19 / 08-59280
CEDAW/C/HTI/Q/7/Add.1
Committee on the Elimination of Discrimination
against Women
Pre-session working group
Forty-third session
19 January-6 February 2009
Responses to the list of issues and questions with regard
to the consideration of the combined initial and second to seventh periodic reports
Haiti[*]
Article 1
Definition of discrimination
1. The 1987 Constitution of the Republic of Haiti recognizes the equality of men and women without discrimination on the grounds of gender. The equality of citizens is not restricted by any of the other provisions of the 298 articles making up the Constitution, which was approved by the Haitian people by a referendum on 29March 1987, i.e. one year after the fall of the dictatorship which had stifled the people’s aspirations to the rule of law for 29 years.
Well before that date, however, at the beginning of the 1980s, during the period totalitarian rule, two legal breakthroughs were achieved in the struggle against discrimination against women. First, on 4 February 1981, came the publication of a decree applying the International Convention on the Elimination of All Forms of Racial Discrimination. This legal text, which prohibits and criminalizes discrimination, includes gender as a basis for discrimination, but does not define discrimination against women. The same year, on 7 April, Haiti ratified the Convention on the Elimination of All Forms of Discrimination against Women. While the decree of 8 October 1982 recognizes the equal status of spouses and the legal capacity of married women, it does not provide a definition of discrimination against women.
The 1987 Constitution, which is acknowledged to be thoroughly democratic, makes any amendment subject to long and complex procedures. Haiti is committed to creating a propitious legal environment for the defence of women’s rights but needs explicit conceptual tools for this purpose. In this spirit, a definition of discrimination against women and an explicitly worded obligation not to discriminate will be introduced in a gender equality bill which the Ministry for the Status of Women and Women’s Rights (MCFDF) intends to draft as part of its 2008-2009 Plan of Action.
Article 2
Influence of the Convention
2. The MCFDF is striving to disseminate knowledge of the Convention in all areas where ministries cooperate. In the technical councils bringing together the departmental directors of the various ministries in each of the country’s ten geographical departments, the MCFDF, acting though its Directorate for Gender-Mainstreaming (DPAG), is devoting some of the time at meetings to heightening an awareness of the Convention on the Elimination of All Forms of Discrimination against Women and the resulting obligations of States. Each participant receives a copy of the Creole version of the Convention.
Relations between the Ministry of Justice and Public Security (MJSP) and the MCFDF are formally established in agreements on joint action focusing in particular on measures to curb violence against women. The same is true with regard to the National Police. These documents make frequent reference to the Convention and other international instruments ratified by Haiti.
Judicial circles and the general public are gradually being made more aware of women’s rights and gender equality through the practical impact of the latest criminal legislation which renders justice to women who have been sexually assaulted or murdered by their male partners. Over the past two years, the media have widely publicized the severe sentences handed down to rapists by the courts pursuant to the decree of 6 July 2005 on sexual assault. The same is true of a recent trial where the court held that there were no extenuating circumstances for the murder of a woman by her partner. These are signs that the amendments to the Penal Code are helping to change mindsets. Nevertheless a thorough study of conventions on gender equality and the obligations of States deriving therefrom must be included in the standard training given to judges, lawyers and police officers.
3. Article 40 of the Constitution, which provides for the publication and dissemination of laws, orders, decrees, international agreements, treaties and conventions in Creole and French, is not yet generally applied. Documents relating to the life of the nation, such as passports and some administrative forms, are printed in both official languages. Presidential orders are now published simultaneously in both languages. However, this practice is neither consistent nor widespread. An implementing act and regulatory measures in all public institutions will be needed in order to guarantee strict compliance with constitutional provisions on the subject.
Discriminatory laws and practices
4. The gender equality policy proposed by the MCFDF must lead to the creation of a framework conducive to comprehensive legal reform so as to guarantee the elimination of all forms of discrimination against women and the harmonization of national law with the conventions ratified by Haiti. In the meantime, if Parliament were to pass the bills submitted by the MCFDF, that would improve some of the most egregious provisions relating to the status of women under the Civil Code and to the situation of workers, especially female workers, in the Labour Code. Several forms of discrimination were removed from the Penal Code with the decree of 6July 2005. The MCFDF is drafting a bill on the partial decriminalization of abortion.
5. Some practices and customs based on beliefs and traditions still survive. The condemnation of those which fuel discrimination against women must not, however, lead to the destruction of the national culture, which is worth preserving as a whole. The MCFDF draws on positive aspects of national culture, such as the lessons taught by historical heroines and by the lives of exemplary women following the path traced by the women’s rights movement to lay a firm basis for attacking cultural barriers which perpetrate not only discriminatory practices but also the culture of silence which conceals them. In its strategic plan 2008-2010 the MCFDF intends to step up existing campaigns to raise awareness of stereotyping and to extend them to the remotest corners of the country. Education, scientific knowledge, the history of civilizations, the analysis of gender relationships and stereotyping and the emergence of a fairer, inclusive society will gradually lead to a conscious elimination of practices and customs which reinforce women’s lowly status. In addition to awareness-raising campaigns, comprehensive gender training for men and women in all sectors of society must be promoted. To this end, the legal reforms aimed at ensuring equality must be introduced systematically in training programmes.
6. The Government has taken action on aspects of legislation which discriminate against women by proposing and securing the adoption of laws in conformity with the Constitution and in keeping with the Convention. For example, the Penal Code has been amended by decree. Other amendments of the Labour Code and the Civil Code are contained in bills now awaiting adoption by Parliament.
Decree of 6 July 2005 amending the law regarding sexual assault and eliminating discrimination against women in that connection — that is the title of the decree published in Le Moniteur No. 60 of Thursday, 11 August 2005, which makes three substantial amendments to the Penal Code: (1) by formally classifying the crime of rape as sexual assault rather than as an affront to public decency or an immoral act; (2) the abolition of extenuating circumstances for a man who kills his wife and her accomplice caught in the act of committing adultery; (3) the decriminalization of adultery.
In addition, penalties have been increased, notably for rape, which entails a sentence of from ten years to life in prison.
“Article 278 (article 2 of the decree of 6 July 2005)
Any person who commits the crime of rape or who is guilty of committing or attempting any other form of sexual assault accompanied by violence, or threats, or by surprise attack or psychological pressure on a person of either sex shall be punished with ten years’ hard labour.”
These amendments were introduced by means of a reworking of part II, chapter 1, of the Penal Code to alter the classification of crimes and offences. Other procedures have been used, such as the reformulation of a number of articles and the repeal of others.
Change in classification
Part II, chapter 1, section 4, of the Penal Code, which used to be entitled “Immoral acts”, is now entitled “Sexual assault” pursuant to article 1 of the decree of 6 July 2005. Section 4 now deals with sexual assault, the crime of rape and aggravating circumstances such as the victim’s age, the rapist’s position of authority, or group rape. A new section, numbered 4 bis and entitled “Immoral acts”, under article 5 of the decree groups together all the Penal Code’s provisions relating to immoral acts such as incitement to prostitution and indecent acts. This redistribution of the content of articles is strictly confined to part II, chapter 1, sections 4 and 4 bis of the Penal Code and does not alter the order of the articles in the other sections.
Reformulation
Articles 269 and 270 in part II, chapter 1, section 3, of the Penal Code, which deals with excusable crimes, have been reformulated in the light of articles 10 and 11 of the decree of 6 July 2005.
“Article 269 (article 10 of the decree of 6 July 2005)
The murder of a spouse of either sex by the other spouse shall not be excusable if the life of the spouse who committed the murder was not in danger at the time the murder took place.”
Article 269 has thus been separated from the paragraph providing for extenuating circumstances for the crime of a man who kills his wife and/or her accomplice caught in the act of committing adultery.
Article 270 has been reformulated to establish the excusable nature of murder or injuries caused by a reaction to sexual assault.
“Article 270 (article 11 of the decree of 6 July 2005)
If murder or injuries have been caused immediately by a reaction to sexual assault, they shall be deemed to be excusable murder or injuries.”
Repeal of articles
All the articles relating to adultery have been repealed. Articles 284-287 are and remain repealed under article 9 of the decree of 6 July 2005. The decriminalization of adultery led at the same time to the removal of provisions discriminating against women, such as imprisonment for women but not for men.
With regard to court proceedings, an agreement reached in 2006 between the MCFDF, the Ministry of Public Health and Population (MSPP) and the MJSP on the issuance of a medical certificate and its acceptance by the courts eases the burden of proof on victims.
Laws on equality
7. In 2007, the MCFDF referred three bills to the Haitian Parliament, one on domestic work, another on recognition of plaçage or consensual union, and the third on filiation and responsible fatherhood. Parliament has not yet voted on those bills.
Bill amending article 257 of the Labour Code and regulating domestic work
(a) Rationale
Chapter 1, part V, of the 1961 Labour Code is devoted to male and female domestic workers, designated as “Servants” (gens de maison), who are not granted the same rights as persons employed by companies, institutions or other bodies. The 1987 Constitution reflects another view of workers. In both spirit and letter, it considers that all wage earners have the same rights. Since the Constitution is the bedrock on which legal instruments must be developed, the Labour Code has to be recast.
The Ministry for the Status of Women and Women’s Rights recognizes the importance of domestic work in the national economy and its place in the range of employment available to men and women in the country. The MCFDF therefore considers it essential that male and female domestic workers should have the same legally recognized advantages and rights as other workers.
(b) The bill
This proposed legislation amending article 257 of the Labour Code seeks to put an end to certain aspects of domestic work that run counter to human rights. Besides regulating working conditions (hours of work and rest periods, weekly and annual holidays), the bill ensures that domestic workers, who are mostly women, benefit from the advantages set out in the Labour Code for other categories of employee, namely end-of-year bonus and other advantages granted to women. Under a special provision they may follow training courses without loss of wages.
Bill regulating the status of concubines
(a) Rationale
Under the Haitian Civil Code, families are constituted solely within the bonds of marriage. Family members living in wedlock enjoy the usually protections offered by the law, namely: joint ownership of property, equitable sharing of possessions, duty of economic care. However, among the various types of union existing in the country, marriage represents only 18 per cent and plaçage (concubinage) 44 per cent, making it by far the most widespread type of union.
By simply turning a blind eye to plaçage, the Civil Code fails to take reality into account. However, the Constitution of the Republic, adopted after the Civil Code, does not discriminate between families and recognizes all forms of union.
The MCFDF considers it essential to secure the rights of all women who over many years build up the family assets with their partners and who, following a separation, are expelled from the family home without any share of those assets. This bill will enable common-law wives to defend their rights before the courts.