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Haïti - Elections : Report of the legal experts of the OAS 19/02/2011 10:25:59
In his presentation, he said that the members of the Mission, which was present in the country from January 23 to February 3rd, held meetings with electoral authorities and participated in the hearings of the West I Departmental Electoral Challenges Office (BCED), in which the complaints of the candidates Michel Joseph Martelly, Jude Célestin, and Charles Henry Backer. This Mission had occasion to observe the Haitian electoral process solely during the phase of the challenges, before the BCEN, by candidates Martelly, Backer, and Célestin, to the results of the first-round presidential election. Considering its limited mandate, the Mission is not in a position to judge the entirety of the Haitian electoral process or the credibility of the institutions taking part therein, often called into question in the arguments. However, the absence of clear rules in the 2008 electoral law regarding the procedure to be employed by the BCEN should be corrected. For example, the law should specify deadlines for the presentation of challenges and for rendering and announcing rulings. Attention was called to this lack of precision by the attorneys for all the parties at the beginning of the hearing. In this second instance of the challenges concerning the presidential election, the candidates had every opportunity to submit their petitions and to present oral arguments. The proceedings were public and transparent and were broadcast on national radio and television. The scope of the decision rendered, therefore, is consistent with the scope of the petitions presented. Extracts of the mission of legal experts of the OAS to support the challenges phase of the presidential election process of november 28, 2010, in the Republic of Haiti First Instance On Friday, January 21, 2011, members of the Mission attended the BCED hearings, at which, in the first instance, the Office heard the only three challenges received, those of presidential candidates Mr. Michel Joseph Martelly, Mr. Jude Célestin, and Mr. Charles Henry Backer. That same day, the BCED issued rulings on the three challenges, which were presented to the BCED on Sunday, January 23, 2011.
Challenges to these rulings before the BCEN must be lodged within seventy-two (72) hours of their announcement (Article 186 of the electoral law of 2008). For the rulings issued on Sunday, January 23, the CEP set that deadline at 1:30 p.m. on January 26. The three candidates submitted their challenges to the BCEN within the established deadline. Second Instance The challenge by candidate Mr. Michel Joseph Martelly, presented on January 24, requests that the BCEN, inter alia, "respect and apply fully, in form and content, the recommendations issued in the OAS Mission’s report; and therefore issue an injunction to the Provisional Electoral Council to publish the new results, on the basis of this report, declaring candidate Michel Joseph Martelly eligible to participate in the second round of voting in the presidential election, subject to any additional arguments." The challenge by candidate Mr. Charles Henri Backer, presented on January 25, requests, inter alia, that it "declare invalid the contested decision" and "null and void the presidential election held on November 28, 2010, considering the inability of millions of Haitians to vote, the failure of representatives to monitor the voting, the stuffing of ballot boxes, the falsification of tally sheets, and the systematic violence in all the country’s electoral districts". The challenge by candidate Mr. Jude Célestin, lodged on January 26, requests the BCEN to "consider and count, in the tabulation of results of the election of November 28, 2010, the entirety of the tally sheets for which there is no evidence that they were compiled in a manner inconsistent with the electoral law or with the procedural rules established in that law but that were nonetheless excluded by the Tally Center, even though they were analyzed and handled by the Center’s legal unit; to include in the input and processing of data from the tally sheets for purposes of announcing the results those tally sheets that were improperly excluded, and to proceed with new calculations, so as to determine the true number of votes cast for the petitioner." For its part, the BCEN announced the requests of the three petitioners before the hearing began Once the petitions had been received, the BCEN scheduled the hearing of arguments for Saturday, January 29. Presiding over the Chamber was Mr. Gaillot Dorsinvil, President of the CEP, accompanied by Council members Mr. Léonel Raphael and Mr. Guerrier Anténor, and assisted by two CEP attorneys, including its Director of Legal Affairs, Anthony Mathieu Chérubin, Esq., and Wilfort Pierre Louis, Esq. The session was convened for 11 a.m. The hearings began at 1:00 p.m. in public session, attended, inter alia, by the members of the OAS Mission, observers from other international organizations, and the local and international press. The hearings were broadcast on radio and television. The petitioning candidates were represented by teams of eminent Haitian attorneys. One of the candidates, Mr. Charles Henri Backer, was also present during the entire session. At the beginning of the session, the BCEN President announced the decision to join the petitions of candidates Mr. Martelly and Mr. Célestin, since their aims were similar. The representatives of two parties opposed this decision and requested that the two challenges be entertained separately, as presented in the first instance. The BCEN ultimately accepted the attorneys’ objections and decided to hear the two matters separately. The representatives of Mr. Michel Joseph Martelly began their arguments at 2:00 p.m. They requested that the recommendations of the OAS Final Report of January 13, 2011, be implemented. They recalled the reasons for which the CEP had signed the Agreement requesting verification of the vote tally by OAS experts, and said that, even if its legal character was debatable, the Report could only be accepted or rejected in its entirety by the CEP. They requested, in case of rejection of the Report, authorization for candidate Martelly to appoint experts to examine, at the Tally Center, the 234 tally sheets already excluded, as well as other tally sheets specified in the petition. he attorneys for Mr. Jude Célestin, began their arguments at 3:00 p.m. They reaffirmed that their client had received the clear majority in the first round and that this fact had not been recognized because a significant number of votes had been "impounded" without legal justification. As for the OAS report, it should be viewed simply as a technical reference document. They requested verification therefore, at the Tally Center, of all the tally sheets, and that all votes without exception be counted. According to them, such a recount would show that the candidate had received the clear majority of votes. The BCEN rejected the request for verification of Tally Center data, reasoning that it bore directly upon the substantive issues and to issue such an order would be premature. A single decision, therefore, would be taken in the deliberations, both on the injunction and on the substantive issues. Mr. Charles Henry Backer and his attorneys were heard at 6:00 p.m. They requested that the election of November 28, 2010, be annulled. Candidate Backer, speaking in person and in Creole, described the difficulties faced by voters in exercising their right to vote and the numerous incidents of fraud and irregularity found at the polling stations. His attorneys gave other examples of irregularities, including the exclusion of a large part of his representatives from the polling places, and observed that the CEP had established the second-round electoral calendar even before ruling on his request to void the first round. Lastly, they requested the formation of a commission to investigate the allegations. The BCEN also rejected this request to form a commission, reasoning that it bore directly upon the substantive issues and to issue such an order would be premature. A single decision, therefore, would be taken in the deliberations, both on the injunction and on the substantive issues. The session concluded at 7:25 p.m. On January 28, 2011, the CEP announced the calendar for the second round of voting in the presidential and legislative elections of November 28, 2010. On the morning of February 2, 2011, the Mission met with the President of the CEP. It reported that both the rulings of the BCEN and the final results would be announced to the public around 9:00 p.m. At that time, the President thanked the Mission for its presence and support throughout the process. Final Rulings Under Article 191 of the electoral law, "the rulings of the National Electoral Challenges Office (BCEN) are final and cannot be appealed. Such rulings should be announced after the deliberations of the BCEN." On February 2, 2011, the President of the CEP informed the Mission that the BCEN had ruled on each of the requests presented. As for the request by candidate Mr. Michael Joseph Martelly, the BCEN decided, in accordance with the Agreement, to take into account the recommendations of the OAS Report; and it "orders the CEP to amend the ranking already published, organizing a second round between candidates Mirlande Hyppolite Manigat and Joseph Michel Martelly" This ruling, dated February 2, 2011, was made public on February 3, 2011, at 7:00 a.m., along with the announcement of the final results of the presidential and legislative elections of November 28, 2010 (Annex X), in keeping with Article 175 of the electoral law of 2008: "the Permanent Electoral Council, after settling the issues in its disputes departments, as provided in section H of this Law, announces the final results of the elections." HL/ HaitiLibre / OAS
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