Lingering Liberian Constitutional Issues

By Abraham L. James, Ph.D.

The Perspective
Atlanta, Georgia
March 29, 2005


Send Loved Ones Money Fast_2
In October 2005, Liberians will be going to the polls to elect a president and members of the Legislature after the interruption of constitutional government and fourteen years of civil war. The elections are intended to provide the public officials who will govern post-civil conflict Liberia within the framework of a constitutional democracy. As the arrangements for the elections proceed, a major civil discourse seems to be taking place about important constitutional and other issues that could very well determine the prospects for the stable and enduring democratic society for which Liberians everywhere seem to yearn.

I intend to provide some background information about the crafting of the 1984 Constitution and consequences of several developments that occurred during the final phases of the constitution-making process. I was a member of the 25-person National Constitution Commission (NCC) and also had the opportunity of serving on the smaller subcommittee on “drafting.” It is based on my personal participation and notes, as well as available materials on the constitution-writing process.

Democratic constitutional design has evolved, over the years, in a manner not originally envisioned. The French Declaration of the Rights of Man and of the Citizens; the British unwritten constitution, consisting of numerous legislative enactments specifically designated as “basic laws”; and the 1579 Act of Union of the United Provinces of the Netherlands, among others in Europe, were important developments in the process.

Historians generally agree that the first constitution to create a political entity was the Fundamental Orders of Connecticut in 1639. And in September 1787, a one-document constitution became the essential characteristic of nationhood for the United States. These developments have profoundly influenced democratic constitutional design through the years. For example, shortly after the Second World War, most of the emerging countries in Africa and Asia adopted the basic constitutional rules of their former colonial masters. In contrast, after the collapse of the Soviet Union and Yugoslavia the in the 1980s, the new states that emerged from the demise of the two entities adopted constitutions that were fundamentally different from those of their parent states.

Liberia’s first constitution, a single-document constitution that provided evidence of Liberian nationhood, was written by Professor Simeon Greenleaf of Harvard Law School in 1847. It was modeled on the constitution of the United States, in light of Liberia’s early ties to the United Sates. At the time of the Liberian coup d’etat in 1980, the Liberian Constitution was the longest-surviving written constitution in Africa and one of the longest-surviving documents of its kind in the world.

On April 12, 1980, a military coup d’etat tragically ended more than a century and a half of constitutional government in Liberia. Shortly after the coup, the process of writing a new constitution to return the country to constitutional rule began. One woman and twenty-four men, drawn from diverse background, and from across Liberia, were selected by the government of the People’s Redemption Council (PRC) to serve on the NCC. The members came from Liberia’s professional and career groups, as well as other segments of the Liberian society. Most of the administrative subdivisions and ethnic groups were represented. The names of the individuals were read on the state broadcasting station. Most of them were not contacted before their names were heard on the state station. The commissioners were individually appointed by Head of State Samuel K. Doe during an impressive ceremony in the parlors of the Executive Mansion. Dr. Amos Sawyer, a political scientist and dean of the College of Arts and Sciences of the University of Liberia, was appointed chairman of the Commission, and Mr. D. K. Worsehleay, a graduate of Cuttington University College and a popular young leader from Nimba County, was made co-chairman.

The first meeting of the Commission was held in a large conference hall at the Monrovia City Hall. Most of the meetings that followed were held on the campus of the University of Liberia. During the initial meeting, there was an interesting display of patriotic fervor. The Commissioners felt that it was a privilege to serve the nation during a crucial moment in history. It was unanimously agreed that there should be no remuneration for the services to be rendered, regardless of the length of time that would be required for their assignment, which was viewed as a challenge. Initially, there were encouraging signs of the PRC’s commitment to the writing of the constitution. There were indications of their readiness to return to their barracks and to support the restoration of civilian rule in the country. On a few occasions, the head of state warned his fellow military personnel about becoming too comfortable in their respective civilian positions, adding that before long, they would be returning to their posts. Additionally, there was a substantial financial aid package and robust support from the United States government for the restoration of constitutional rule in Liberia. This was in keeping with America’s penchant for constitutional democracy. Although these developments created a positive atmosphere for success, there was also concern about the possibility of the PRC members changing their position and deciding to contest the national election after the adoption of the constitution. Also, the methodology employed in fashioning a new constitution could provide useful guidelines and lessons for future constitution-writing groups elsewhere. The approach was going to be different. For example, there was no single “constitution-writer” as such. Instead, the commissioners were to be the architects of this constitution. Indeed, individual commissioners participated in every aspect of the process.

During the first meeting, the commissioners adopted a set of rules and guidelines that were adhered to for the deliberations and procedures that were to be observed in carrying out the duties of the Commission. The chairman of the Commission established several committees. The “drafting committee” and the “committee on civil discourse,” among others, attracted special attention because of their respective roles and the responsibilities of their members. Every session of the Commission was commenced with a moment of “silent meditation” in which Christians, Moslems, and the adherents of other faiths participated. Despite their individual differences on several important issues, the commissioners demonstrated a great deal of mutual respect for one another.

The principle issues were carefully written in “simple English” and read on state radio to the public on a weekly basis. The Commission also distributed hundreds of cassette tapes of the Liberian Constitution of 1847. The constitution-writing process was explained, and Liberians were encouraged to participate in debates, hearings and discussions across the country. Answers to questions distributed to obtain answers and reactions from the people were meticulously collected and made available to the commissioners for their guidance. The response and input of the Liberian people were lively and significant.

The members of the drafting committee began their assignment of preparing a “working draft” shortly after the first plenary meeting of the Commission.. During their first meeting, the chairman, Commissioner J. Rudolph Grimes, a Harvard Law School graduate and a former public servant with many years experience, presented an eight-page handwritten working paper to the members of the committee for consideration. Drawing on the 1847 Constitution, the document provided the framework for a new constitution. A diligent search is now underway to obtain a copy of the original handwritten document. It dealt with (a) the preamble, (b) the structure of the state, (c) general principles of national policy (not included in the 1847 Constitution), (d) fundamental rights, (e) the three branches of government - legislative, executive, and judicial, (f) emergency powers, and (g) an amendment procedure. The assignment for the members of the drafting committee included writing and discussing essays on the constitutional issues submitted by the chairman. While the members of the drafting committee were preparing a working draft for the plenary body, the other commissioners were actively engaged in conducting “hearings” and civil discourses in various parts of the country. For approximately two months, the drafting committee, with the help of the technical staff, prepared a “working draft” that was submitted to the plenary body of the Commission. The twenty-five person plenary body then proceeded to discuss, elaborate, and amend the document, item by item.

The nature of and rationale for the principles and issues included in the document are set forth below.

Major Constitutional Principles and Issues

The Preamble

The preamble to the Draft Constitution provides the introductory statement that precedes the document’s operational and legally effective provisions. Beginning with the words “we the people” and speaking to the fact of Liberia’s capacity to derive unity from the diversity of its people, the preamble gratefully acknowledges gratitude to God. It recognizes the need to promote national unity and stability, as well as African unity and international peace. The introduction to the constitution also captures some of the ideals that inspired the founding of the Liberian state.

General Principles

The section on the general principles of national policy enumerates the aspirations of the Liberian people and provides guidelines for public policy. Most of the constitutions written in the last two decades have a section on general principles. The principles are essentially suggestive and not necessarily subject to direct enforcement. The provision in the Draft Constitution includes questions of national unity and integration and the promotion of national culture. It also includes suggestions for the eradication of sectionalism, corruption, nepotism, promotion of literacy and the right to work. Additionally, it places a certain responsibility on the State to provide equal access to educational opportunities and facilities for all citizens to the extent of available resources.

Structure of the State

Regarding the structure and authority of the state, the document observes that Liberians had lived within the framework of a democratic republican form of government for more than a century. They were familiar with the dynamics of the system, and there was little or no evidence from the hearings and answers to the questions sent to them that they wanted to change it. A suggestion to experiment with a parliamentary system headed by a prime minister received no support in the drafting committee and therefore never reached the plenary body of the Commission. The overriding issue was the relationships among the legislative, executive and judicial branches of government. There was great concern about safeguarding the principle of separation of powers. The idea was to create an arrangement of three separate institutions that would share power. And because the three branches of government share power, each should be able to check the powers of the others. This is why the old practice of the vice president presiding over the Senate, which is part of the legislative branch of government, was eliminated.

Independence of the Judiciary

The principle of the independence of the judiciary was deemed crucial to the effective functioning of the system. Qualified individuals had to be selected to serve in the judiciary to dispense justice in the courts without fear or favor. In view of the special concern about the independence of the judiciary and the need to strengthen Liberia’s judicial system, Article 97 was included in the Draft Constitution to empower a Judicial Service Commission to recommend to the president candidates for judicial appointment and also to advise him as to the qualification for justices of the Supreme Court, judges of subordinate courts of record, magistrates, and justices of the peace. Additionally, it established guidelines for the selection and removal of judicial officers and other judiciary personnel. And Article 98 provides that all recommendations by the Judicial Service Commission for the impeachment, removal from office, or any other punishment of judicial officials and personnel shall be based on thorough investigations conducted in accordance with “due process of law” and also that the report of the findings and results of all investigations shall be published.

The process by which a judge should be removed from office was also very carefully stipulated so as to avoid an old practice of the arbitrary removal of judges by “joint resolution” of the Legislature, without the benefit of due process. The abovementioned provisions were eliminated from the Approved Revised Draft Constitution by the Constitutional Advisory Assembly (CAA).

Presidential Power

The problem of increased presidential power has been a perennial issue in Liberia for decades. The feeling persisted that excessive powers had been concentrated in the presidency; some were derived from his appointment powers, and others the president had arrogated to himself over the years. In this connection, it was decided to introduce safeguards to limit the appointment power of the president.

Article 92 of the Draft Constitution provides for the establishment of the following: (a) Public Service Commission, (b) Judicial Service Commission; (c) Electoral Commission,. (d) Office of the Auditor General, and (e) Ombudsman Commission. Autonomous public agencies were not to be removed from office before the expiration of the term for which they were appointed except by impeachment for proved misconduct, breach of duty, violation of their oath of office, or conviction in a court of law for treason, bribery, or other infamous crimes. Each autonomous public agency was required to submit an annual report of its activities to the president and submit copies thereof to the Legislature. The contents of this article were not included in the Approved Revised Draft Constitution of the CAA.

On the important issue of the term of office of the president and vice president, which was very carefully thought out by the Commission, questions from the Commission were circulated around the country, requesting a specific time frame. The overwhelming majority of Liberians opted for one four-year term and a possibility for a second and final consecutive four-year term. There was a rejection of the idea of anyone serving as president for more than two consecutive four-year terms. It was in keeping with this reaction of the Liberian people that the commissioners adopted Article 52 in the Draft Constitution. The article provides for a term of four years and the possibility for the incumbent to be a candidate after the lapse of at least one term. And Article 53 provides that the vice president shall be elected on the same political ticket and shall serve for the same term as the president.

The changing of this provision by the CAA to extend the term of office of the president and vice president ignores the expressed views of the overwhelming majority of the Liberian people on the subject. It ignores the expressed views of the Liberian people in nationwide hearings, carefully documented in reports submitted to the NCC, to the effect that no individual should occupy the position of president consecutively for more than two four-year terms. Changing the provisions mentioned above also abetted the efforts of incumbent presidents to extend their tenure of office.

Legislative Authority

For many generations in Liberian history, the Legislature was viewed as an “echo chamber” of the president. Therefore, the idea was to provide the basis for a bicameral legislature of independent men and women of integrity, capable of effectively carrying out their law-making responsibility as one of three equal branches of government and always mindful of their accountability to the people. Also, Article 47 of the Draft Constitution provided that senators should be elected for a term of eight years, and Article 50 provided that members of the House of Representatives should be elected for a term of four years.

The CAA changed the term of office of senators to nine years and that of members of the House of Representatives to six years. The implication of these changes must be abundantly clear and of special concern to Liberians. The prospects of two nine-year terms in the Senate would have the effect of excluding many suitable candidates from one of the most important governmental institutions in the country.

Human Rights

Based on experiences of the past, human rights issues were deemed very important by the commissioners. It was noted that nearly all of the constitutions that were written after the adoption of the United Nations Declaration of Human Rights have emphasized the significance of human rights. The commissioners felt the need to be abundantly clear on the issues of the rights to due process of law and the writ of habeas corpus. The practice of removing elected government officials by a “joint resolution of the Legislature” was eliminated. And the arbitrary arrests and detentions, sometimes for political reasons, were guarded against. Article 15 of the Draft Constitution addresses the question of academic freedom, freedom of information and access to the government-controlled media.

The issue of “treason” was given special attention in Article 21. Care was taken to provide protection for any individual who is charged with the offense. Provision was made to enable individuals to hold the government liable for damages done by the government, and a claims court was provided for.


The issue of citizenship generated a lengthy discussion. There were two distinct schools of thought on the issue. One group held that the argument for restricting citizenship to individuals of the black race is based on the premise that Liberia was founded as a beacon of hope and liberty for men and women of color. This is the mythology for the existence of the Liberian nation, and many nations and ethnic groups around the world have their respective folklore and legends. The other point of view was that the citizenship issue should be viewed as one of status that conferred the right to own property. The right to own property was seen as being germane to citizenship. This group argued that individuals of other racial and ethnic backgrounds would be reluctant to settle and contribute to the growth and advancement of any country that denied them the right of citizenship. They also referred to Liberia’s position as a founding member of the United Nations and a signatory to the Universal Declaration of Human Rights. For them the exclusionary principle base on race was not compatible with the prevailing situation in the world at that time and today. During the mid-1980s, a large majority decided to favor a retention of the provision restricting citizenship to individuals of the black race.

Accountability Regarding Public Monies

In order to provide information and accountability about public monies, the Draft Constitution contained a provision for the establishment of the position of auditor general (Article 101). It provided for an auditor general who would hold office for nine years with eligibility for reappointment and would maintain a budget independent of the executive, provided by the Legislature. He would have power to audit all accounts of all public offices and all public corporations and authorities and all persons and bodies established by law and entrusted with the collection and administration of public monies and assets. In addition to his annual report, he was to submit such special reports as may be required by the president or the Legislature. In order to ensure the independence of the office, it was provided that no impeachment proceedings would be initiated against the official without a prior investigation and report of the Public Service Commission based on due process of law. The sections on accountability were excluded from the Approved Revised Draft Constitution.

Good Governance and Transparency

There is a section dealing with the question of the conduct of public officials in the Draft Constitution. It is intended to address concerns about good governance, transparency, and conflict of interest of public officials. It calls for the promulgation of a code of conduct to address such issues. It also enables the “vetting” of public officials to give citizens an opportunity to determine whether they are serious about the business of government and especially about handling public resources. These are provided for in Article 107 (c) of the Draft Constitution. This section was not included in the Approved Draft Constitution.

Elections and Political Parties

The commissioners were almost unanimous in their view that free and fair elections, expressed through political parties and political groups, are essential ingredients of a democratic state. The idea was that a multi-party arrangement could best provide the right to vote; the right to be elected, and the right of political leaders to compete for support and votes, as well as to be voted from office. Issues concerning political parties and elections are carefully elaborated in Article 80.

Rules and procedures relating to the electoral system and commission were set forth in Article 99. Guidelines are provided to ensure that electoral constituencies would be correctly demarcated and that voting procedures are organized so that the voters understand where and how to cast their votes, which officials seek to represent them, and the commitment of elected officials to voters. The Draft Constitution provides for an electoral commission with appropriate guidelines.

Electoral Districts

The question of the demarcation of electoral constituencies for the House of Representatives received special attention. The issue of special concern was the number of people to constitute a constituency. The enormous political impact of Monrovia was of great concern to most of the commissioners from small counties. There was even an unsuccessful attempt to make Monrovia a “capital district.” The commissioners finally adopted a formula in which twenty thousand people would constitute a constituency for all the counties.

The other issue was the residency requirement for becoming a member of the House of Representatives. What should be the acceptable connection between candidates and their constituencies? Because of the political and economic influence of Monrovia, the capital city, the concept of “domicile,” rather than “residency” was adopted as the criterion for eligibility to run for the position of member of the House of Representatives. The idea was that the concept of domicile would imply a looser connection with a specific area than residency. It was felt that it provided the basis for an appropriate bond between representatives and the individuals of their respective constituencies.

The Election of Superintendents

The issue of electing superintendents of the counties generated a lengthy debate. It was felt that under the existing system, in which the counties are financially dependent on the central government, and most of the senior county officials are responsible to officials in the national administration in Monrovia, the mere election of superintendents, in keeping with a multi-party election, might result in economic and other problems for some of the counties. Instead, the Commission provided a procedure through which a standing committee consisting of representatives selected from each district within a county would serve as a local oversight group. This group would make recommendations to the president and the president in turn would appoint a superintendent from lists of individuals recommended. This provision contained in Article 57 of the Draft Constitution was not included in the Approved Revised Draft Constitution.

The Amendment Procedure

Every written national constitution contains procedures for amending the document — correcting, changing, or revising it for the better. Generally, amendments require several steps and often a super-majority vote to be approved. Historically, it was noted by the Commission that some presidents have succeeded in manipulating the Legislature and the political system to achieve a constitutional amendment and extend their term of office. Drawing from the experience of the Constitution of the United States, an effort was made to introduce requirements and procedures that would make it difficult, but not impossible, to amend the constitution. Thus, the Commission sought to introduce a procedure that would ensure that the amendment process would require a certain length of time that would make easy and politically motivated changes virtually impossible. The idea was also to make it impossible for an incumbent president to benefit from an amendment intended to extend his term of office. This idea, in the form of a safeguard, was “entrenched” in Article 108 of the Draft Constitution.
The Technical Staff

Counselor Winston Tubman, who subsequently left to accept a position with the United Nations, initially headed the technical staff, comprising the legal personnel and the secretarial staff. Counselor Tubman was succeeded by Counselor Phillip Banks, dean of the Louise Arthur Grimes School of Law. The secretarial staff was headed by Mrs. Elaine Dunn. Counselors Tubman and Banks were very qualified and experienced lawyers. Mrs. Dunn had considerable training and experience in office administration. The technical staff played an indispensable role in the constitution-writing process. They were very efficient in researching issues and preparing appropriate documents for the commissioners.

After completing the final daft of the document that was to become the official constitution of Liberia, the commissioners, with the approval of the PRC government, invited Professor Albert P. Blaustine of Rutgers University School of Law to serve as an adviser to the Commission. The professor is the author of a six-volume work on the constitution entitled Constitution of Dependencies and Special Sovereignties. He had worked with several national constitution groups in Africa, Asia, and Latin America. Professor Blaustine made two visits to Liberia, during which he worked with the commissioners and the technical staff and offered very useful advice to the Commission.

The Constitutional Advisory Assembly

Before concluding their drafting assignment, it occurred to the members of the Commission that in the absence of a constituent assembly, it might be a good idea for another larger body, larger, to review the draft document before submitting it to the public for ratification. A constituent assembly would have been appropriate, but the security situation in the country made this impossible. When Dr. Sawyer originally made the request for the establishment of a Constitutional Advisory Assembly (CAA) the leaders of the PRC government appeared to be opposed to the idea. They expressed concern that the members of such a body could be perceived as an elected legislature. Also, many Liberians felt that the establishment of another body would only delay the return to constitutional rule. Nevertheless, after a special intercession of the chairman of the Commission and other members of the body, the proposal was approved. The members of a fifty-nine-person Constitutional Advisory Assembly were selected through a special system designed by the Commission, in keeping with the existing security situation in the country. The original idea was that the CAA would review the Draft Constitution and provide comments before the ratification of the document.

The Troubling Disconnect

However, shortly after their first meeting, the Assembly adopted an adversarial posture toward the Commission. Some of the members took the view that they had been “elected “and that their activities would supersede everything the Commission had done or would do. The commissioners were puzzled and disturbed by this development. It was noted that the selection of the city of Gbarnga, more than 100 miles from Monrovia, as the venue for the CAA’s review assignment was another indication of their intention to distance themselves from the members of the Commission and the technical staff, as well as the valuable materials that were available for the constitution-making process. Also, no effort was made to obtain the carefully documented answers and reactions of the Liberian people to the questions that had been sent to them and the “explanation” and “rationale” for the principles and provisions contained in the Draft Constitution.

The Trappings of Political Office

Almost simultaneously, while the abovementioned developments were taking place, there were indications that the PRC leadership was unhappy about some of the provisions that had been included in the draft. The PRC military officers had now been exposed to the trappings of political office and had obviously set their sights on the presidency and other senior positions in any future civilian government. The inclusion of safeguards against excessive presidential power, together with requirements for accountability and transparency, in the Draft Constitution appear to have been viewed as a hostile act by the military leadership. Their reaction was quick and decisive. The situation resulted in the forging of a special relationship between the head of state and the CAA. Without any warning, the head of state ordered the Commission to end its assignment, sine die, changed the terms of reference of the CAA, and gave it authority to make all necessary changes to the Draft Constitution. The changes wrought by the CAA resulted in the elimination of important guidelines and safeguards for many of the major governmental institutions of the Liberian state.

A peaceful, broad-based, and inclusive Liberian initiative seems to be an appropriate way of handling the lingering constitutional and governance issues that might be unfolding. No attempt should be made to interfere with the national elections scheduled to take place in October 2005. Instead, any attempt to resolve the constitutional issues should work in tandem with the October elections. There have been suggestions for the convening of a sovereign national conference in Liberia. In view of Liberia’s current status, the cooperation of the National Transitional Government of Liberia, the United Nations, ECOWAS, the United States, and the Contact Group will be crucial for any such undertaking and should be sought.

The names of the members of the National Constitution Commission and the drafting committee are listed below:

Members of the National Constitution Commission:

Amos Sawyer, Chairman
Peter A. Johnson, Member
D.K. Wonsehleay, Co-Chairman
David Kpomakpor, Member
Robert G. Azango, Member
Henry G. Kwekwe, Member
J. Gornee N. Barlefay, Member
Albert Porte, Member
George D. Browne, Member
Patrick I. N. Seyon, Member
Augustus F. Caine, Member
J. Teah Tarpeh, member
.Henry G. Kwekwe, Member
S. Byron Tarr, Member
H. Boima Fahnbulleh, Sr., Member
B. Mulbah Togbah, Member
Bangaly Fofana, Member
Wolor Topor, Member
Philip G. Gadegbeku, Member Rebecca Ware Wilson, Member
Alfred V.W. Gayflor, Member
Tuan Wreh, Member
Isaac L. George, Member
J. Rudolph Grimes, Member
Abraham L. James, Member

Members of the Drafting Committee:

J. Rudolph Grimes, Chairman
J. Emmanuel Berry, Member
Augustus F. Caine, Member
Wolor Topor, Member
Abraham L. James, Secretary

About the Author: Dr. Abraham James served in the Department of State (now the Ministry of Foreign Affairs) under Secretaries of State Momolu Dukuly and Rudolph Grimes and subsequently at the Executive Mansion as an aide to President W.V.S. Tubman.