(2012) Liberté de la presse en Haïti : l'effet dissuasif sur les journalistes critiques envers le gouvernement

Freedom of the Press in Haiti University of San Francisco & IJDH 1 Freedom of the Press in Haiti: The Chilling Effect on Journalists Critical of the Government One of the greatest achievements in Haiti since February 7, 1986, is firstly the freedom of expression, the possibility that the men, the women, organizations, the civil society have to say, in peace, what they think, but it is also the possibility for the press to make the relay, and do it objectively... [...] It is therefore necessary to fight every day to preserve this freedom. Marie Laurence Jocelyn Lassègue, Haiti’s former Minister of Culture and Communication, on World Press Freedom Day in 2011 1 September 27, 2012 Freedom of opinion and expression constitute the foundation stone of every free and democratic society. 2 In the fifteen months since the inauguration of Haiti’s President Michel Martelly, who took office in May 2011 after controversial elections, 3 journalists in Haiti have repeatedly complained of poor treatment by government officials. 4 This report analyzes those complaints in light of the freedoms and protections that journalists enjoy under Haitian and international law. The report findings include information gathered in interviews with Haitian and international journalists conducted in June 2012. Interviews documented two troublesome trends journalists encountered in Haiti. The first trend was intimidation, threats, destruction of their media equipment, and retaliation by President Martelly and his administration against progressive journalists for critical reporting, which has created an atmosphere of fear and a chilling effect on journalists’ freedom of expression. The second trend was “stonewalling” wherein journalists critical of the government were consistently denied interviews with governmental officials and access to public information. Both trends infringe on journalists’ rights under Haitian and international law to freedom of expression and access to public information. Haitian journalists producing investigative reports are especially targeted, often facing threats to their life, hindered access to information, blocked access to government departments and the national palace, defamation lawsuits with criminal sanctions, and license revocation, in addition meager salaries and lack of training opportunities. Together, these acts send a message to journalists and civil society engaged in investigating attacks, abuses, irregularities, or illicit acts that they may be threatened or retaliated against for their reporting. It is important to note that conditions for journalists are vastly better now than under Haiti’s coup governments of 1991-1994 and 2004-2006, and under the Francois and Jean-Claude Duvalier dictatorship from 1957-1986. According to Reporters Without Borders (RWB), Haiti ranks 56th out of 179 countries in its 2011 world ranking of press freedoms, which is nine places below the United States (47th). 5 Journalists interviewed generally agreed that President Martelly had improved access to public information compared with his predecessor President René Préval by granting more press conferences and engaging in social media. Only a handful of murders and kidnappings of journalists has been reported in Haiti since President Martelly took office, and his government has not been implicated in any of them. Nonetheless, President Martelly’s aggression against journalists from the beginning of his presidency, coupled Freedom of the Press in Haiti University of San Francisco & IJDH 2 with threats, intimidation, and hindered access to public information is troubling. Freedom of expression provides a vehicle for civic participation and democratic oversight of government management. Lack of effective oversight “gives rise to conduct that runs counter to the essence of a democratic State and opens a door to wrongdoing and unacceptable abuses.” 6 Haiti’s democracy is still young and precarious. Haitians first exercised their right to vote in free and fair elections in 1990, but this right was taken away by the 1991 and 2004 coup d’états. If the Haitian government is serious about strengthening its democracy, it will take affirmative steps to address its ongoing violations of freedom of expression and protect the media. The report offers the following recommendations for protecting freedom of expression and journalists: 1. Under the leadership of the Ministry of Justice, law enforcement and prosecutors should prevent and investigate instances of threats and violence against journalists, punish the perpetrators and ensure that victims receive due compensation. 2. Law enforcement, government actors and the President’s office should refrain from intimidating and threatening journalists, as well as the destroying their press equipment. 3. Haitian law should be amended to eliminate jail sentences in cases of defamation. 4. All public agencies should make every effort to ensure easy, prompt, effective and practical access to public information. 5. The National Palace is encouraged to stop requiring journalists to answer questionnaires requesting information irrelevant to a journalist’s credentials to cover press conferences. 6. The Ministries of Communication and Education should provide funding for education and training for journalists. 7. Journalistic values and professional standards should be strengthened in order for journalists to be respected. 8. Living and working conditions for journalists should be improved. 9. The international community and donor countries should provide the Haitian government and civil society with financial and technical support to ensure that all of the above goals are met. Methodology In-person interviews were conducted from June 20- 29, 2012, in Port-au-Prince by a delegation from the University of San Francisco School of Law. 7 The interviewees were nine international and local Haitian journalists working in or near Port-au-Prince at online and print newspapers and national and community radio stations. Each interview lasted approximately one hour. The interviewee sample was chosen from a spectrum of known conservative, centrist and left-wing news organizations to gauge any correlation between press freedoms and political leanings. President Martelly is considered by many Haitians to be conservative. He has known ties with the family of the former right- wing father and son dictators Francois and Jean-Claude Duvalier, who ruled Haiti under a reign of terror from 1959 to 1986. 8 The President has also publically opposed former President Jean-Bertrand Aristide and his “left-wing” Fanmi Lavalas political party. The names of the news agencies and individuals interviewed are not disclosed in this report to protect their confidentiality and safety. Background on Media in Haiti Radio is by far the most popular news medium in Haiti. More than 90 percent of Haitians have access to radio. 9 There are many radio stations in Haiti, with reception available in almost every corner of the country. Radios are inexpensive to buy and can operate without municipal electricity. Television stations are less common, with about 20 in Port-au-Prince and another 15 in the provinces. The total television audience in Haiti remains below 10 percent of the population due to lack of electricity and resources. 10 Over half the people do not read well, and newspaper circulation is minuscule. Haiti has two national daily newspapers - Le Nouvelliste, with a print run of 15,000 copies, and Le Matin (5,000 copies), and two weekly papers. While 100 percent of the population speaks Haitian Creole, and only 20 percent speaks French, no print newspaper currently exists in Creole. 11 Some Creole news is available online, but internet usage rate was estimated at fewer than 10 percent of the population in 2009. 12 Freedom of the Press in Haiti University of San Francisco & IJDH 3 Radio’s general importance makes it particularly important for elections. Radio programs, especially call- in shows, are Haiti’s most important forum for discussing candidates and parties. As a result, radio stations become contested ground for political advocacy, especially around elections. Candidates, officials and others involved in politics work hard and spend money to obtain favorable coverage. Often, they resort to violence to discourage unfavorable coverage. There is a long history of attacks against Haitian radio stations on account of their coverage of politics. One journalist interviewed explained that the media is not representative of the majority of the population. Those living on $2 or less a day (an estimated 80 percent of the population) do not have a TV channel or radio station that addresses their needs and living situation. A report from Reporters Without Borders found that lack of training of many Haitian journalists limits the availability of diverse, quality news coverage, and some sectors of the population have no access at all. 13 Prior Violence against the Haitian Press The Committee to Protect Journalists recorded nine murders of journalists from 1992 to 2007. 14 As of July 2012, SOS Journalists, a Haitian organization, reported 12 murder cases that were still open for investigation dating back to 2000. A few of the most egregious assault and murder cases against Haitian journalists between 2000 and 2005 are described below to offer a context of the historical threats the media has received. On April 3, 2000, Haiti’s most popular and influential radio journalist, Jean Dominique, was killed. His murder occurred just before the elections held on May 21 of that year. He was shot as he drove into his radio station, Haiti Inter, for the morning news. Over ten years later, there have been no convictions in the killing, but the principle suspect is Dany Toussaint, a senate candidate at the time, who eventually prevailed in the May 2000 elections. Toussaint had clashed publicly with Dominique over Haiti-Inter’s coverage of politics, especially the elections. In 1980, Dominique had been forced into exile for his editorial critical of the Duvalier dictatorship, and his radio station was destroyed. He also fled from a hostile government in 1991. � In late 2003, Frenot Cajuste’s radio station was burned down by political opponents. Cajuste was a prosecutor, who later became a judge. � On October 30, 2003, Radio Caraibes, a station in Port-au-Prince, was attacked by gunmen who drove by, shooting. Witnesses reported that the car had official government plates. The government claimed that the plates were probably stolen. � On January 14, 2004, armed men in a truck attacked an antenna facility on a hill overlooking Port-au- Prince that hosted antennae from a variety of radio and television stations. The facility did not host journalists or station offices, but the attack did disable the broadcasting capacity of eight radio stations, putting them off the air for several days until repairs were made. On February 21, 2004, journalist Pierre Elisem, director and owner of Radio Hispaniola, in the northern city of Trou du Nord, was shot, and paralyzed, and his station was burned down. He reported threats from government supporters angry about his criticism of the government. � On February 9, 2005, gunmen shot and wounded radio host Raoul Saint-Louis as he sat in his car outside Radio Megastar where he worked. Saint- Louis reported that he had received telephone threats from people criticizing his coverage of the government. � In July 2005, Jacques Roche, who presented a popular television show and wrote for the newspaper Le Matin, was kidnaped and murdered. His handcuffed and mutilated body was found in Port-au-Prince. Freedom of the Press in Haiti University of San Francisco & IJDH 4 Since President Martelly took office in May 2011, the Haitian press has experienced hostility from the President himself, his bodyguards, members of the government, and his supporters. While some journalists felt that they have always been targeted by the government and nothing has changed under the Martelly administration, others felt that the increased verbal insults and hostility by the President created a more threatening climate for the press. Working as a journalist in Haiti is particularly risky for those who are openly critical of the government’s lack of transparency or accountability. They work in the face of threats to their life and safety; a lack of access to information, government sources and press conferences at the National Palace; low pay; and termination, license revocation and defamation lawsuits that are costly to defend. These hardships impact their lives, their work, and their ability to move freely. According to the U.S. State Department, “some journalists practice self-censorship on stories related to drug trafficking or allegations of business and political corruption due to past patterns of retribution against investigative reporting, which risked reporters’ livelihood and possibly their physical security.” 15 Many of the journalists we interviewed stated that they try not to leave their homes at night or attend public events with large crowds where it would be easy to be targeted for assassination. Freedom of the press in Haiti is further constrained by the weak and under-resourced law enforcement and judicial system, and widespread insecurity. 16 The murder, intimidation of and/or threats to journalists, as well as the destruction of their communications equipment, are intended to silence them, and constitute violations the fundamental rights of journalists and restrict freedom of expression. It is the duty of the Haitian government to prevent and investigate such occurrences, to punish their perpetrators and to ensure that victims receive due compensation. 17 This duty extends to acts by government actors and “private persons or entities that would impair the enjoyment of the freedoms of opinion and expression.” 18 a. Threats / Intimidation According to the Inter-American Commission on Human Rights (IACHR) Special Rapporteur on Freedom of Expression, the intimidation and threatening of journalists, as well as the destruction of press materials, is generally intended to eliminate journalists investigating attacks, abuses, irregularities or illegal acts of any kind committed by public officials, organizations or private individuals. The Special Rapporteur added that “this is done to make sure that the investigations are not completed or never receive the public debate they deserve, Report Findings I. Intimidation, threats, and violence against journalists Every Haitian has the right to express his opinions freely on any matter by any means he chooses. Haitian Constitution, Art. 28. Journalists shall freely exercise their profession within the framework of the law. Such exercise may not be subject to any authorization or censorship, except in the case of war. Haitian Constitution, Art. 28-1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice. American Convention on Human Rights, Art. 13(1) & International Covenant on Civil and Political Rights, Art.19(2). Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Universal Declaration of Human Rights, Art. 19. Freedom of the Press in Haiti University of San Francisco & IJDH 5 or simply as a form of reprisal for the investigation itself. Such acts are used as an instrument of intimidation that sends a message to members of civil society engaged in investigating attacks, abuses, irregularities, or illicit acts of any kind. This practice seeks to silence the press in its watchdog role.” 19 Many of the intimidation tactics described by the Special Rapporteur have been used by Haitian law enforcement, a private media owner, alleged supporters of the President, and other government officials since President Martelly took office. On June 22, 2011, hosts of the radio show “They said it” on Radio Prévention in Petit-Goâve, Ernest Joseph and Wolf “Duralph” François, were arrested and imprisoned on charges of defamation, disturbing public order and destruction of public property. 20 Police officers sealed the entrance to the radio station and confiscated the transmitter and other equipment, which are owned by Joseph. Reporters Without Borders released a statement calling the arrest an abuse of authority and form of censorship. 21 Imprisonment can lead to endangerment of physical safety. Upon his release from prison almost a month later, François complained that the poor conditions of his detention aggravated his health, resulting in pneumonia and a kidney condition. He also said that he was beaten in his cell by prisoners. 22 While both journalists have been releases, charges remain pending against them. On May 22, 2011, agents of the Departmental Unit for the Maintenance of Order (UDMO) in Gonaives ransacked and broke equipment of journalists covering the visit of President Martelly following a fire in the Gonaives public market. 23 On April 5, 2011, five journalists were fired at state- owned Télévision Nationale d’Haïti (TNH) for allegations of unprofessionalism and making false public statements on the radio that were critical of then Presidential candidate Michel Martelly during the second round of presidential elections. 24 Reporters Without Borders stated that the termination “seems to be a case of political persecution and, as such is a very bad start for Michel Martelly, who was proclaimed president-elect a week ago.” 25 Reporters Without Borders reported that the termination occurred shortly after a visit by the President-elect. 26 The dismissed journalists filed a complaint with the Anti-Corruption Unit accusing TNH’s director of airing biased coverage and propaganda in favor of then Presidential candidate Michel Martelly during the second round of presidential elections. 27 On December 8, 2010, some individuals claiming to work with candidate Martelly ransacked the local station Radio Lebon FM in Cayes and threatened the journalists after the publication of preliminary results from legislative and presidential elections. 28 A journalist with a leftist weekly newspaper that has been critical of the Martelly government has received threatening calls every two to three months since President Martelly took office in May 2011. One of the callers identified himself to the journalist as Louis-Jodel Chamblain, who was a member of FRAPH, a military group that was involved in the 1991 coup d’état of the government under President Jean Bertrand Aristide. On one occasion the caller threatened, “If you do not stop what you are doing, you are going to disappear - we are going to disappear you.” 29 The identity of the caller has not been verified. On September 20, 2012, three journalists from the newspaper Le Nouvelliste were arrested for not giving up their video and still photography equipment at the request of police officers who threatened to erase their footage. The three journalists were Natasha Bazelais, Jean Marc Abelard and Jeanty Augustin, who were filming at the scene of an accident. The journalists are being charged with disturbing the peace. 30 b. The Government’s Failure to Protect Journalists from Violence As of September , two murders of journalists were already reported for 2012. The local government has blocked investigation and prosecution in one of the cases, and has been unable to charge a suspect in the other case. 31 Under the American Convention on Human Rights and other international law instruments, States have the obligation to effectively investigate the events surrounding the murder of journalists and to punish the perpetrators. 32 The IACHR has asserted that a State’s failure to carry out an effective and thorough investigation of the murder of a journalist and to apply criminal sanctions has a serious impact on society. Freedom of the Press in Haiti University of San Francisco & IJDH 6 Crimes against journalists have an intimidating effect on all citizens because it “inspires fear of reporting attacks, abuses and illegal activities of any kind.” 33 This intimidating effect can only be avoided if Haiti takes concerted government action to punish those responsible for assaulting or murdering journalists. In this way, the Haitian government can send a strong, direct message to society that there will be no tolerance for those who engage in a grave violation of the right to freedom of expression. On March 17, 2012, a journalist was shot by a government employee, and the local mayor is obstructing the government investigation and prosecution. Wendy Phele, a 21-year old correspondent from Radio Téle Zénith, was shot by the Mayor of Thomonde's body guard while attending a speech by the mayor. He survived the shooting. 34 The prosecutor made arrangements with the Mayor to talk to the accused bodyguard, and after questioning, was prepared to arrest him but the Mayor refused to allow the arrest and his people threatened the prosecutor. SOS journalists, Reporters Without Borders and other groups pressured the Ministry of the Interior to remove the Mayor from office to prevent him from obstructing justice, arguing that failure to do so made the Ministry complicit in the attempted assassination. 35 They also launched a public campaign against a number of Haitian governmental authorities whom they considered enemies and “predators” of the freedom of the press. An arrest warrant was issued and the Mayor promised to bring the accused, but as of July 2012, the accused had not been arrested. 36 On March 5, 2012, Jean Liphète Nelson, director of Radio Boukman and director-general of NGO Hands Together was murdered. 37 Radio Boukman was launched in 2006 and was the only news media based in Cité Soleil, a poor shantytown in Port-au-Prince. 38 Four other people were in the car with Nelson when he was shot. One of the other passengers was killed and another one was wounded in both legs. The motive for the killing has not been officially determined. But the Office of the Special Rapporteur for Freedom of Expression issued a press release requesting that Haitian authorities investigate the possibility that the death was tied to the journalist’s professional activities and urging them to conduct a thorough investigation to clarify the circumstances of the crime, to identify and punish those responsible, and to ensure just compensation for the victims’ next of kin. 39 Four weeks prior to the killing, Mr. Nelson was kidnapped and threatened. 40 In December 2010, there were several incidents of journalists being harassed and mistreated during violent street protests after the announcement of the presidential and legislative elections. 41 c. Interference with Journalistic Activities The Haitian government must also prohibit and discourage the direct or indirect interference by law enforcement, the President and his administration in the work of the media and also pressure exerted upon journalists. 42 Full enjoyment of the right to expression requires that the media be able to receive the information necessary to carry out its reporting function. Interference, while not rising to a serious level of violence or threats of violence, violates freedom of expression by attempting to prevent journalists from completing their work. President Martelly himself has expelled journalists from press conferences and threatened journalists who pose questions to him that are critical. All journalists interviewed said that the President has been less aggressive with the press over the last few months, a trend they hope continues. On July 28, 2011, President Martelly’s security guards jostled and expelled journalists in Jacmel from the conference room on a visit he was doing in the city. 43 On July 27, 2011, President Martelly at the launch of the travel magazine, Magic Haiti, accused the press of being responsible for projecting a negative image of Haiti to the outside and asked the press to shut up. The President threatened to use force against those who spoke ill of the country, including the press. 44 On March 9, 2011, candidate President Martelly was verbally aggressive against journalist Gotson Pierre during a debate concerning the second round of presidential and legislative elections. Pierre asked Martelly about allegations of an outstanding debt in the United States. Martelly avoided the issue and Pierre responded that it was inappropriate for Martelly to avoid responsibility for his actions because, as the possible future president of Haiti, he needed to be accountable for his actions. Martelly became angry, Freedom of the Press in Haiti University of San Francisco & IJDH 7 lost his temper and shouted at the crowd, alluding to the possibility of another riot against journalists similar to a riot that took place in 2006 after the elections of President René Préval. Pierre and other journalists in the room interpreted the comments as a threat from Martelly to incite a violent riot against them if they continued to discredit him. d. Retaliatory Defamation Lawsuits One trend that worries journalists is the increase in defamation lawsuits threatened or filed by the Haitian government against the press for statements made about public officials or private figures in the public arena. Defamation in Haiti carries both criminal and civil penalties, so journalists face deprivation of their freedom, civil damages and litigation costs in a legal system where the elite can often buy justice. The Inter-American Commission has stated that the criminalization of speech directed toward public officials or private individuals voluntarily engaged in matters of public interest is a disproportionate punishment compared to the important role that freedom of expression and information plays in a democratic system. “Such sanctions clearly cannot be justified, particularly in light of the adequacy of non-criminal sanctions in redressing any harm to individuals’ reputations.” 45 In a representative democracy, public officials, or anyone involved in matters of public interest, must be held accountable to the men and women they represent. 46 Journalists that have received summons or “cease and desist” letters for defamation claim that the suits are frivolous and intended as retaliation for their political views or critique of President Martelly or other government officials. Of the four defamation proceedings against journalists researched by the authors of this report, three were brought by the Haitian government, two of which were filed in Haitian court and one in U.S. court. All three of the cases were abandoned when the journalists responded to the summons or “cease and desist” letter. (The fourth case was filed as this report was coming out, so no result is known.) In September 2012, Haiti’s prime minister sued a Haitian-American weekly newspaper, Haiti- Observateur, in U.S. court for defamation over its reporting on the sale of a telecommunications company acquired by the Haitian government. 47 The newspaper has been publishing since 1971 and serves Haiti’s diaspora communities in New York, Florida, Montreal and the Caribbean. The lawsuit said that the newspaper falsely and maliciously reported that the Prime Minister, a former telecommunications executive, orchestrated the sale of the company, and that the Prime Minister fixed the $25 million sale price and stands to receive the ‘‘lion’s share’’ of the proceeds. 48 In April 2012, two of the five journalists who were fired at state-owned Télévision Nationale d’Haïti (TNH) for unprofessionalism and making false public statements on the radio that were critical of then Presidential candidate Michel Martelly were sued for defamation by the director of the TNH. (see section (a) Threats / Intimidation above) They are facing a jail sentence of three years and 50 million goudes (1.25 million dollars) in damages. As of July 2012, the lawsuit was pending in the Court of Appeals. In January 2012, the online news website Defend Haiti based in Orlando, Florida, which caters to the English- speaking Haitian Diaspora, received a “cease and desist” letter from a lawyer representing the Government of Haiti. The letter accused the publication of waging a “smear campaign against the Haitian government” and demanded that their website retract the article or face a government claim for redress for injury. Defend Haiti responded to the accusations in writing and has not received any further communications on the matter. 49 The news agency’s founder said that, after receiving the letter, he stopped reporting on the issue that was the subject of the government’s complaint. The founder said that journalists in Haiti have reported being harassed, and he was worried that his family in Haiti might be threatened. 50 In February, 2012, Newspaper Haiti Liberté was sued for defamation by First Lady Sofia Martelly. Haiti Liberté had documented a clash between President Martelly’s security detail and students of the University of Haiti (UEH). President Martelly attempted to attend a UEH symposium on ethnology and nation-building policy, to which he had not been invited. When UEH students refused to allow Martelly into the event, a clash between the students and Martelly’s supporters broke out, ultimately ending in Haiti’s National Police setting off tear gas and firing gunshots into the air. 51 At least four students were injured and there was damage and Freedom of the Press in Haiti University of San Francisco & IJDH 8 vandalism done to the university. The First Lady, Sofia Martelly, filed a defamation lawsuit in Haitian court against the newspaper Haiti Liberté, asking it to recant and take down its article on the UEH clash. Haiti Liberté responded to the summons, and Mrs. Martelly has not taken further action. The Haitian government is failing to meet its obligation under the Haitian Constitution, Art. 28-1, to protect the freedom of opinion and the freedom of expression of journalists from violence, threats, intimidation and retaliation by the Haitian government, law enforcement, local officials, and the President himself. An independent and critical press is fundamental to ensuring respect for other liberties that form part of a democratic system of government and the rule of law. As the IACHR has explained, in democracies such as Haiti where the institutions responsible for oversight of the conduct and functions of the authorities are weak, “the press has become the primary instrument for oversight and dissemination of information about government activities.” 52 Despite the threats and violence, journalists continue to fight for free press. One renowned Haitian journalist said, “People know that if they intimidate me, I am still going to do [my job]. People could kill me but I have not recently been exposed to that. Because of what I am doing, I know I will always face that.” Another journalist noted, “[If] we start becoming afraid, we will accomplish nothing.” II. Access to Public Information Access to information held by the State is a fundamental right of every individual, as well as a pillar of democracy. 53 As the Inter-American Court of Human Rights has pointed out, “a society that is not well informed is not a society that is truly free.” 54 Access to information is also fundamental to the principle of transparency in public governance. 55 Based on these principles, access to information held by the Haitian government is a fundamental right of individuals and the government has the obligation to guarantee it. Haitians therefore have individual rights to request documentation and information held in public archives or processed by the government. 56 These obligations require that the Haitian government make every effort to ensure easy, prompt, effective and practical access to public information. As stated earlier in this report, Haitians have difficulty accessing information in general. Only 20 percent of the population understands French, yet all the print newspapers in Haiti are in French. Less than 10 percent of the population can afford to access the internet or television. These difficulties make it even more critical for the Haitian government to allow access to public information and to stop patterns of stonewalling. a. Government Stonewalling of public information For certain progressive journalists, the government has made it close to impossible to investigate or locate public contracts and audits by refusing to respond to requests for information, requests for meetings or phone calls. For example, journalists from an investigative online paper followed up a request from an international financial institution regarding a contract signed between the Haitian government and another government for an earthquake reconstruction project. While Article 40 of the Constitution requires that the Haitian government publicize international agreements, public officials repeatedly hung up on calls made by The State has the obligation to publicize in the oral, written and televised press in the Creole and French languages all laws, orders, decrees, international agreements, treaties, and conventions on everything affecting the national life, except for information concerning national security. Journalists may not be compelled to reveal their sources. However, it is their duty to verify the authenticity and accuracy of information. It is also their obligation to respect the ethics of their profession. Haitian Constitution, Arts. 28 and 40. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions. American Convention on Human Rights, Art. 13(3). Freedom of the Press in Haiti University of San Francisco & IJDH 9 the journalists researching the project or refused to speak about it. The journalist went to a local ministry and was told, “The Constitution is just a bunch of words that no one pays attention to.” 57 According to one journalist, the government is more likely to grant meetings to foreign journalists than to Haitian journalists. For example, one ministry immediately granted an interview with a French press agency, whereas a team of Haitian journalists received no response from the ministry after making 12 phone calls, sending one letter and appearing in person. 58 A Haitian journalist with a mainstream international news agency reported that the ability to access information is highly dependent on the existence of strong personal contacts within the government. While he did not indicate a decline in his own access to information under Martelly’s administration, he qualified his statement by saying that he has good contacts in the current administration and that “It’s never a real democracy and [the Haitian government] has never believed that there should be total access to information. [I] [c]an’t say that we have less access than before. We are at 10%.” Left-wing journalists often lack contacts in the current government and are unable to access information needed to do their investigations. In order to be granted access to enter the National Palace in Port-au-Prince for press conferences, journalists are required to fill out a form. The form asks general identification questions, but it also requires the names and addresses of journalists’ spouses, children and neighbors. This practice was documented in two of the seven interviews, suggesting the policy is discriminatory; allowing the government to determine which journalists may or may not have access to information. 59 The two journalists of whom family information was requested did not submit the form, stating that the request of personal and irrelevant information reminded them of the invasive questions by the Tonton Macoutes under the Duvalier dictatorship, who collected information to persecute those critical of the government. The form requesting family information is new under the Martelly administration. At a February 2012 press conference, journalist Jackson Alexis of Radio Kiskeya questioned President Martelly about allegations that he denounced his nationality (which would disqualify him as president under the Haitian Constitution). President Martelly responded by asking Alexis which media outlet he worked for. When Alexis told him that he was with Radio Kiskeya, Mr. Martelly said that he would not respond. In April 2012, a Dominican Republic journalist, Nuria Piera, implicated President Martelly in receiving 2.5 million dollars in kickbacks for reconstruction contracts with the Dominican Republic. 60 One interviewee reported that international and Haitian journalists were not able to obtain information on the allegations from government officials in Haiti, and no audit of the reconstruction contracts has been made available to the Haitian public. The only information available to investigative journalists was from the Dominican government. 61 b. Government strategy and tactics to control the media Several journalists spoke about an internal meeting initiated by the First Lady, Sophia Martelly, in February 2012 at the National Palace to explore creating a law to regulate the press. 62 Some interviewees feared that the government’s intention was to control the rights of the media. Journalists protested the meeting, and it appears that no further action has been taken on the proposed law. Last year, President Martelly also proposed reinstating the National Army with a National Intelligence Service (SIN), which, among other things, would be tasked with surveillance of journalists. 63 There is concern among journalists that the Martelly administration is trying to control the media by replacing investigative journalism with its own messaging. Interviewees generally agreed that President Martelly has improved access to public information versus his predecessor President Préval by granting more press conferences. Both President Martelly and the Prime Minister release frequent and official messaging via Facebook and Twitter, which is a positive step towards access and transparency. However, journalists wonder if the administration is using social media and press conferences to control the messaging and reduce the public’s reliance on the independent media. 62 Freedom of the Press in Haiti University of San Francisco & IJDH 10 Conclusion Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of democracy and human rights. The Haitian government has a duty to protect and promote a free press, but observations and personal experiences of Haitian journalists reveal a troubling trend of stonewalling the press, and intimidation and attacks on journalists, particularly leftist journalists who are critical of the current government. As one journalist interviewed said: “There have been journalists who have fallen, some who have been killed, some who have disappeared, so for [those journalists], they are always fighting for their country and the Haitian people. They have endured a long battle. The President and Haitian people need to understand that. The Government needs the press in order for them to express their issues and ideas, but the State needs journalists to investigate and report these issues. Both have a right to seek and speak the truth.” The new Haitian Minister of Communication, Jean Gardy, who took office in May 2012, has committed to fighting against extreme poverty among journalists and offer media workers health and life insurance, and education. 63 In September 2012, his office initiated a meeting with the President and Prime Minister, several media owners, and Haitian media watchdog SOS Watch to discuss freedom of expression. 64 This is an encouraging gesture that will hopefully result in more protections for Haitians and journalists. Recommendations for the protection of free press in Haiti 1. Under the leadership of the Ministry of Justice, law enforcement and prosecutors should prevent and investigate instances of threats and violence against journalists, punish the perpetrators and ensure that victims receive due compensation. 2. Law enforcement, government actors and the President’s office should refrain from intimidating and threatening journalists, as well as the destroying their press equipment. 3. Haitian law should be amended to eliminate jail sentences in cases of defamation. 4. All public agencies should make every effort to ensure easy, prompt, effective and practical access to public information. 5. The National Palace is encouraged to stop requiring journalists to answer questionnaires requesting information irrelevant to a journalist’s credentials to cover press conferences. 6. The Ministries of Communication and Education should provide funding for education and training for journalists. 7. Journalistic values and professional standards should be strengthened in order for journalists to be respected. 8. Living and working conditions for journalists should be improved. 9. The international community and donor countries should provide the Haitian government and civil society with financial and technical support to ensure that all of the above goals are met. University of San Francisco (USF) law faculty member Nicole Phillips and USF students Kate O’Laughlin, Lynn Nguyen and Laura Tran authored this report. Ms. Phillips is also a staff attorney with the Institute for Justice & Democracy in Haiti (IJDH). The authors thank Carolyn Boyd, Brian Concannon, Dolores Donovan, and Beatrice Lindstrom for their edits; Alice Gomez for her assistance with citations; and Philip Goldsmith for report production. Freedom of the Press in Haiti University of San Francisco & IJDH 11 1 World Press Freedom Day, Haiti Libre, May 3, 2011, http://www.haitilibre.com/en/news-2861-haiti-communication-world-press- freedom-day.html. 2 Human Rights Comm., 102nd Sess., General Comment 34, Freedoms of Opinion and Expression, U.N. Doc. CCPR/C/GC/34 (July 11-29, 2011) [hereinafter Human Rights Comm.]. 3 See Nicole Phillips, Michel Martelly’s Short Honeymoon, The Fresh Outlook, May 3, 2011, available at http://ijdh.org/ archives/18518; Nicole Phillips & Nicolas Pascal, Hold New, Open, Fair Elections, Miami Herald, Jan. 3, 2011, available at http://ijdh.org/archives/16240; Haiti’s November 28 Elections: Trying to Legitimize the Illegitimate (Inst. for Justice & Democracy in Haiti, Boston, Mass.), Nov. 22, 2010, available at http://ijdh.org/wordpress/wp-content/uploads/2010/11/ Election-Report-11-23-2010.pdf. 4 See U.S. Dep’t of State, 2011 Country Reports on Human Rights Practices - Haiti, May 24, 2012, available at http://www.unhcr. org/refworld/docid/4fc75a966a.html [hereinafter Human Rights Practices – Haiti]; See also The Platform of Haitian Human Rights Organizations (POHDH), Déclaration de la POHDH à l’occasion de la Journée Mondiale de la liberté de la pr esse, May 3, 2012, http://www.pohdh.org/article.php3?id_article=179. 5 Freedom of Press is Progressing in Haiti, Haiti Libre, Jan. 3, 2012, http://www.haitilibre.com/en/news-4837-haiti-politic- freedom-of-the-press-is-progressing-in-haiti.html. 6 See Alicia Pierini, Valentín Lorences & María Inés Tornabene, Habeas Data: Derecho a la Intimidad 31 (Editorial Universidad, 1999). 7 The delegation was led by USF law faculty member Nicole Phillips, and included USF students Kate Finch, Aditi Fruitwala, Brit Mark, Kate O’Laughlin, Lynn Nguyen, Samantha Silva, and Laura Tran. Ms. Phillips is also a staff attorney with the Institute for Justice & Democracy in Haiti (IJDH) 8 Nicole Skibola, Sovereignty, Stability and Sweet Mickey: What is Going on in Haiti?, Huffington Post, Mar. 11, 2011, http:// www.huffingtonpost.com/nicole-skibola/post_1816_b_833953.html; Jeb Sprague, Michel Martelly, Stealth Duvalierist, Haiti L iberté , Vol. 4, No. 22, Dec. 15-22, 2010, available at http://www.haiti-liberte.com/archives/volume4-22/MichelMartelly_ Stealth_Duvalierist.asp. 9 Freedom House, Freedom in the World 2012 - Haiti, Aug. 22, 2012, available at http://www.unhcr.org/refworld/ docid/503c722d28.html. 10 Id. 11 June 22, 2012 interview with USF delegation. 12 Freedom House, Freedom of the Press 2010 - Haiti, Sept. 30, 2010, available at http://www.unhcr.org/refworld/ docid/4ca44d921e.html. 13 Reporters Without Borders, World Report - Haiti, Aug. 2011, available at http://www.unhcr.org/refworld/docid/4d59463d28.html 14 Comm. to Protect Journalists, cpj.org, http://cpj.org/killed/americas/haiti/ (last visited Sept. 23,2012). The names of the journalists murdered include: Jean-Remy Badio, Robenson Laraque, Ricardo Ortega, Brignol Lindor, Jean Leopold Dominique, Alix Joseph, Jacques Roches, Gerad Denoze, and Robinson Joseph. 15 Human Rights Practices - Haiti, supra note 4. 16 Freedom House, Freedom in the World 2012 - Haiti, Aug. 22 , 2012, available at http://www.unhcr.org/refworld/ docid/503c722d28.html. 17 IACHR, Declaration of Principles on Freedom of Expression, at ¶9 (2000). 18 Human Rights Comm., supra note 2 at ¶7. 19 IACHR, Background and Interpretation of the Declaration of Principles of Freedom of Expression, at ¶39, available at http:// www.oas.org/en/iachr/expression/showarticle.asp?artID=132&lID=1. 20 Two Petit-Goâve radio journalists arbitrarily detained, Reporters Without Borders, June 29, 2011, http://en.rsf.org/haiti-two- petit-goave-radio-journalists-29-06-2011,40551.html. 21 Id. 22 Liberation of Wolf «  Duralph » François, Haiti Libre, July 19, 2011, http://www.haitilibre.com/en/news-3406-haiti-justice- liberation-of-wolf-duralph-francois.html. 23 Id. 24 RWB requests the intervention of Martelly, Reporters without Borders, Apr. 29, 2011, available at http://www.haitilibre.com/ en/news-2834-haiti-justice-rwb-requests-the-intervention-of-martelly.html [hereinafter Reporters Without Borders]. The five terminated journalists were Jacques Innocent, Guemsly Saint-Preux, Stéphane Cadet, Josias Pierre and former editor in chief Eddy Jackson Alexis. 25 State TV Chief Fires Three Journalists, Brings Criminal Defamation Suit Against Them, Reporters Without Borders, Apr. 12, 2011, I http://www.unhcr.org/refworld/docid/4da7fcfb2.html. 26 Reporters Without Borders, supra note 24. 27 Id. 28 Jacques Desrosiers, Haïti-Presse-Pouvoir : L’AJH scandalisée par l’attitude « grossière » de Martelly à l’égard des journalistes, AlterPress, Oct. 11, 2011,http://www.alterpresse.org/spip.php?article11702. Freedom of the Press in Haiti University of San Francisco & IJDH 12 29 June 20, 2012 interview with USF delegation. 30 Three Journalists from Le Nouvelliste Arrested, defend.ht, September 20, 2012, available at http://defend.ht/news/articles/ media/3361-three-journalists-from-le-nouvelliste-arrested. 31 See facts immediately below regarding death of Wendy Phele and Jean Liphète Nelson. 32 IACHR, supra note 19, at ¶40. 33 Miranda v. Mexico, Case 11.739, Inter-Am. Comm’n H.R., Report No. 50/90, OAS/Ser/L/V/II, doc. 57 (1999). 34 Wendy Phele continue de réclamer justice, Radio Vision 2000, June 26, 2012, http://radiovision2000haiti.net/public/haitijustice- wendy-phele-continue-de-reclamer-justice/. 35 Thierry Mayard-Paul dans le collimateur des défenseurs de la presse, Le Nouvelliste , June 15, 2012, http://www.lenouvelliste. com/article4.php?newsid=106185. 36 June 26, 2012 interview with USF delegation. 37 June 20, 2012 interview with USF delegation; See also http://rjrnewsonline.com/news/regional/reporters-without-borders- condemns-murder-journalist-haiti. 38 Radio Boukman Resumes Broadcasting Two Weeks After Director’s Murder, Reporters Without Borders, Mar. 23, 2012, available at http://www.unhcr.org/refworld/docid/4f744bf52.html. 39 Office of the Special Rapporteur Condemns Murder of Journalist in Haiti, Inter-Am. Comm’n H.R., Press Release R26/12, Mar. 8, 2012, http://www.oas.org/en/iachr/expression/showarticle.asp?artID=886&lID=1. 40 Two Hands Together Staff Shot and Killed, handstogether .org, http://www.handstogether.org/news/2012/two-hands-together- staff-shot-and-killed [last visited September 19, 2012]. 41 Freedom House, Freedom of the Press 2011 - Haiti, Sept. 23, 2011, available at http://www.unhcr.org/refworld/ docid/4e7c84fb28.html; See alsoMedia get off relatively lightly in post-election rioting, but for how much longer?, Reporters W ithout Borders, Dec. 10, 2010, available at http://www.unhcr.org/refworld/docid/4d071e6617.html. 42 IACHR, Declaration of Principles on Freedom of Expression, at ¶5 (2000), which says, “Direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law.” 43 Desrosiers, supra note 28. 44 Id. 45 Article XIX, Defining Defamation, Principles of Freedom of Expression and Protection of Reputation, Principle 4. 46 IACHR, supra note 19, at ¶43. 47 Jennifer Kay, Haiti’s Lamothe sues US newspaper for defamation, Associated Press, Sept. 12, 2012, http://bigstory.ap.org/ article/haitis-lamothe-sues-us-newspaper-defamation-0. 48 Id. 49 Sara Rafsky, Was letter to Haiti website just part of Martelly’s theatrics? Comm. to Protect Journalists Blog (Feb. 24, 2012), http://www.cpj.org/blog/2012/02/was-letter-to-haiti-website-just-part-of-martellys.php#more. 50 Kay, supra note 45. 51 June 20, 2012 interview with USF delegation with USF delegation. 52 IACHR, supra note 19, at ¶40. 53 IACHR, Declaration of Principles on Freedom of Expression, ¶ 4. 54 IACHR, OC 5/85, Series A Nº 5, supra note 15, at ¶ 70. 55 See Pierini, Lorences & Tornabene, supra note 6. 56 IACHR, supra note 19. 57 June 21, 2012 interview with USF delegation. 58 Id. 59 June 22, 2012 interview and June 26, 2012 interview with USF delegation. 60 Ezra Fieser & Jacqueline Charles, Dominican authorities investigating Haitian contracts of senator, Miami Herald, Apr. 2, 2012, http://www.miamiherald.com/2012/04/02/2728451/dominican-authorities-investigating.html. 61 Id. 62 Id. 63 Haiti’s army: Back to the future, Economist (Americas View Blog) (Sept. 30, 2011), http://www.economist.com/blogs/ americasview/2011/09/haiti’s-army; June 26, 2012 interview with USF delegation. 64 June 22, 2012 interview with USF delegation. 65 Installation of the New Minister of Communication, Haiti Libre, May 18, 2012, http://www.haitilibre.com/en/news-5676-haiti- politic-installation-of-the-new-minister-of-communication.html. 66 Strengthening of the Freedom of Press and of Structures of the Press, Haiti Libre, Sept. 2, 2012, http://www.haitilibre.com/en/ news-6539-haiti-politic-strengthening-of-the-freedom-of-speech-and-of-structures-of-the-press.html.