Diaspora

Amendment of Haitian Constitution and the Political Rights of Haitians in the Diapora


avocat-jean-michel-voltaireFilling the Gap for a New Haiti

by Jean-Michel Voltaire, Esq -  The Haitian Constitution of 1987 has been amended.  The Haitians living overseas who are naturalized citizens of a foreign country are asking themselves whether the amendment gives them any new political right.  The answer depends on how one interprets the concept of “renouncing” the Haitian nationality.  This concept is not defined in the amendment even though it appears in several key provisions.  Therefore, the amendment leaves a major ambiguity that must be clarified through an act of Parliament.

Without any clarification of this important concept, the political and civil rights of millions of native-born Haitians are in jeopardy.  Certainly, the amended Constitution, through Article 12, implicitly recognizes the concept of dual nationality.  It stipulates that all Haitians have the same rights and obligations, and that “No Haitian can avail his foreign nationality in the territory of the Republic of Haiti.”  This language indicates that a native-Haitian may have multiple nationalities.  However, that individual cannot seek protections from a foreign country under the Geneva Convention, for example, while he/she is in the territory of Haiti.

 The major confusion is in Articles 91, 96, and 135, which set forth the eligibility requirements for the posts of Deputy, Senator, and President.  To be eligible for these posts, these articles require, inter alia, the candidate (1) must be a native-Haitian; (2) has never renounced his/her Haitian nationality; and (3) possesses no other nationality at the time of registration.  The first illegibility criterion is straightforward because Article 11 defines a native-born Haitian as “Any person born of a Haitian father or Haitian mother who are themselves native-born Haitians and have never renounced their nationality possesses Haitian nationality at the time of birth.”  The third element is not ambiguous because it requires the candidates to turn over any foreign passport before they present to the Electoral Council to declare their candidacies.   

The second illegibility criterion is ambiguous and requires clarification.  What conducts would constitute a renouncement of the Haitian nationality that would make a candidate ineligible for the posts of Deputy, Senator, and President? For example, does a native-born Haitian under Article 11 lose his Haitian nationality through naturalization in a foreign country?  Under the old Constitution, the answer was deemed to be yes.  Article 13 of the 1987 Constitution stipulated that the Haitian nationality was “lost by naturalization in a foreign country.”  Article 15 stated that dual nationality was not permitted in any case.  These two articles were interpreted to mean that once a native-born Haitian took the oath of naturalization in a foreign country, that person effectively relinquished his Haitian nationality and gave up all his political and civil rights.

These articles were used as justification to disqualify Dumas Simeus and Samir Maura, just to name a few, from running for the presidency of Haiti. Both candidates were born in Haiti of Haitian parents making them native-born Haitians under Article 11.  They were deemed to lose their Haitian nationality when they became naturalized US citizens.  The Electoral Council justified their disqualifications on that interpretation. Because articles 13 & 15 have been removed from the Constitution, they can longer be used to exclude candidates like Simeus or Moura from running for political offices.  

Despite the removal of these two articles from the Amended Constitution, many continue to argue that people like Simeus or Moura are still ineligible for high political offices. The only political post they are qualified for is the mayor. This interpretation would be meritorious only if the act of naturalization alone continued to constitute a renouncement of the Haitian nationality. This interpretation, however, suffers from a fundamental flaw.  It does not have any support in the text of the Amended Constitution.  As previously indicated, both articles 13 & 15 that used to provide the legal basis are no longer part of the Constitution.

Contrary to that restricted Constitutional analysis, the Amended Constitution allows any native-Haitian with a foreign nationality to run for any post, provided that individual gives up the foreign passport before declaring his candidacy.  For example, Simeus can now run for the President of Haiti, as he meets the definition of native-born Haitian under Article 11.  He simply needs to return his US passport prior to his registration.  Once he completes that process, he is immediately eligible for all the elected posts in Haiti, as long as he meets the residency and other requirements.  He has the same political and civil rights like any other Haitians under Article 12.

 Nonetheless, the Government of Haiti must take action to clarify the concept of renouncement. This term is not defined and thus leaves a gap to be filled, causing multiple interpretations as to whether a native-born Haitian who is naturalized in a foreign country effectively loses his Haitian nationality.  To clarify this critical issue, an act of Parliament would suffice. The statute will specify the legal mechanism to renounce.  It may require all Haitians to present before a Haitian tribunal or to any other Haitian institution to voluntarily give up the Haitian nationality.  In that case, the Government would have a list of all those who have renounced. The political implication would be that all native-born Haitians who didn’t go through that process would still maintain his Haitian nationality and is eligible for all political offices, as long as they return their foreign passport before running. Haiti would effectively make a giant step towards reconciling its family.  The good news is we don’t need another Constitutional Amendment to clarify the confusion.  We can do it through a simple act of Parliament.

N.B. Jean-Michel Voltaire is an attorney with the US Dept of Justice and Chairman of Reunion Sportive d’Haiti, Inc.  These are his own personal views.

25 Juin 2012