Either Jovenel Moïse was an unconstitutional president after February 7, 2021 or he was in the fifth year of his term at the time of his assassination. A term that would’ve ended February 7, 2022 had he been alive. It is this latter argument that makes Ariel Henry a legitimate prime minister and, by extension, the interim president of the republic.
Ariel’s accord, backed by the Popular Democratic Sector, focuses on the first paragraph of Article 149 of the amended constitution. Therefore, Ariel will continue to lead the country until he holds new elections. Article 8 of his accord strengthens such a constitutional provision. However, the second paragraph, on the other hand, states that the Prime Minister must hold elections 60 to 120 days after the start of the presidential vacancy, in accordance with the Constitution and the electoral law.
In its third paragraph, this constitutional article recognizes that Parliament, agreed in the National Assembly within 60 days of the vacancy when the vacancy occurs from the fourth year, elects an interim President to fill the vacancy.
It is clear that it is impossible to have a national assembly since there are only ten Senators left in the country’s parliament. They would not reach the necessary quorum to make decisions around this question. Article 149 does not say that this president must come from the parliament, even though there is a tendency to believe the constitution obliges the President of the Senate to become President, as was the case with Jocelerme Privert in 2016.
The remaining parliament, either by official act or by omission, approved Ariel’s choice by the president before his sudden death. So I assume that Ariel is on the verge of violating Article 149 as he will not hold elections and will instead remain in power beyond February 7, 2022.
Section 149 does not require any interpretation. Its provisions are clear and must be applied in full. Considering the last two paragraphs of the article in question, Ariel has to hold the election. However, he has exceeded the deadline for holding them and in fact, his breach of duty is a violation of the constitution; a violation that Article 21 of the country’s law calls a high treason crime.
I support the argument that the term of office of the Prime Minister is linked to that of Moise’s. Therefore, continuing to lead the country as president will be unconstitutional. I suggest that all the accords come together to find a comprehensive solution. In the meantime, I further propose the application of the precedents of Article 149 of the unamended constitution which appointed Judges Ertha Pascal Trouillot and Boniface Alexandre as interim president in 1990 and 2004, respectively.
Furthermore, in line with the Ariel, Quisqueya and Montana accords, we recommend, as mandated by Article 190bis to 190ter of the constitution, the physical formation of the Constitutional Court to play the role of the State Council, Transparency Oversight Board (OCT) or the Control and Monitoring Authority (ACS) proposed by the Quisqueya, Montana, and Ariel accords respectively.
My proposition is closer to the constitution and it is, moreover, more appropriate because judges, especially those of the Court of Cassation and the Constitution Court, present a certain guarantee of neutrality in relation to the political and socio-economical influential forces now present in the country. Having a judge as the president and nine others to provide oversight and checks and balances to the executive will bring a national sense of political normalcy, curb the plague of insecurity, pave the way to boost people’s confidence in governance, and restore their faith in the country’s democratic institutions as Haiti works towards the restoring full constitutional order.