The Validity of Liberian Elections Law
By J. Fonati Koffa, Esq
February 26, 2002
It is not my intent here to judge Counselor Jones right or wrong. A common tenet of our profession is that two lawyers looking at the same set of issues, in this case the Elections law of Liberia, may arrive at two different conclusions. Only the Supreme Court of Liberia can judge Counselor Jones to be right or wrong. The intent here is to establish with the support of settled principles of law that Liberia has an elections law, which is valid.
In his speech to MDCL on January 14, 2002, Counselor Jones stated that Liberia had no elections law, that the existing law was invalid and outdated. Counselor Jones now seems to be talking about inadequacies of the Elections law, which of course presupposes the existence of a valid law. This is a bit confusing.
Validity of the Law’s Existence
In nations that abide by the rule of law, laws are presumed to be valid unless otherwise invalidated by certain legislative or judicial act. The law in question that has governed elections in Liberia in the past does not have a "Sunset" provision, which would require the legislature to take positive steps to allow the law to continue in force after a certain date, after which the law will cease to be effective. The law, therefore, remains valid until repealed, directly or by implication, or nullified by the court. Also, in the construction of a statute that is arguably ambiguous, it is proper to take into consideration the remedy that the statute intended to afford - providing a set of rules by which elections may be conducted in Liberia. Therefore, where possible, the law should be given such a construction as, when practically applied, would not leave the people of Liberia without the remedy initially intended by the law.
The Title and Meaning of the Law
Although Section 1.1. provides that the title of the law shall be called the Elections law of the Liberia to govern the First Election, legislative intent is never determined solely from the title of the legislation, as opposed to the "four corners"-the entirety-of the legislation. Counselor Jones’ argument substitutes legislative intent with the “plain meaning” of the statute and confuses the plain meaning with literalism. However, the literal language of a provision taken out of context cannot provide conclusive proof of legislative intent, any more than a word can have meaning without context to illuminate its use. The 1985 elections were obviously the first set of elections that were to be held under the subject law, hence the references to those elections. But it is clear that the law is of general application for future elections. Let’s examine some provisions.
Counselor Jones points to Section 3.1(a): Every citizen of Liberia who shall be 18 years of age or older, may register as a voter up to and including August 1, 1985. But compare the following other sections of the law:
Section 1.2. Definitions. (c) "'General Elections' means any election for the office of President, Vice President, Senator or Representative caused, except in the case of the first election (emphasis added), by the affluxion of time." "General elections", as used in the law, clearly refers to future elections.
Section 1.2. (d) "'By Election' means any election other than a general election referred to in the Constitution for the purpose of filling a vacancy in the Legislature." Obviously, "by-election" has reference to future elections, as the concept would have been completely irrelevant for the 1985 elections. There was no legislature for which to fill vacancy by "by-election."
Section 3.18. “The County and Territorial Registrars of births, deaths and burials shall send to the appropriate Coordinator in December of each year (emphasis added), a list in the prescribed form containing the name and address and age of every person 18 years of age or over whose death has been registered in the preceding year, together with Electoral Registration Cards of the deceased voter.” “December of each year” refers to future elections.
Section 5.1. "Who may vote. A registered voter may vote at any general election or by-election (emphasis added) in the voting precinct in which he is registered, …" Once again, it is clear that the law, taken in its proper context, applies to all future elections in Liberia.
Section 7.3 (2) "Every political party and independent candidate, shall on September 1, of each year (emphasis added), publish and submit to the Commission detail statements of assets and liabilities." "September 1 of each year" tells me that the law controls even after the "first election."
Section 7.5. "Within 30 days after an election (emphasis added), each candidate shall file or cause to be filed with the Commission an account of expenses incurred by or on behalf of such candidate in connection with such election (emphasis added)." This refers not only to the first election, but any (“an election”) and "such election".
Clearly, the intent of the drafters of Section 3.1 of the Election law was to have it read, "… may register as a voter up to and including August 1 of each year." The "1985" following August 1 is an obvious mistake on the part of the drafter. In statutory construction, such error is rejected as surplusage, and is omitted, eliminated, or disregarded. To construe the provision otherwise would be to make that one provision inconsistent with other provisions of the law, as indicated above. There is a principle of statutory construction, which provides that if a provision of a law or the law is susceptible to two interpretations, and one would destroy the law while the other would uphold it, the latter construction is preferred. Another settled principle of statutory construction is that the various provisions of a single act should be read so that all may, if possible, have effect without repugnancy or inconsistency, so as to render the statute a consistent and harmonious whole.
No provision of the law, other than section 3.1 carries a year. For example, sections 3.18 and 7.3(2) above, speak of December of each year and September 1 of each year, respectively. To argue that the law intended to end voters’ registration by August 1985, and at the same time covered other election activities September and December of every year (by implication, including 2003), I believe would lead to unreasonable and absurd results. Legal experts, scholars and jurists have been clear and consistent on such issue. In this regard, it has been said that a court presumes that the legislature intends sensible results from the statutes it enacts. If possible, doubtful provisions should be given a reasonable, rational, sensible, and intelligent construction. If a statute is capable of being construed in different ways, that construction which works absurd or unreasonable result should be avoided. So, in accordance with these principles of law, Counselor Jones’ reading of the law must give way to the better construction.
The Election Law and the Constitution of 1986
Accepting, for the sake of argument, that Counselor Jones’ contention that the law was intended for only the 1985 election is correct, that argument would be negated and defeated by the “carry over” provisions of the Constitution of Liberia. Article 95 of the Constitution of the Republic of Liberia provides:
“… Notwithstanding this abrogation (of the 1847 Constitution), however, any enactment or rule of law in existence immediately before the coming into force of this Constitution, whether derived from the abrogated Constitution or from any other source shall, (emphasis added) in so far as it is not inconsistent with any provision of this Constitution, continue in force as if enacted, issued or made under the authority of the Constitution...”
This Article of the Constitution tells me that even if the Elections Law was intended for only the 1985 elections, the coming into force of the Liberian Constitution revived it, as there is nothing in the Elections law that is inconsistent with the Constitution. Hence, Liberia has a valid Elections law.
The Contention of “Substantive Inadequacies”
Counselor Jones argues that the law conflicts with Article 77(b), which he believes "absolutely grants the right of franchise to every 18 year old or older Liberian citizen, without reference to place of domicile." Generally, there are two types of constitutional provisions: those that are self-executing and those that require "enabling legislation." Article 77(b) is one of those constitutional provisions that require enabling legislation, which is the Elections law. Although the Constitution grants the right to vote, the legislation would, for example, determine qualifications other than age, such as competence-see section 3.1 of the Election law; who may vote-see section 5.1 of the Election law; leave of absence to vote-section 5.2; and, absentee voting-section 5.4.
Constitutional provisions must generally be construed to imply reasonable time, place and manner restrictions. For example, your right to free speech does not allow you to yell “fire” in a crowded theater or “rebels” in down waterside general market. Therefore, the law may place reasonable time, place, and manner restriction on absentee voting, which it attempts to do in Section 5.4.
He further contends that because the Elections law does not allow absentee registration like South Africa, it violates Article 77(b) of the Constitution. To buttress his argument, he cites Article 80(c) of the Constitution. The constitution clearly distinguishes between registering in a constituency and voting in a constituency. That is why it speaks of “absentee ballot” and not absentee registration. The absence of a voter from Liberia was within the contemplation of the drafters of the Constitution, hence they provided for absentee ballot. If they had wanted “absentee registration”, it would have been provided in the Constitution, as was “absentee ballot.” So, this problem is not a statutory one, which can be fixed by legislation, but a constitutional one that can only be addressed by the people through a constitutional amendment and a referendum. Counselor Jones then turns to the issue of penalties for certain violations. He argues that the failure of the law to provide specific penalties are substantive defects which helps invalidate the law. To maintain this position is to ignore Section 8.18, which states, “A violation of any provision of this title for which no other punishment is provided is punishable by a fine not exceeding one hundred dollars ($100.00).” So, under the Elections Law, which is the enabling election statute of the Constitution, here are the penalties for the violations Counselor Jones cites:
· Violation of secret ballot by elections officials under Article 77 (b) -$100.00
· Violation for unlawful denial of registration by elections officials under Article 77 (b) - $100.00
· Violation of Article 79 regarding functions of political parties - $100.00
· Violations of Article 80 (c) regarding unlawful denial of registration or right to vote -$100.00
· Violations of Article 81 regarding the right to canvass for votes -$100.00
· Violations of Article 82 (a) regarding contributions by corporate and business organizations and labor unions -$100.00
The debate over the elections law of Liberia is an important one. Liberia needs a stable body of laws upon, which its citizens can rely. The current set of elections law has taken us through two elections. I daresay that the problem is not in the law but its implementation. If those who are charged with implementing the law would simply follow it, the will of the people can be truly expressed; for the right to vote is an extension of the right to speak and a creation of a right to be heard.
About the author: J. Fonati Koffa is legal advisor to the Brumskine Presidential Exploratory Committee.