By Seward Montgomery Cooper*
The largest number of Liberia’s skilled population resides in the Diaspora. Over the years they have acquired diverse skills and wealth from various countries. How can we affect them so that within their hearts – the place to which they will always want to return or contribute even after being away for extended periods - will be Liberia? How can we tap into this latent pool of direly needed skills, this sleeping source of capital, to help resuscitate our country?
Foreign direct investments have been marginal in most African countries, almost
negligible in Liberia; but remittances from nationals abroad continue to climb. If we can remove the legal bottlenecks and lift the artificial barriers that inhibit full use of all Liberia’s human resources we could jump-start the economy. We
therefore must draw from this human reservoir that lives outside to complement the efforts of those who live within our geographical boundaries.
Part of this can be done speedily and, in the first instance, without the cumbersome entanglements of a Constitutional amendment. It can be done by statutory adjustments that are clearly within the power of the National Legislature. The Legislature may repeal portions of the Aliens and Nationality Act especially portions of section 21, 22, and enact new statutes that permit dual citizenship.
More than twenty-three African countries already permit dual citizenships. Most African countries similarly affected by war permit dual citizenships. These include Angola, Chad, Cote d’Ivoire, Somalia, and Uganda. Rwanda and Sierra Leone are currently examining draft legislation on this issue. Nigeria, Africa’s most populous country, expressly permits it in their Constitution. South Africa, Morocco, Tunisia, Egypt, Ghana and Guinea are among the list of permissive countries. Liberia ought not to be shortchanged. It must examine itself.
Let us review briefly the situation.
Article 27 (a) of the Constitution states:
“All persons who on the coming into force of this Constitution were lawfully citizens of Liberia shall continue to be Liberian citizens.”
Accordingly, if a person did not lose Liberian citizenship under any of the provisions of the Aliens and Nationality Act or for failure to perform an act of renunciation as required under Article 28 of the Constitution, that person continues to be a Liberian citizen.
Article 28 of the Constitution states:
“Any person, at least one of whose parents was a citizen of Liberia at the time of the person’s birth, shall be a citizen of Liberia; provided that any such person shall upon reaching maturity renounce any other citizenship acquired by virtue of one parent being a citizen of another country. No citizen of the Republic shall be deprived of citizenship or nationality except as provided by law; and no person shall be denied the right to change citizenship or nationality.” (Emphasis supplied.)
The primary indication of the intent of the Constitution is its language. It is a general principle that drafters of a law state in the law what they mean and mean in a law what they state therein. The drafters of the Liberian Constitution included some of Liberia’s best legal minds, who stated lucidly and with precision in each article the intent of the framers of the Constitution. Where the words of the Constitution are plain, clear and determinate, as in this situation, no interpretation is required.
But even if one asserts stubbornly that the language of Article 28 requires interpretation, which I contend it does not, one would arrive at the same conclusion using rules of interpretation. The provision states that if you have one parent who is a Liberian citizen at the time of your birth then you also are a Liberian citizen. You are required however at age 21 years to renounce the other citizenship acquired as a result of your other parent’s foreign citizenship, if you are to keep your Liberian citizenship.
No requirement exists for renunciation of Liberian citizenship where both parents at the time of a person’s birth are or were Liberian citizens. This conclusion derives, among other factors, from rules of interpretation and legal maxims such as expressio unius est exclusio alterius , expressio unius personae est exclusio alterius , and permissum videtur in omne quod non prohibitum .
This interpretation also arises from a review of the history of the language in the Constitution. It should be recalled that an earlier draft of a constitution was
submitted in 1983. The 1983 draft had been proposed by a commission chaired by Professor Amos Sawyer. That 1983 draft was not ratified but was submitted to the constitutional advisory assembly chaired by Dr. Edward Kesselley. A revised draft evolved from the work of the constitutional advisory assembly. That revised draft was submitted to the Liberian people in a referendum. The people adopted the revised draft, thereby making what today is the Constitution of the Republic of Liberia.
The 1983 proposed draft was modified in several important respects pertaining to the issue of Liberian citizenship. Below is a comparison of the relevant provisions of the 1983 draft with the Constitution. I have underlined and italicized language in the 1983 draft that was materially revised by deletion. I have placed in bold print language inserted, which is now language of the Constitution.
The 1983 draft provided:
Article 28 Any person, at least one of whose parents was at the time of the person's birth a citizen of Liberia, shall be a citizen of Liberia; provided that where such person shall have acquired the citizenship of another country by virtue of having been born in that country or by virtue of one parent being a citizen of another country, that person must, upon attaining the age of eighteen years, renounce any other citizenship so acquired. Such declaration shall be made before a circuit court in Liberia or before a consular officer of the Republic, if made outside Liberia. A failure to make such renunciation within one year after attaining such age shall result in the forfeiture of Liberian citizenship. […any such person shall upon reaching maturity renounce any other citizenship acquired by virtue of one parent being a citizen of another country. No citizen of the Republic shall be deprived of citizenship or nationality except as provided by law; and no person shall be denied the right to change citizenship or nationality.
(a) No citizen of the Republic shall be deprived of citizenship or nationality of Liberia except as provided herein or by an act of the Legislature consistent with the provisions of this Constitution; and no person shall be denied the right to change citizenship or nationality. (Please observe that some of the language of this section was revised and made into the final sentence of Article 28 above.)
(b) No Liberian female citizen, who by marriage acquires the citizenship of another country, shall lose her Liberian citizenship unless she renounces it.
Article 30 On application made on behalf of the Republic by an authorized official of Government, the circuit court may deprive a citizen of Liberia of his citizenship, whether he be a Liberian by birth or naturalization, on any one or more of the following grounds, and with such exceptions as set forth below;
(a) acquiring the citizenship of another country; or taking an oath or making an affirmative or other formal declaration of allegiance to a foreign state voluntarily;
(b) exercising a free choice to enter or serve in the armed forces of a foreign state, unless prior thereto such entry or service was specifically authorized by the President or the Legislature;
(c) voting in a political election of a foreign country;
(d) acquiring Liberian citizenship by fraud, misrepresentation, concealment of material facts or any other grossly improper or irregular practice; or
(e) making a formal renunciation of his Liberian citizenship before a diplomatic or consular officer of Liberia in a foreign state.
Again, everything underlined and italicized above was deleted and is no part of the Constitution. Significantly, among the deletions is any reference to renunciation of citizenship acquired by virtue of being born in another country. Also significant is the complete deletion of what would have been provisions on citizenship in Articles 29 and 30, except for a few words of the proposed draft Article 29(a) that were accepted and included in the last sentence of Article 28 of the Constitution.
The rejected provisions of the proposed draft Article 30 are similar in many substantive ways to the statutory provisions of the existing Aliens and Nationality Act pertaining to loss of Liberian citizenship. That Act predates the Constitution and may be subject to successful Constitutional challenge. It is not unreasonable to assume that the proposed language submitted in the 1983 draft was deleted because the constitutional advisory assembly did not agree to loss of citizenship on those grounds or, and perhaps most likely, considered those details more within the province of the Legislature and unsuited for inclusion in the Constitution – “the supreme and fundamental law of Liberia” .
In view of the history of the Constitution, and in the absence of any Constitutional or statutory prohibition, it follows therefore that any person both of whose parents were citizens of Liberia at the time of the person’s birth and who has not acquired another citizenship by naturalization or acted in a manner proscribed under the existing Aliens and Nationality Act that would cause an automatic loss of citizenship, is a Liberian citizen. This applies most clearly in circumstances where the other citizenship is acquired by virtue of place of birth (jus soli), such as occurs under the Constitution of the United States of America. In my professional opinion, this category of persons constitutes Liberian citizens with lawful dual citizenships under Liberian law.
How in the national interest could this pool of Liberians with dual citizenship be expanded?
I submit that this could be accomplished easily by an act of the National Legislature. I propose for consideration, therefore, the following draft legislation under the Aliens and Nationality Act:
“Subject to Article 28 of the Constitution, a person shall forfeit forthwith his Liberian citizenship if, not being a citizen of Liberia by birth, he acquires or retains the citizenship or nationality of a country, other than Liberia, of which he is not a citizen by birth. ANY LAW TO THE CONTRARY NOTWITHSTANDING.”
This draft speaks prospectively.
There remains the issue of the restoration of citizenship on persons who acquired Liberian citizenship at birth and subsequently lost Liberian citizenship by naturalization or by action contrary to the Aliens and Nationality Act then in existence. Fortunately, there is precedence for the restoration of Liberian citizenship. The precedent is found in section 21.32 of the Aliens and Nationality Act which declares as a Liberian citizen any woman formerly a citizen of Liberia who under prior law lost her citizenship by marriage to an alien. A similar provision should be enacted by the National Legislature that could state:
“Any person formerly a citizen of Liberia by birth who under prior law lost Liberian citizenship for reasons other than for conviction for treason in waging war against the State for a foreign enemy State is hereby declared a Liberian citizen effective nunc pro tunc as of the date of loss of citizenship except for forfeited property. ANY LAW TO THE CONTRARY NOTWITHSTANDING.”
This draft for the restoration of Liberian citizenship is based on section 21.32 of the existing Aliens and Nationality Act. I have modified it to suit the purpose and have inserted an exception relating to a specific form of treason which goes to the most egregious form of infidelity and disloyalty to one’s country. The suggested provision applicable to forfeited property comes from the existing Act restoring citizenship on Liberian women who had married aliens. The rationale for that exception, I believe, is the onerous burden such disputes would impose on judicial operations and efficiency. Of course as earlier stated a holistic statutory approach would require that certain provisions of the existing Aliens and Nationality Act be repealed to avoid confusion.
The passage of these into statutes would open the door for new long-term
investors. It would expand the country’s human and capital resource base, increase investments by nationals, potentially increase revenue arising from the benefit of taxation treaties, augment the flow of remittances, and redound to Liberia’s benefit in a way that would positively affect Liberia’s reconstruction.
* Counselor-at-Law, Supreme Court of Liberia; Counselor-at-Law, Supreme Court of Wisconsin; Counselor-at-Law, Supreme Court of the United States of America. The views expressed are personal and do not represent the views of any organization or institution.
See Black’s Law Dictionary “A maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another. When certain persons or things are specified in a law, contract, or will, an intention to exclude all others from its operation may be inferred. Under this maxim, if statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded.”