Is ‘Toto’ Constant on his way to being freed? Haiti prosecutor says he has no files

Haitian death squad leader Emmanuel “Toto” Constant, who was jailed after his deportation to Haiti by the Trump administration nearly three weeks ago, could soon find himself a free man.

The government’s chief prosecutor in the northern city of Gonaives assigned to his case told the Miami Herald that he doesn’t have any information about Constant’s alleged crimes or his 2000 murder conviction in absentia for the 1994 massacre in the seaside slum of Raboteau, just outside of Gonaives and north of the capital.

“I don’t have any anything in my hands,” Serard Gasius, the prosecutor, said by telephone. “If there are no records or anything, I don’t think you can hold him in prison. He has rights.”

The day after his return to Haiti, Michael Kozak, the acting assistant secretary for the U.S. Department of State’s Bureau of Western Hemisphere Affairs, said on Twitter: “We look to Haitian authorities to pursue justice for victims of the Raboteau massacre & other crimes for which Constant must be held accountable. Haitian justice is promoting rule of law and ending impunity.”

On Thursday, the country’s justice minister, Lucmane Délile, was abruptly fired and replaced by Haitian President Jovenel Moïse via a presidential decree with Rockfeller Vincent.

A controversial figure, Vincent is a former chief prosecutor from Cap-Haïtien who was removed from the judiciary in 2017 for lack of performance but earlier this year was appointed by Moïse to head the country’s anti-corruption unit.

Délile’s dismissal came just hours after he held a press conference in which he condemned a recent demonstration of force by armed gangs through the streets of Port-au-Prince. The gang members were allowed to freely parade, even though the day before police aggressively fired tear gas against demonstrators during a peaceful sit-in.

It is unclear what the changes mean for Constant, who for now remains in a jail cell in the city of St. Marc, not far from Gonaives.

Constant is the founder of the Front for the Advancement and Progress of Haiti, or FRAPH. Under his leadership in the early 1990s, it was considered a brutal paramilitary force, accused of carrying out the extrajudicial killings of an estimated 3,000 to 4,000 Haitians in the aftermath of the 1991 military coup that ousted President Jean-Bertrand Aristide.

In a rare “60 Minutes” interview, Constant later said that while running FRAPH, which was also accused of rape and torture, he was on the Central Intelligence Agency’s payroll.

Two months after the Clinton administration restored Aristide to power in 1994 with the aid of 20,000 U.S. troops, Constant fled to the U.S. on a visa via Puerto Rico. He later made his way to New York, where attempts by human rights groups to return him to Haiti to stand trial were blocked by the U.S. government.

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But in May, he showed up on a deportation flight manifest with 100 other Haitian detainees, listed as a “High Profile Removal.” He had been released into the Department of Homeland Security’s custody after serving 12 years on convictions for grand larceny and mortgage fraud.

After his scheduled deportation was exposed by the Haiti Relief and Reconstruction Watch blog, it was halted.

Last month, however, the Trump administration finally succeeded in returning him to Haiti, where he was immediately arrested.

“For years, the international community has noted the dysfunction of Haiti’s judicial system. So this would be a stark symptom of how dysfunctional the system is: It has no records of convictions in high profile murder trials,” said Robert Maguire, the former chair of the Haitian Area Studies program at the State Department’s Foreign Service Institute who once served as an expert witness in a New York civil suit filed by three of Constant’s Haiti torture victims. “It’s very bizarre.”

Gasius, the Gonaives prosecutor, said he wrote to the Haitian supreme court two weeks ago requesting documents and has not heard anything. He also said that Constant’s lawyers have filed a habeas corpus motion before the dean of the court in order to try to secure his release.

Mario Joseph, the Haitian human rights lawyer who got the guilty verdict in the Raboteau Massacre on behalf of the victims, said the government “is playing games,” and he will personally see to it that Gasius receives a copy of the judgment that convicted Constant and 14 others in absentia, and 38 others who were tried in person.

Those convictions were later overturned by a high court in Haiti after Aristide was ousted for a second time in 2005.

“Why is he writing the supreme court?” Joseph, who is with the Bureau des Avocats Internationaux, which also secured a landmark $140 million award to the victims’ families, said. “He knows that they would not have the verdict. People who were judged in absentia cannot appeal to the supreme court so there would not be a file there.”

He said if Gasius really wanted a copy of the judgment, he could ask Jean Robert Gabriel, a former associate who was also convicted in absentia for Raboteau and two years ago was appointed to the high command of the revived Haitian army.

Prior to Constant’s deportation, U.S. Reps. Maxine Waters, D-Calif., and Andy Levin, D-Mich., both urged the Department of Homeland Security and the State Department to postpone Constant’s removal from the U.S. until Haiti could provide a plan on how it will protect his victims, and prosecute him.

Constant’s deportation came not only amid a rapidly spreading COVID-19 in Haiti, but during a work stoppage by judges that forced the closure of the courts.

Gasius said when Constant was eventually transferred from Port-au-Prince, no documents followed him.

“To hold him in jail you need to have a file; you can’t go to court if you don’t have a dossier,” Gasius said. “I cannot invent files.”

Gasius noted that 26 years have passed since Raboteau. Not only has a lot of turmoil taken place in a volatile Haiti but there has been an earthquake, which leveled a government building where files disappeared in the rubble. Haiti, he said, remains a pen and paper society where records are not digitized.

“It’s not easy to find files after 26 years,” he said.

Maguire, the Haiti expert, said if the Haitian government is serious about prosecuting Constant there are various sources it can turn to for documents, from the lawyers who tried the case to the United Nations’ records depot.

“It was fair to ask whether this government wanted to prosecute in the first place,” he said. “It does kind of smell like a rationale for letting Mr. Constant free.

“When Jean-Claude fell, one of the big cries among Haiti’s people was an end to impunity,” said Maguire, recalling the 1986 ouster of dictator Jean-Claude “Baby Doc’ Duvalier from power and the end of his family’s nearly 30-year tyrannical reign.

“And if there has been one huge failure over the past 34 years, it’s that impunity has reigned sovereign in Haiti and this is nothing different.”