffuse the conflict of interest inherent in the present system.
The Implications of Failing to Respect the Electoral Calendar
Haitian elections are constantly postponed. No national or local election has been held according to the constitutionally mandated calendar since the constitution was ratified.
In the past, these delays have resulted in constitutional crises on multiple occasions. One- third of Haiti’s senatorial seats are up for election every two years. The postponement of elections has exceeded the Senate term limits and placed the Senate in an unconstitutional status multiple times in recent years, opening the door for the president to govern by decree. Article 232 of the 2008 Electoral Law was revised in 2009 to address the issue of term limits for the executive, parliamentary and local councils and assemblies elected in 2006–07; however the ongoing delays in the process threw the country into constitutional crisis once again in 2012 and 2013. The systematic postponement of electoral dates has contributed significantly to the negative public perception of the electoral process.
The failure to respect constitutional provisions on the elections has created a self- perpetuating downward spiral in the ongoing problem of electoral management. The CTCEP was established according to the amended constitution, however the executive is unable to establish a permanent commission because Parliament cannot choose its three members, as per the constitution, because elections are not held on time and one- third of the Senate’s term limit has expired. Without a full sitting Senate, the permanent CEP cannot be created and the country is left with the transitional council.
Electoral Operations
The fundamental conflict over the creation of a permanent body has implications in all areas of electoral operations, notably voter registration, electoral logistics and financial management.
Voter registration constitutes a major operational challenge for the CTCEP. [7] The CTCEP is responsible for maintaining a verified voter registry and publishing a voter list on the basis of civil registry information received from the National Identification Office (ONI). The ONI maintains a continuous civil registry and provides a national identification card to new registrants and already-registered voters who have lost their card. The ID card must be presented on election day in order to vote. Since 2005, the OAS has provided substantial assistance to help modernize the civil registry, including supporting the registration of over 5 million Haitians, updating card technologies to feature security measures such as biometric features and a unique identification number, and seeking to professionalize the ONI (a permanent institution) through staff training and the provision of office technology and equipment in the 141 ONI offices countrywide. [8] Yet significant legal, procedural and economic challenges continue to deprive many Haitians from obtaining civil identity documents at the ONI level. [9] Legally, discrepancy between the Electoral Law and the constitution regarding the voter registry severely limits the options for recourse. [10] There are two major persistent, practical problems with the civil registry, and therefore, the electoral lists. First, since there has never been a link between the ONI/civil registry and the issuance of death certificates, the deceased have never been removed from the list. [11] Compounding the problem, existing death certificate forms are not well adapted to electoral needs, because they do not include information that would help find a voter’s name on the list, confirm their correct identity and delete the entry. Second, the replacement of documentation and reallocation of polling centres to the population displaced by the earthquake remains a substantial challenge. [12]
Electoral logistics are another major challenge. Following years of coups d’état and intervention in politics, which led to the death of an estimated 3,000–5,000 Haitians and the exile of tens of thousands, the Haitian military was disbanded in 1995 by then- President Aristide. Ever since, civilian law enforcement under the National Police and Coast Guard has relied heavily on the UN, which has been present in Haiti since 1990, for electoral security and logistics. [13]
The United Nations Stabilization Mission in Haiti (MINUSTAH) and the UNDP have played an all-important role in Haitian elections. In 1994, the UN adopted Resolution 940 under Chapter VII, which authorized the creation of a multinational force and the use of ‘all necessary means to facilitate the departure from Haiti of the military leadership’ and to return the elected president to Haiti (S/RES/940/1994). UN peacekeepers have remained in Haiti ever since. The current mission, MINUSTAH, is the sixth UN mission to operate in Haiti since 1993 and plays a central role in electoral operations. [14] Since its creation in 2004, MINUSTAH has been mandated to help the Haitian electoral management body organize, monitor and carry out free and fair local, municipal, parliamentary and presidential elections. Several successes have been recorded, notably the introduction of vote tabulation centres (CTV) in the 2006 and 2009 elections, full control of which were gradually transferred to CEP in the 2010 elections following a strategy of increased national ownership led by the UNDP. International support has also contributed to improved use of ICT in the electoral process. [15] Although significant implementation challenges remain, other recent initiatives — such as the increased number of polling stations (minimum of two per commune), the introduction of random selection for poll worker placement, and competitive recruitment for members of the BED and BEC — have the potential to make positive contributions in future elections. Likewise, MINUSTAH support to logistics and electoral security has been critical to protecting voters in Haiti’s notoriously violent elections.
The UN presence has been critical in mitigating conflict over the financial management of elections in the absence of a permanent electoral body. The Haitian state is mandated to ensure the financial resources of the CEP, [16] including operating costs and staff salaries. Funding for electoral activities comes from special funds allocated by the Ministry of Economy and Finance and the contributions of international donors. The Haitian government is committed to funding up to one-third of the electoral budget, whether for capital expenditures, acquisition of equipment or personnel costs. [17] In terms of financial management, the CEP is accountable to the Ministry of Finance and is liable for its management before the Superior Court of Auditors and Administrative Disputes. Since 2005 the UNDP has managed the electoral basket fund, which includes procuring electoral materials, managing the electoral staff payroll, strengthening institutional capacities and providing technical advisors to the CEP. Since the 2010 elections, the UNDP’s basket fund has incorporated a large part of election-related international assistance programmes operating in the country, in addition to the CEP’s budget. The UNDP’s role in the financial administration of Haitian elections was made necessary by a crisis in confidence in the EMB’s financial management and the temporary nature of the institution.
Sustainability and Dependence on Outside Assistance
The ongoing failure to create a permanent commission has resulted in a severe deficit of institutional memory and retention of experienced staff. Between elections, the administrative personnel and management-level employees are retained at the central level of the CTCEP. All others, including all of the regional offices, are dismissed because the annual budget does not support their payroll. Almost all CTCEP staff are recruited on a contractual basis, and with each turnover of leadership or expiration of an election- period budget, almost the entire staff is dismissed. This has made institutional memory and development of staff professionalism a serious problem for election administration. [18] The absence of career development resources or minimal job security have made it nearly impossible for the CTCEP to recruit and retain experienced professionals or develop an institutional memory. Planned training and professional development programmes have been stifled by this problem. Staff frequently leave before the end of their contracts, in search of more secure employment opportunities.
The temporary nature of the institution and Haiti’s relationship with international donors have had a profound impact on sustainability. The UN, OAS and other bilateral assistance providers have been involved in the organization of Haitian elections since 1990. Over the years, dependence on international funding and expertise has become entrenched. The highly sensitive task of ensuring electoral security is virtually entirely under MINUSTAH’s control. There have been no systematic plans to transfer skills and capacity in technical areas such as the use of GPS systems for materials and personnel deployment. [19] As the electoral crisis continues, there is no exit strategy or long-term vision to alter the reliance on internationals for operational support in all areas. [20] Institutional sustainability is not possible until a permanent institution is created. The problem may be further complicated by the limited definition of MINUSTAH’s mandate, which focuses on providing assistance to electoral events and crisis management rather than building the process and the electoral institution, which remains temporary.
Gender and Electoral Management
Haiti is one of the worst countries in the world for women’s participation in elected office and electoral management. Alarmingly, the trend is worsening under the revised draft Electoral Law. Women’s representation in parliament is only 4.2 per cent, one of the ten lowest scores worldwide. [21] This number has fallen even lower as the mandates of a number of elected women deputies and senators have now expired. A constitutional amendment in 2011 (published in June 2012) introduced a 30 per cent minimum quota for women’s representation at all levels of public life. The original version of the new Electoral Law included this measure and extended it to municipalities and other local boards (article 90); however the quota measure was withdrawn from the later version of the law in March 2014.
The CTCEP, which is responsible for implementing the constitutional measure, has not assumed its responsibility; instead, it has passed the burden to political parties to field women candidates. The parties have no legal requirement to do so, no enforcement mechanisms have been proposed and, with most candidate-level quotas, the outcomes of women elected to office generally fall far short of the target quota level. The minimal financial incentive for meeting the 30 per cent target is open to misuse. Under Haiti’s majoritarian electoral system, and given its historic gender imbalance in government, the quota is unlikely to be attained without the introduction of reserved seats.
In 2013, four of the nine members of the CTCEP were women. The EMB does not keep data on internal staffing equality, therefore it is not known how many women participate in the electoral processes as CTCEP personnel or poll workers. Data available for the CTVs in 2010 shows positive participation of women in the CTV, however women’s roles are concentrated in some areas and virtually non-existent in others such as technology (0), CEP security agents (0) and lawyers (10 per cent). [22] The CTCEP has not disaggregated voter registration or turnout information by sex, thus there is no data on women’s participation in these areas. Under the new 2014 law, the BED and BEC are required to include at least one woman, in any position (article 9).
While the failure to implement the constitutional quota is a primary concern for the CTCEP, electoral authorities have other important roles to play in addressing some of the most pressing factors that discourage Haitian women’s participation as voters and candidates. Women candidates are often victims of gender-based smear campaigns. [23] The EMB is responsible for preventing and prosecuting acts of gender-based electoral intimidation and violence. The lack of confidence in the process and supposed corruption also contribute to a perception that electoral management and politics are not women’s domains. [24]
Relations with Other Stakeholders
In terms of media relations and external communications, the CTCEP has a director of communications but no public relations services as such. Apart from weekly press briefings and press releases published during the electoral period, there are no specifically designated programmes or outreach to the media. [25] External communications have been problematic, notably due to the poorly defined management hierarchy and the involvement of CTCEP members in daily operations. A lack of message consistency, uneven relations with media outlets and erratic access for interviews has contributed to a lack of transparency, confusion and mistrust. [26] Reform of the CTCEP’s external communications is critical, both to enhance the credibility and transparency of the process among political parties and transform the media into an ally to inform the public about its mandate and activities, and to inform and educate voters about the electoral process and voting operations. [27]
The CTCEP does not have a defined relationship with Haitian civil society, although it relies heavily on domestic and international organizations to provide civic and voter information and education. CTCEP voter education has tended to be last minute and limited to get-out-the-vote posters with the election date. However, there is a great need for more adapted voter education, because the lack of understanding of the electoral process fuels rumours and mistrust. [28] International organizations such as IFES have sought to address this by adapting messaging approaches to voter information needs. Nonetheless, voter turnout is exceptionally low, only 27 per cent voted in the 2010 presidential elections. This is a record low for the Western hemisphere, including Haiti, for more than 60 years. [29] Even fewer (22.9 per cent) had their votes counted. Rates of disenfranchisement (estimated at 50 per cent) were highest among populations more affected by the earthquake. [30] Haitians cite numerous barriers to participating in elections, ranging from insecurity and intimidation to fraud and corruption, lack of information and transparency, poor communication with stakeholders, controversial management of the electoral process, organizational and technical problems, poor or no voter access to information, and insufficiency of the voter awareness campaign. [31]
Conclusion
Haitian electoral administration faces significant obstacles to bringing credibility to the election process. The first step toward emerging from the ongoing crisis will be the creation of the constitutionally mandated, permanent CEP with financial and administrative autonomy. Neutrality of electoral dispute resolution must be guaranteed, and an exit strategy and transfer of professional capacity is necessary to end the long- standing dependence on external actors for electoral activities. To meet its constitutional requirements and international obligations, the permanent CEP must reverse its course on women’s political participation. Improved management of external communications and responsive voter education can help improve transparency and faith in the process. As Haiti emerges from the challenges of recent years, credible electoral administration will be a key factor in building a better future.
Notes
[1] Lagueny 2011.
[2] Opont 2013.
[3] Rioux and Lagueny 2009; Rioux 2013.
[4] Opont 2013; Lagueny 2013; Kingsley 2013.
[5] Ibid.
[6] Rioux 2013; Descartes 2013; Opont 2013; Lagueny 2013.
[7] Richards 2013; Opont 2013.
[8] Sentinel 2012.
[9] Ibid.; Lagueny 2013.
[10] Rioux 2013.
[11] Lagueny and Dérose 2010.
[12] Ibid.
[13] Mobekk 2001; MINUSTAH; Lagueny 2013.
[14] The distinction should be noted between the CEP (institution) and the CTCEP (transitional college currently in charge of the institution).
[15] Opont 2013.
[16] Since 1993, the only period when no UN mission was in place was from March 2001 to February 2004. No elections were being organized during this period (Lagueny 2013).
[17] Opont 2013.
[18] Richards 2013; Lagueny 2013; Gonzalez, Davila and Opont 2013.
[19] Opont 2013.
[20] Lagueny 2013.
[21] IPU no date.
[22] UNDP 2013.
[23] Ibid.
[24] Ibid.
[25] Opont 2013.
[26] Lagueny 2011, 2013.
[27] Ibid. It should be noted that the CTCEP is not involved in political party access to state media; this is managed by the National Telecommunications Council.
[28] Ibid.; Kingsley 2013.
[29] Weisbrot and Johnson 2011.
[30] Ibid.
[31] Lagueny 2011.
References
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Gonzalez, Lourdes, Davila, Roly and Opont, Pierre-Louis, UNDP Haiti, interview with author, 7 November 2013
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Kingsley, Jean Pierre, former chief electoral officer of Canada and chair, International Mission for Monitoring Haitian Elections 2006, interview with author 30 October 2013
Lagueny, Sophie, How to Develop and Execute an Effective and Efficient Communications and Outreach Strategy Capable of Gaining the Trust of Voters in Transparent and Honest Elections in Haiti (Washington, D.C.: International Foundation for Electoral Systems and US Agency for International Development, 2011)
Lagueny, Sophie, electoral expert and former IFES chief of party, Haiti, interview with author, 29 October 2013
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