HAITI: ANTI-CORRUPTION CAMPAIGN BEARS LITTLE FRUIT

C O N F I D E N T I A L SECTION 01 OF 05 PORT AU PRINCE 000065 SIPDIS STATE FOR WHA/CAR, DRL, S/CRS, INR/IAA SOUTHCOM ALSO FOR POLAD STATE PASS AID FOR LAC/CAR TREASURY FOR MAUREEN WAFER E.O. 12958: DECL: 01/18/2019 TAGS: PGOV KCRM PHUM HA SUBJECT: HAITI: ANTI-CORRUPTION CAMPAIGN BEARS LITTLE FRUIT REF: A) PORT AU PRINCE 1522 B) 07 PORT AU PRINCE 1345 C) 07 PORT AU PRINCE 1126 D) 07 PORT AU PRINCE 0982 PORT AU PR 00000065 001.2 OF 005 Classified By: Ambassador Janet A. Sanderson. Reason: E.O. 12958 1.4 (b),(d) Summary -------------- ¶1. (SBU) Government of Haiti investigation and prosecution of corruption under President Preval is haphazard and has failed to bring a single major case to trial. President Preval announced in mid 2007 a major effort against corruption. Suspects in several cases, in the public and private sector, have been arrested. However, the weaknesses in Haiti's criminal justice system are such that many were subsequently released, others languish in jail without being charged, investigations grind on inconclusively, and there have been no trials or convictions. The Port-au-Prince prosecutor's office has acted as an overzealous policeman, conducting spectacular raids and hauling in suspects for questioning, but the prosecutor and examining magistrates have failed to build prosecutable cases. While law enforcement efforts against corruption have borne little fruit, other government agencies work beneath the radar, gathering evidence and drafting legislation that is gradually progressing in Parliament. An NGO is developing draft legislation and working to sensitize the public. Public awareness of corruption is slowly rising. Passage of key legislation and continuing work by GOH agencies such as the Anti-Corruption Unit and the Financial Intelligence Unit, aided by NGO education efforts, could further change public attitudes and goad the judicial system to begin prosecutions. End summary. The Culture of Corruption -------------- ¶2. (SBU) Lacking a culture of democracy or rule of law, Haiti is in the early stages of developing practices of transparency and accountability. Corruption is a way of life at all levels of society, in both the public and private sector. Personal relations and relationship of power are generally stronger than the force of law. Individuals in superior positions use their status to generate illicit income, and persons in inferior positions make such payments as the natural course of business. Even in transactions when both sides are roughly equal, as in bidding for state contracts, the instinct of insider dealing takes over, and bribes determine the outcome. Proceeds from crime that is not directly a part of corruption -- especially drug crime -- contribute to corruption by seeping into the economy and financing politicians. On January 9, drug dealer Guy Philippe went to the Departmental Election Office in Jeremie and officially registered his candidacy for the Senate in the April elections. ¶3. (SBU) Marilyn Allien, who heads the ''Fondation Heritage pour Haiti'' (FHH),the local chapter of Transparency International, says that pervasive corruption is the outgrowth of Haiti's ''neo-patrimonial'' mentality, which allows political leaders, especially the President, to rule the country as their personal fiefdom and to enrich themselves in the process. She referred to a 2007 study on Governance and Corruption carried out and published by the Anti-Corruption Unit (ULCC) under the Ministry of Justice and Public Security. This study concluded that corruption was pervasive at all levels of state and society. Its most common form was theft of public resources, especially in state contracting. Most Haitians view state positions as an entitlement to help oneself to state property and appropriate a piece of the ''corruption pie.'' She added that this form of corruption involves both a ''corruptor'' and a ''corruptee,'' a private and state sector actor respectively. Businessmen evade taxes and bribe government officials, including customs officials, tax officials, and parliamentarians. Corruption in the judicial system is the PORT AU PR 00000065 002.2 OF 005 form most harmful to Haiti. Ubiquitous nepotism and clientelism -- in the state sector, and between the state and private sector -- exacerbate the problem. A general lack of transparency in government and business made corruption possible and impeded the fight against it. ¶4. (C) Allien, along with most other Embassy contacts among Haitians and MINUSTAH, believes that although President Preval does not use his office to enrich himself, many of his aides and other government leaders do. What passes for the Government of Haiti's anti-corruption campaign displays the central penchant of the Haitian President: bursts of energy for policy initiatives that peter out for lack of follow-up. Preval declared war on corruption in his 2007 speech on Haiti's Flag Day (May 18). He labeled bribe-takers and bribe-givers ''traitors'' and promised to ''fight corruption with all we have'' (ref d). Spectacular Corruption Cases -------------- ¶5. (SBU) That rousing speech was followed by a handful of high-profile arrests executed by then Port-au-Prince Chief Prosecutor Claudy Gassant. In highly publicized actions in late 2007, Gassant arrested Socabank director Frank Cine in connection with the collapse of that institution (ref c),and Fritz and David Brandt on customs fraud charges related to the import of a single vehicle (ref b). Neither the Frank Cine-Socabank case nor the Brandt case has gone to trial. Fritz Brandt was released in late 2007 and David in early ¶2008. The case against them was dropped. One customs broker in the broker employed by the Brands received a jail term. Despite defense appeals, Cine and a handful of his associates remain in custody. In August 2007, Gassant also hauled in businessman Reginald Boulos (brother of then-Senator Rudy Boulos) for questioning about customs fraud -- in a way that Boulos said was meant to intimidate him and spotlight Gassant as a crime fighter -- and then released him without charge the same day. ¶6. (C) None of these cases has produced a major prosecution. Many believe that the collapse of Socabank -- an institution linked to interests of former President Jean Betrand Aristide -- involved serious legal wrongdoing, including attempt to bribe numerous legislators. This was the kind of event that should have been vigorously investigated but has not been. In contrast, the customs fraud that Brandt and his associates were accused of is both relatively minor and ubiquitous. That has created the suspicion that the government's aim in bringing corruption cases is less to prosecute wrongdoing than to make an example of a Haitian elites and political opponents. (Note: In relaxed settings, Embassy business contacts at times admit that customs clearance procedures are so cumbersome that they routinely bribe customs officials to accelerate clearances. End note) ¶7. (SBU) After these cases produced nothing for almost a year, another flurry of corruption cases erupted in late ¶2008. The most serious was the reported misuse of funds by Haiti's national pension fund for private sector employees (National Old Age Insurance Office - ONA) (ref a). ONA Director Sandro Joseph was accused of using official funds to purchase a vehicle for a mistress and to purchase property, and of extending mortgage loans to several Senators, including Senate President Kely C. Bastien, on preferential terms. The new Port-au-Prince Chief Prosecutor, Joseph Manes Louis, accompanied by hooded special police, conducted a spectacular raid on the ONA headquarters October 9 to arrest the ONA Director. Having been tipped off, Joseph had left the building minutes earlier, so Manes Louis confiscated boxes of documents, and police roughed up ONA staff. Prosecutor Manes Louis later admitted in public he had not had an arrest warrant for Joseph the day of the raid, but had acquired one later. The case was referred to an investigating magistrate, to whom Joseph subsequently presented himself voluntarily several times for questioning. He has not been charged and remains free. PORT AU PR 00000065 003.2 OF 005 ¶8. (SBU) ONA had been suspected of corruption for years. However, it emerged that Prosecutor Manes Louis took steps against ONA Director Joseph only because the female recipient of Sandro Joseph's gift of an SUV was once linked romantically to former Chief Prosecutor Claudy Gassant, who remains close to Manes Louis. Many suspect Gassant's rivalry with Joseph was the reason Manes Louis went after him. In the wake of swirling accusations and the provocative raid, the Prime Minister (who at the time also held the Justice portfolio) publicly cautioned criminal justice officials in late October to adhere to legal procedures and to preserve the confidentiality of criminal investigations. President Preval replaced Sandro Joseph as head of ONA in November. As of early 2009, there has still been no formal indictment, and no clarification of whether property purchases and mortgage loans to senators out of ONA funds were legal or proper. ¶9. (SBU) The sudden disbursement of a large amount of hurricane relief money -- approximately USD 200 million appropriated under the State of Emergency Law in September -- created opportunities for corruption and accusations of misuse of funds by local officials. In October-November 2008, the mayors of Leogane, Grande Saline, and Savanette were accused of embezzlement of city funds. The first two were arrested (ref a). Both have been released. Authorities brought no charges in any of these cases. In October, police in Gonaives discovered diverted relief goods stored in a warehouse owned by a security official in the office of Gonaives Mayor Stephen Moises. The same month, Haiti's national television station TNH reported that three of its employees were arrested October 21 for renting equipment to the station that the station already owned (ref a). That case has not come to trial. There are unproven suspicions of wrongdoing by the director of the GOH procurement agency, the National Equipment Council (CNE),in its non-competitive purchases as the GOH expends emergency funds in response to the hurricane disaster. The CNE Director, although acknowledged as effective, is generally believed to have lined his pockets when he held the same job during Rene Preval's first term. Anti-Corruption ''Campaign'' Inconclusive -------------- ¶10. (SBU) This series of cases over the past year do not yet amount to a serious government campaign against corruption. Port-au-Prince Chief Prosecutors Gassant and Manes Louis have used the corruption issue to grab the public spotlight with provocative and probably illegal tactics. These arrests, however, have had no visible deterrent effect on the business community or officialdom. In early 2009, all of these corruption cases have fallen off the public radar. ¶11. (SBU) The handling of these corruption cases reflects the weakness of Haiti's criminal justice system. Police are unschooled in basic investigative techniques. Prosecutors regularly overstep legal bounds. Examining magistrates, who in Haiti's Napoleonic system carry forward the investigation and build a criminal case, are underpaid and undertrained and face huge case backloads. Suspects stay in prison for years without trial. Haitian authorities are just beginning to acquire a capability to investigate financial crime, the centerpiece of most corruption cases (see para 15). GOH Institutions with Anti-Corruption Mandate -------------- ¶12. (SBU) Haiti nevertheless has institutions with a specific anti-corruption mandate. The Superior Audit Court (Cour Superieure des Comptes et du Contentieux Administratif) is charged with exercising financial and audit control over government agencies. It also gives appointed officials a certificate of financial good conduct (a "decharge") when they leave office. Regulations prohibit ministers from traveling outside Haiti for six months after they leave office, or until they receive this document. Allien of the Heritage Foundation noted that this court is understaffed and at times politicized. Its audits have not led to criminal PORT AU PR 00000065 004.2 OF 005 investigations. In fifty years, it has implicated only two officials in financial malfeasance. ¶13. (SBU) A more sturdy institution is the Anti-Corruption Unit (ULCC) under the Ministry of Economy and Finance. It was formed by presidential decree in September 2004 and given the mandate to 1) develop an anti-corruption strategy, 2) review the legal framework and propose/draft anti-corruption legislation, and 3) carry out investigations to refer to prosecutors. ULCC General Director Amos Durosier told Poloff in December his office would soon complete the anti-corruption strategy and present it to the Minister of Economy and Finance. Anti-Corruption Draft Laws in the Making -------------- ¶14. (SBU) A success in 2008 was passage of a financial disclosure law for high government officials. The ULCC was the moving force behind it. However, few officials beside the Prime Minister have complied with the disclosure requirement, even after the deadline was extended. The ULCC is setting up offices in the provinces to help implement the financial disclosure law. ULCC presented the government in 2008 a corruption bill, which is now with the legal department of the Prime Minister's office. Durosier thought the bill would come before Parliament in early 2009. (Note: an agenda agreed by the Parliament and government on December 10 has the bill coming before Parliament in January 2009. End note) The bill defines acts of corruption, lays down sanctions for violators, contains provisions to protect whistleblowers, brings Haitian law into conformity with the International Convention Against Corruption (which Haiti ratified in 2007),mandates a system of corruption prevention, and outlines a framework of cooperation with foreign countries. The ULCC was working on an ethics code of conduct for public officials and on a ''freedom of information'' bill. ¶15. (SBU) Allien of FHH told Polcouns January 7 that her office had just received three drafts of additional anti-corruption laws from consultants FHH had contracted. These cover whistleblower protection, guidelines for lobbying, and provisions governing financing of political parties. She will submit these to FHH lawyers for comment, and then discuss them with stakeholders such as political parties, members of parliament, judges and lawyers before asking ULCC to submit the drafts to the government. ULCC Investigates but Does Not Prosecute -------------- ¶16. (SBU) Durosier clarified that the ULCC is not a judicial agency, and cannot prosecute cases in court. However, its mandate gives the ULCC investigative powers. It solicits and receives information from public and official whistleblowers -- some of it drafted by contractors of Allien's Haiti Heritage Foundation -- and develops further information based on these leads. If a case looks promising enough to support a criminal case, ULCC transfers the file to the public prosecutor. Thus far, ULCC has investigated approximately 50 cases and referred about 10 to the Port au Prince Prosecutor. Durosier stated that the Prosecutor is sitting on these files and not carrying the investigations forward to produce criminal cases. (Allien of FHH corroborated this.) Durosier named prosecutors and judges the biggest impediment to the fight against corruption. Since they refuse to investigate ULCC-provided evidence, there have been no prosecutions or convictions. ULCC exchanges information with Haiti's Financial Intelligence Unit (Unite Centrale de Renseignements Financiers - UCREF) which is under the Ministry of Justice and Public Security. UCREF develops information on money laundering and refers it to prosecutors. ¶17. (SBU) ULCC General Director Durosier said his agency is expanding its investigative capability. With help from USAID, his agency installed and began operating last year a PORT AU PR 00000065 005.2 OF 005 computerized ''Integrated Financial Management System'' (IFMS) that links ULCC in real time to the financial operations of 41 public administrative agencies of the Government of Haiti. ULCC is developing 23 case files based on information gleaned from IFMS. ULCC, which currently has only 14 employees, is addressing its limited capability by recruiting investigators, computer specialists, auditors, financial specialists, and lawyers. Comment: Anti-Corruption ''Campaign'' Ineffective -------------- -------------- ¶18. (C) Preval's anti-corruption campaign announced in 2007 has produced no significant judicial verdicts, little new legislation, and no deterrent effect. Lacking strong Presidential leadership and adequate resources, the inefficient and corrupt judicial system has proven the weak link. Arrests and raids generated have produced intense publicity but no prosecutions or trials. The Port-au-Prince Chief Prosecutor has sought the limelight by taking aggressive action, but neither he nor examining magistrates have followed through to bring cases to trial. The lack of a prosecution in the Socabank case 18 months after the suspects' arrests makes it appear that prolonged detention without trial is the government's ultimate weapon against corruption. Initial indications are that the new Minister of Justice and Public Security, Jean Joseph Exume, is serious about reforming the criminal justice system. It will nevertheless take months, if not years, for his stewardship to make a difference. Without credible prosecutions, government law enforcement efforts against corruption will appear arbitrary and will fail to create a deterrent effect. A rigorous, concerted effort is the only way to convince the population there is not a political agenda at work. The President and his justice system must address head-on corruption within government. This effort must be seen to be independent of political interference. Comment Continued: The Way Ahead -------------- ¶19. (SBU) While Haiti's political leadership and criminal justice system continue to fall short, NGOs such as the Haiti Heritage Foundation continue to develop and move anti-corruption draft legislation through the ULCC to the government and parliament for enactment. Debate of those bills should increase public awareness and draw in the private sector, which until now has been passive. ULCC continues to solicit leads and develop cases. With added personnel and technical capability, this office will give prosecutors better information to construct more substantial criminal cases. Even in the absence of prosecutions, ULCC's completion of its anti-corruption strategy and code of conduct for public officials, and their adoption by the government, would go a long way to raise public and official awareness. SANDERSON