The constitutional period to have put in place a transitional government for Haiti has elapsed. The deadline to elect a president to fill the presidential vacancy expires after 120 days of a president’s confirmed incapacity.
According to articles 149 and 172 of the Haitian Constitution, the Council of Ministers that assume the executive functions must organize elections, between 60 and 120 days, to elect a president to finish the mandate of a president unable to perform his duties. This means Ariel Henry should have held elections some time in November. He did not do so, meaning the time to have a transitional president had elapsed.
Therefore, Haiti must gear up for two options. Either, hold elections for a full-term president who will designate a prime minister, or keep Henry on as Prime Minister since his mandate is not linked to the timing of Jovenel Moïse’s term.
Specifically, Articles 149 and 172 state that the post of Prime Minister is nominative and a Prime Minister is not linked to any presidential mandate. Constitutionally, a new president is under no obligation to replace said prime minister.
In this same vein, an individual may be the Prime Minister of several presidents and only an elected president can appoint a new one to replace a current one.
Even in times of extreme circumstances, the Haitian Constitution does not provide for the nomination or election of a Prime Minister by bodies not accredited by the government. Moreover, it does not give anyone the authority to act as an electoral college to organize elections. According to article 289 of the Constitution and the electoral decree of 2015, only the Electoral Council, under the direction of a president, has this obligation. In the absence of a president or in the event of a presidential vacancy, the Prime Minister assumes this responsibility.
The Constitution provides for a transition that will only go to the regular term of the incapacitated president. The election for a provisional president would be held by a parliament and again, in the absence of a parliament, a Prime Minister in the event that a parliament cannot meet as a national assembly. When parliament or the Prime Minister could not hold elections on time or for any administrative reason, such as quorum or caducity, the Prime Minister would call elections to form a permanent government.
The Constitution only provides for popular vote or legislative sovereignty to have a prime minister; otherwise, anyone or groups behaving as a College of Electors to form a new government outside the mechanisms previously established by Haitian legislation is only an exercise of futility. If carried out, their resolution would undermine the country’s remaining political normality.
Better yet, any Prime Minister elected from an election, any president for that matter, organized by an accord or several merged accords would neither be legitimate, legal, constitutional, nor would lead the country toward political normalcy.
So how do we get beyond the current battle of accords going around?
Haitians must understand these rules because no matter the circumstances, any decision made at this point will be closer to the Constitution.
Henry must work with civil society to form the electoral council (CEP) to hold elections. I agree that elections will be difficult with this insecurity. However, insecurity or not, the procedure to hold elections must be launched as the government develops strategies to destroy the gangs.