Elections in Liberia without Census Would Be Unconstitutional

By Tiawan S. Gongloe

The Perspective
Atlanta, Georgia

May 20, 2004

Recently the National Elections Commission (NEC) announced that the pending Liberian elections would be held without a census. According to an article captioned: "No Census For 2005 Elections....Says Elections Commission, But..." published in The Inquirer newspaper and distributed by The Perspective website on May 7, 2004, "The National Elections Commission (NEC) through its Chairman Cllr. Frances Johnson-Morris, says there will be no census in the country before the conduct of the 2005 General and presidential elections." In providing reason for this decision the paper said, "Commissioner Morris told leaders of the country's 18 registered political parties...that the result of an assessment conducted by the United nations team working in collaboration with the commission and the Ministry of Planning, has concluded that the conduct of a census before the pending elections are not possible." This conclusion was obviously based on the October 2005 schedule provided in the Accra Peace Agreement to end the Liberian civil war, otherwise known as the Comprehensive Peace Agreement (CPA).

In an effort to deal with the conclusion reached by the NEC in consultation with the United Nations and the Ministry of Planning, the NEC has suggested the re-introduction of the national identification card system as a way of determining who would be eligible to vote in the next general and presidential elections. But, can a national identity card alone qualify one under the Liberian constitution to vote? The answer is obviously, No! A national identification card can answer the questions of citizenship and age, which are just partial requirements for qualification to vote under Liberian law. The most important requirement for eligibility to vote in Liberia is to register as a voter. On the question of registration, the most essential issue is not how one is registered but where one is registered. This is where the issue of census requires a careful and critical consideration, if the ensuing electoral process would be in line with the Constitution of Liberia.

Although the constitution of Liberia does not explicitly say that census must be held before elections, it makes it mandatory that a Liberian citizen of voting age registers and casts his ballot in a constituency. At article 82(c) of the Constitution of Liberia provides:

"Every Liberian citizen shall have the right to be registered in a constituency, and to vote in public elections only in the constituency where registered, either in person or by absentee ballot; provided that such a citizen shall have the right to change his constituency as may be prescribed by the Legislature."

Note should be taken that the constitution requires voter registration to take place in a constituency and for voting to be done only (emphasis ours) in the constituency where one registers. Are there known constituencies today in Liberia? First, it is necessary to know what the Constitution of Liberia means when it uses the word constituency. A constituency is defined by the constitution at article 82(d). It provides:

"Each constituency shall have an approximately equal population of 20,000, or such number of citizens as the Legislature shall prescribe in keeping with population growth and movements as revealed by a national census; provided that the total number of constituencies in the Republic shall not exceed one hundred."

Is there any Liberian today, given the massive population movements due to the Liberian civil war, who can identify a constituency anywhere in Liberia?

If not, then, given the definition of constituency enshrined in the Liberian Constitution, can constituencies be demarcated by NEC without the holding of a census? Note that the constitution clearly linked the definition of a constituency to the availability of census data. In other words based on the population size a constituency could be equal to, or more or less than 20,000. Note that the constitution says that a constituency "shall have an approximately equal population of 20,000 or such number as the legislature shall prescribe…provided that the total number of constituency …shall not exceed one hundred."

Who determines the number and location of constituencies in Liberia? According to article 80(e) " Immediately following a national census and before the next elections, the Elections Commission shall reapportion the constituencies in accordance with the new population figures so that every constituency shall have as close to the same population as possible; provided, that a constituency must be solely within a county."

The last population census of Liberia was held in 1984. This was twenty years ago. In accordance with the constitution of Liberia, another census should have been conducted in 1994. The Liberian civil war made it impossible. Since 1994, Liberian population has experienced massive movements. Also since that time new counties have been created. The constituency boundaries within these new counties have to be determined by the NEC using a new census data based on population growth and movements. Further, the creation of new counties might lead to a reduction of the number of constituencies in some counties.

Another important reason why a census is necessary for the holding of the ensuing election is the determination of the number of representatives in the House of Representatives from each county. Unlike the Senate where representation is equally distributed among the counties (two per county), the number of representatives in the House is based on the number of constituencies, with each representative representing a specific constituency. The only way to determine the number of constituencies where representatives are expected to be elected from is to conduct census. If not the problem of under-, or over- representation may arise.

It is important to draw attention to the fact that in the articles of the Liberian Constitution cited above; the constitution used the word "shall" when referring to the issues of registering and voting in a constituency and the undertaking of census. In law the word shall is mandatory and not persuasive. It means must not may.

The Comprehensive Peace Agreement (CPA) requires that besides those constitutional provisions that were explicitly excluded for the interim period, all other provisions of the Constitution of Liberia are observed in the implementation of the agreement.(see article XXXV d.) If the Constitution of Liberia must be observed in the electoral process, then census must be held because the Liberian electoral process is a constituency based process.

Another matter of consideration on the issue of census is that in the case of national identity card, the bearer is required to pay money in order to obtain one, whereas in the case of a census, one is not required to pay money to be counted. Therefore, apart from the legal argument for census, a national identity card system cannot be a substitute for a national census under the, extremely, high level of poverty that prevails in Liberia. If the decision to re-introduce a national identity card system is not reconsidered, it should be expected that the number of potential voters would be certainly, very low. This could lead to questions about the credibility and legitimacy of the elections to be conducted; hence, a likely source of conflict. However, the possibility of conflict can be undermined or prevented this time, at every step of the way to peace in Liberia, if election is not perceived as an objective of the CPA but only as a key element ( just as disarment is) in the attainment of the overriding objective, durable peace in Liberia. With this understanding, the full and proper coverage of each item on the peace agenda, not time, should be given the highest consideration in the implementation of the CPA. In this regard, the same wisdom and consideration that necessitated the reorganization of the disarmament process (the military component) should be used as precedent in the implementation of the other key provisions of the CPA, particularly, those regarding the electoral process (the political component).

No, to Proportional Representation this Time Around.

As a way of going around the issue of constituency demarcation, the National Elections Commission may be advised to use some form of proportional representation as was done in 1997. Such a proposal will, certainly, not contribute to lasting peace in Liberia. First, the outcome of the use of the proportional representation system in Liberia in the 1997 election was not good. The kind of legislators that this system produced greatly undermined the credibility and legitimacy of the legislature, in particular and governance, in general, in Liberia and largely contributed to the breakdown of law and order under President Charles Taylor. The Liberian people were surprised to see themselves represented by many crooks and common criminals in the legislature, following the last election. Second, many Liberians may not care about who becomes president but Liberians in the various communities would be interested in knowing the individuals who would be contesting to represent them in the legislature, not just the contesting parties. Third, it is possible that a voter votes for the presidential candidate of one party and candidates for the Senate and House for different parties.

Proportional representation has worked in many places; therefore, the issue is not whether or not it is a good system. The issue is that its first use in Liberia produced a bad result and many Liberians don't trust it anymore or at least, are suspicious of it. Besides, proportional representation does not depend on constituency demarcation as required by the Liberian Constitution; hence, it is inconsistent with the provisions of the constitution of Liberia governing elections. An unconstitutional process will definitely produce an unconstitutional result- a situation that could form a basis for future political conflict and a breakdown of law and order, again. Therefore, let the current peace process proceed in a manner that would exclude any rational basis of an excuse for another set of criminal gangs to terrorize the Liberian people for political power.

Avoid the temptation for quick fix

Unlike before, there should not be any attempt at getting a quick fix solution to the Liberian conflict. This was what happened in the 1990s, particularly in the implementation of the Cotonou Accord, as clarified in Akomsombo, Ghana and Abuja, Nigeria. The requirement of disarmament before election was not fully complied with and elections were rushed after partial disarmament. This resulted in holding elections under conditions not conducive for the holding of free and fair elections. It is that quick fix process that laid the foundation for the disaster that the international community is helping Liberia to recover from today. Therefore, this time around let the process be more thorough for the purpose of attaining durable peace rather, than meeting deadlines. Liberians have struggled for one hundred and fifty seven years, fifteen of which was marked by slaughter, rape and plunder, for a democratic process characterized by an open, free and transparent, electoral process.

Therefore, everything that needs to be done to ensure the conduct of a credible and legitimate elections should be done without strict adherence to timetable, especially when some other activities under this time table have been delayed by the international community and the armed parties to the CPA. In all fairness, it is in the interest of Liberia and the international community for the peace process to be agenda-driven rather than time-driven. If everything that is required to be done is done properly, it will deny any loser the excuse to undermine peace. In that case Liberia will be peaceful and peacekeepers and humanitarian workers would not be needed in Liberia, again.

It is unfortunate that a decision has been made not to conduct census before the ensuing general and presidential elections in Liberia. First, the enormous support that is being provided by the international community for peace in Liberia offers the best opportunity to do a proper census, not just for the ensuing elections, but also for obtaining essential data for a proper planning of national reconstruction and development. National census following more than a decade of conflict in Liberia is so important that it should not be left to the judgment of a future president who may not consider it a priority. Leaving any important national matter that requires immediate attention to a future president, with the hope that such president will consider same an important matter, is a big risk that must be avoided, this time around. Liberia is where it is today because of this attitude. The fate of Liberia must not solely rest on a good president theory. Such a theory makes any country highly vulnerable.

The second reason why census should be conducted is to provide accurate information on the population of potential voters, as a way of preventing protests by defeated parties or candidates based on questionable population estimates. The third reason and that which forms the basis of this article is that knowledge of population distribution by the elections commission is a cardinal requirement under the Liberian Constitution for a proper planning and conduct of elections. The final reason is that Liberia is blessed this time around to have some of Liberia's trusted men and women with records of commitment to the building of democracy in Liberia as members of the NEC, under what may turn out to be, the most ideal atmosphere, thanks to the strength of the United Nations peace mission in Liberia. Consequently, nothing, such as the failure to conduct census, should be done, to undermine their effort to give Liberia the best electoral process ever recorded in the history of Liberia. The decision not to conduct census should, therefore, be reconsidered. It should be noted that the failure of the ECOWAS Peace Plan for Liberia, following nearly a decade of tremendous human and material sacrifices by ECOWAS, particularly, Nigeria, Ghana, Guinea, Sierra Leone and The Gambia was caused by the rush to hold elections in Liberia in 1997.

If the purpose of the pending elections is the holding of elections as a way of settling the contending claims to political power in Liberia and to bring lasting peace to the ordinary people of Liberia and the West African Sub-region, then no amount of time and effort should be too much to spare on details, without which there could be a reversion to conflict in the future. The way to avoid this scenario is to stick to the provisions of the Constitution of Liberia governing elections.

Elections under the constitution of Liberia are constituency based. Constituencies cannot be demarcated without census. This is what the organic law of Liberia requires for legitimate elections. Therefore, instead of making an adjustment to satisfy a deadline, it is extremely important for all concerned to do everything that should be done to hold census before the next election. This is a humble appeal to all concerned.

About the author: Cllr. Tiawan S. Gongloe is a currently a research fellow at the W. E. B. Institute at Harvard University in Cambridge, MA. He has been a human rights lawyer in Liberia for over a decade and closely followed the ECOWAS Peace Plan in the 1990s as Executive Assistant to Prof. Amos Sawyer, Interim President of Liberia (1990-1994). He was forced into exile after been detained and severely tortured in April 2002 on the orders of President Charles Taylor. He can be reached at gongloe@fas.harvard.edu or tsgon2002@yahoo.com.