Elected officials’ constitutional terms of office, One-third of the Senate

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In October 2019, the Center for Analysis and Research in Human Rights (CARDH, in French) conducted a study on the tenure of the two-thirds of the Senate elected in 2015 and 2016, who took office respectively in January 2016 and January 2017.

Based on legal principles and the Constitution that both define the length and content of elected officials’ mandates, the study concluded that the term of office of the second third expired on January 8, 2018 and that of the first third on January 13, 2020

These two-thirds were elected to fill the vacancies of 2016-2018 and 2018-2020. The Senate had reached an agreement with President Jovenel Moïse to keep the second third until January 2020, which means that they had recognized the constitutional term of the said third in January 2018. However, considering the constitutional deadlines, their terms were due to expire in 2017 and 2019.

President Jovenel Moïse used force to prevent the senators of the first third from entering the parliament building on January 13, 2020. Some of them believed their term would end in January 2022 and wanted to continue to serve.

On January 16, 2020, the concerned senators Jean Renel Sénatus, Jean Marie Junior Salomon, Dieupy Chérubin, Ronald Larèche, Youri Latortue, Nenel Cassy, Onondieu Louis, Willot Joseph and Dieudonne Luma Etienne filed a petition with the Provisional Electoral Council (CEP, in French) asking: “(…) To recognize that the President of the Republic breached the Electoral Decree by violating Articles 50. 3,50.7,45.2, and 239 ; To declare that the petitioners are senators in office until the second Monday of the sixth year of their term, that is, January 10, 2022; To recognize the petitioners’ right to bring any civil action for compensation for damages suffered in a timely manner.”

On January 30, the CEP ruled on the request and stated that “(…) in this case, it does not have any legal reference to bring the matter before the Electoral Court.”

A new summary judgment action was filed by the petitioners but was unsuccessful. The summary judgment court, sitting on February 3, declared that : “(…) By virtue of articles 185 and 186 of the amended Constitution and whereas the President of the Republic is only subject to trial before the High Court of Justice for any crime or misdemeanor he may have committed in the exercise of his office, the Court must declare itself incompetent ratione personae.” The contestants finally accepted that they were no longer senators.

This situation triggered a heated debate about the president’s term of office, opening a “Pandora’s box”! The question was whether his term would end on February 7, 2021 or February 7, 2022

A second legal study conducted by the CARDH and published on May 25, 2020, concluded that according to the spirit and letter of Article 134-2 of the Constitution reinforced by Article 239 of the Electoral Decree of March 2, 2015, the presidential term would end on February 7, 2021. Other jurists, including Mirlande Hyppolite Manigat, professor of constitutional law, have subsequently corroborated the thesis.

After the assassination of President Jovenel Moïse on July 7, 2021, the country experienced an unprecedented situation, the three branches of government being dysfunctional: The Parliament has only 10 senators out of 30 (no deputies); the Court of Cassation has six judges out of 12, and the term of three of them will end next February 17 (Franzi Philémon; Kesner Michel Thermési; Louis Pressoir Jean-Pierre); the Executive is headed by an interim Prime Minister.

In addition, in the run-up to the second Monday of January 2022, the mandate of the remaining third of the Senate is already causing controversy. Senators Pierre-Paul Patrice Dumont and Joseph Lambert have issued warnings that their terms are to end on the second Monday of January 2023.

This would nurture the idea that Prime Minister Ariel Henry could manu militari prevent the senators from entering the space on January 10, 2022, as President Moïse had done on January 13, 2020. There is therefore a need for legal clarification outside of political, or revengeful approaches.

Part of the series of thematic reports on the mandate of elected officials initiated in October 2019, this study aims to provide a legal insight into the mandate of the remaining ten senators.

This study is divided into six parts: (i) the presidential and senatorial electoral timetables from 1991 to date; (ii) the issue of harmonizing terms in order to understand the spirit of Article 134-2; (iii) a summary of the report explaining the end of the presidential constitutional term on February 7, 2021; (iv) a summary of the report pointing out that the 2016 elections were a continuation of the 2015 elections; (v) the method of approaching the term of senators; and, (vi) the legal situation of the remaining one-third of the Senate.