By: Abraham James, Esq.
The Perspective
Atlanta, Georgia
August 18, 2009
For the first time in our national history, a National Referendum is scheduled to be held not sooner than one year after the adoption of a joint resolution by two thirds of both Houses of the 52nd Liberian Legislature proposing a constitutional referendum to amend the 1986 Constitution. The resolution will contain several propositions that will be submitted to the voters in the general elections to be conducted by the National Elections Commission in 2011.
The result of the Referendum if approved by the voters will then be embodied in our Constitution. The referendum process will afford Liberians at home and abroad, after registration, to participate in a very important event of our constitutional democracy. It is likely that the exercise will greatly impact our system of government for many years to come.
A referendum is the right reserved to the people to approve or reject legislation that has been referred to them by the Legislature. Although it involves voting a referendum process is not an election. The election is an institution of representative government through which voters choose officials to act for them. The referendum by contrast is an institution of direct democracy. It allows registered voters to govern directly without intervention by government officials. Thus, in the forthcoming referendum the amendments that will be approved by the voters will be embodied in our Constitution. The process will afford Liberians an opportunity to participate in an important law-making event in our country.
History and Rationale
Amending the Liberian Constitution involves the means by which an alteration to the document whether a modification, deletion or addition is accomplished. The drafters of the 1986 Constitution decided to entrench a referendum provision in the document before concluding their task. Article 91 of the Constitution establishes the means for amending the document according to a two-step procedure, proposals for amendment: followed by submission to a referendum to be approved or rejected by voters. They were aware that changes would be needed from time to time if the Constitution were to endure and keep pace with the growth and development of the nation. It occurred to them that useful reforms would be necessary. They were also conscious of the fact that the process of change would not be facile, permitting ill-conceived and hastily passed amendments. By the same token they wanted to assure that a minority could not block action desired by most of the people. There was also another important reason for the provision. Historically there had been instances in the country in which some presidents had orchestrated amendments of the Constitution to extend their term of office. The referendum process was also intended to discourage or make it difficult for any incumbent to amend the constitution to extend his /her term of office.
Some of the propositions under consideration that will be subjected to modifications, deletions and additions are highlighted below.
1. There are indications that Article 45 will be amended to reduce the term of office of Senators from nine years to six. This issue has generated many debates across the country and abroad. There seems to be a growing consensus favoring a reduction of the nine-year term, on the ground that it is too long.
No reference seems to be made to the six-year term for the president and the six-year term for the members of the House of Representatives. During the drafting of the 1986 Constitution the overwhelming majority of Liberians favored a one four-year term followed by a possible second and final four-year term for the president. This was based on replies to questions circulated among Liberian voters across the country. The proposed four-year-term was changed to six years by the National Advisory Assembly (NAA) in Gbarnga.
2. Article 46 of the 1986 Constitution could be deleted as proposed, thereby eliminating the present categorization of Senators as senior and junior.
3. If the suggested proposed amendment of Article 50 is adopted it would change the time of inauguration of the president and vice president from the third Working Monday in January to the third Working Monday in March, after elections in the preceding December.
4. A proposed amendment of Article 52(c) would mean a ten-year residency requirement for presidential candidates
5 A proposed amendment of Article 56 would provide for the election of City Mayors and Members of City Councils by registered voters in their respective localities to serve for a term of six (6) years each. City Mayors and Members of City Councils may be re-elected and may be removed from office for cause by a resolution of two-thirds of the majority of the members of their respective Councils in keeping with due process of law.
If this proposition is submitted to the voters and approved by them, the development will represent an interesting feature of our constitutional democracy. It would be one of the special instances in which the voters, representing the people would have prevailed over both the President who appointed a mayor last year and the Supreme Court which subsequently upheld the position of the President in a ruling by the Court.
6. A proposed amendment for Article 78 will increase the membership requirement of political parties from 5 hundred qualified voters in each of at least 5 counties to one thousand qualified voters in each of at least twelve counties. If adopted this proposal might result in the reduction of the number of political parties that might contest the forthcoming elections..
7. A proposal to amend Article 83(b) will provide that for the election of all public officials, except for the president and vice president, a candidate obtaining the highest number of valid votes cast in an election is declared the winner. This will eliminate the requirement for run-off elections for all elective officials other than the president and vice president.
The process has bgun. Although some of the proposals mentioned above might be in their formative stages and are likely to be subjected to special institutional debates between the two Houses of the Legislature, it is interesting to note that the members of our bicameral legislature may be engaged in considering issues that are likely to significantly impact our constitutional democracy, if they succeed in getting the approval of the voters in the forthcoming general elections scheduled for 2011. Differences between members of the two Houses of the Legislature will require a concurrence of the two institutions before their submission to the Liberian voters in the referendum to be conducted by the Elections Commission.
There have been some concerns expressed about the decision to introduce several amendments to our 22-year-old written Constitution. The individuals that have expressed such concerns favor the school of thought that opposes too many amendments to written constitutions. The argument for amending the Liberian Constitution at this point in our national history can be traced to developments leading to the drafting of the document during the early 1980s, following the coup d’état and the suspension of constitutional government in 1980.
Authorization to write the 1986 Constitution was mandated by the military government of the Peoples Redemption Council (PRC) in 1980. After the National Constitutional Commission (NCC) completed its task, there were indications that the leadership of the Military regime was dissatisfied with certain provisions of the draft including the one suggesting that presidential candidates must attained the age of 35. The failure of the members of the NCC to change this and several other provisions in the draft document seemed to set the NCC on a collision course with the Military Government of President Samuel Doe. In fact, the reaction of President was swift and far-reaching. The NCC was unceremoniously dissolved sine die and ordered to turn the draft constitution over to the NAA which had originally been selected on the recommendation of the NCC to review the document and make appropriate recommendations. The NAA was vested with new powers to make any revisions or write a new draft if necessary. Given this serious and radical alternation of the role of the NAA, its members proceeded to carry out their new assignment in Gbarnga, Bong County, away from the seat of the Commission in Monrovia. This development led to the production of a document that was substantially different in many respects, from the NCC’s draft, for example the term of office of the president was increased from four to six years and those for the Senate and House of Representatives were substantially increased. And several other provisions including some limiting the powers of the President were removed.
These developments, coupled with experiences during the destabilizing conflict and civil war years in our country have provided us with ample reasons for some meaningful and well thought out changes in our organic law. In this context it is important to note that internationally 160 national constitutions have been written or revised since 1970. Only 14 predate World War II, and more than half of the independent nations of the world have been under more than one constitution since World War II and the average nation has had two constitutions in that time. The Liberian Constitution came into force in 1986.
A primary objective of constitutional amendments at this point in time should be to help provide the basis for effective institutions, a stable society and the strengthening of our constitutional democracy. We hope the introduction of the referendum process and the forthcoming elections will help fulfill those lofty goals.
Abraham James was a member of the National Constitutional Commission which drafted the 1986 Constitution. He served as Secretary of the six-member sub-committee on drafting and has written several articles on the Liberian Constitution and other related issues.
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