Liberia's 2003 Elections
The following presentation was made By Cllr. Mohamedu F. Jones at a Conference on Liberia sponsored by the Movement for democratic Change in Liberia (MDCL) in collaboration with the Ralph Bunche International Affairs Center at Howard University, and the Association of Liberian Journalists in the Americas (AJLA. It was held on Saturday, March 01, 2003 at the Nyumbra Center of the University of Maryland, College Park, Maryland:
Cllr. Mohamedu F. Jones
After a quarter of a century of continued political violence, we Liberians, even as hard-headed and stubborn as we are, must acknowledge that all this violence has not redressed the injustices, imbalances, and disequilibrium of Liberians political society. It has exacerbated them.
As to President Taylor, I recall his attention to the General Principles of National Policy, contained in Chapter II of the Constitution. Article 4 provides that, "The principles contained in this Chapter shall be fundamental in the governance of the Republic and shall serve as guidelines in the formulation of legislative, executive and administrative directives, policy-making and their execution." Further, the principles contained in Articles 5, 6, 7, 8, 9, and 10, offer clear and concise instructions on good governance in Liberia.
When Liberia returned to civilian democratic rule in 1997, had President Taylor adopted these principles as his instructions for managing the affairs of the country, we would not be where we are today. Indeed, there is sufficient evidence that many of the actions of the President directly countervailed or disregarded these principles. If the President were to model Liberia's executive governance to conform to these principles, we will not remain where we are, the national effect would be palpable, and the country will immediately move far along from where it is today. Indeed, it is likely that continued political violence would end.
As we examine the state of Liberia, we also must recognize that elections in and of themselves are not Liberia's answers nor do they present a panacea for resolving the grave and deep political conflicts that exist in Liberia. As we all know, it was through elections that His Excellency Dr. Dhakpana Charles Ghankay MaCarthur Taylor is President of the Republic of Liberia. Good elections are only the first small steps to instituting democracy in a nation.
There are a large number of issues that confront Liberia's ability to hold "good" elections later this year. As it stands today, considering conditions in Liberia, the current government, the present leadership, and the available resources, we must conclude that Liberia is not ready and will not be ready to hold "good" elections in October 2003. However, "good" elections must be held in October 2003. I will offer some suggestions for in this regard at the end of this presentation.
Selective Enforcement of the Constitution
There are two issues that predominate in the news that illustrate the approach that President Taylor has determined to take as he governs and stands for elections in 2003. It appears that the President will vigorously enforce those provisions of the Constitution that he considers to his advantage and down play, even disregard those provision that he views as not advantageous to him. These two issues revolve around Article 39 - the "Census Clause" and Article 52 - the "Presidential Residency Clause."
Article 39 states: "The Legislature shall cause a census of the Republic to be undertaken every ten years." It is obvious that the population of the country has vital implications for holding elections and democratic governance. The approach that President Taylor has adopted in respect to Article 39 is that Liberia can hold elections in 2003 without a national census, notwithstanding the constitutional implications.
As to Article 52 - the Presidential Residency Clause, the President's approach is that enforcement of this article is vital to the elections, and that as President he is duty bound to enforce it. On this point, he has vowed to stand by his solemn oath to uphold, preserve, and protect the Constitution. Article 52 reads in pertinent part, "No person shall be eligible to hold the office of President or Vice President, unless that person is resident in the Republic ten years prior to his election."
Comparing the President's approach to these two constitutional provisions, he offers selective constitutional enforcement at its best or perhaps its worst.
A major question that arises in respect to a reasoned discussion of Article 52 is what does "resident in the Republic ten years prior to his election" mean? Unfortunately, I have no idea what it means.
In order to guide us in an attempt to understand the meaning of this clause, which is extremely ambiguous, I propose to analyze it under Liberia's construction rules. Liberian case law of the "rules of construction" speaks primarily to statutory construction, but nonetheless they are applicable to constitutional construction under the Supreme Court's jurisprudence. (See Brownell v. Brownell, 5 Liberian Law Reports ("LLR"), 76, 81 (1936). I wish to consider two rules of construction that I believe are applicable to Article 52: (a) The "intent" rule and (b) the "manifest injustice" rule.
The "Intent" Rule
In a 1936 case, (Brownell v. Brownell, 5 LLR, 76, 81 (1936), the Liberian Supreme Court adopted the principle that construction of a constitutional or statutory provision is guided not by the letter of the provision, but according to its meaning and intent. Since the clause is ambiguous and it's meaning is not easily discernible, let us examine it under the intent rule.
One insurmountable difficulty (at least to me) that presents itself when I attempt to apply the "intent of the framers" rule to this Clause of Article 52, is that it is very difficult to determine who the framers are for purposes of analysis. The framers of the 1986 Constitution include "The National Constitutional Commission," chaired by Dr. Amos Sawyer, who drafted a constitution, and the People's Redemption Council to which the Sawyer draft was submitted. What, if any changes, did the Council make or request before publication?
Then we have "The Constitutional Advisory Assembly," chaired by Dr. Edward Binyah Kessely, and who were appointed by the People's Redemption Council, which deliberated in Gbarnga. We must ask again, what, if any changes, did the Council make or request of the Assembly's draft before it was publicly disclosed and presented for referendum? Of course, it is reasonable to assume and even expect that the People's Redemption Council made undisclosed input and had unrevealed influence throughout the process. I have concluded in light of the way the Constitution was framed, the intent of the framers is undiscoverable. We should therefore attempt to apply the "manifest injustice rule"
The "Manifest Injustice" Rule
In a 1977 case, (Dhaliwal International Trading Company (DITCO) v. King, 26 LLR 195, 202-3 (1977), the Liberian Supreme Court, again speaking on construction, held that where the language of a provision is ambiguous and the intent cannot be discovered, the provision must be given a reasonable construction, and the spirit of the law must prevail over its letter, especially so when its literal meaning is absurd or, if given effect, would work injustice. In applying this rule to the Presidential Residency Clause, I have concluded that
a. The language of this clause is ambiguous;
b. The intent of the framers cannot be discovered;
c. A reasonable construction would allow any Liberian citizen who was resident in Liberia in any ten-year period before 2003 to be eligible to stand for the presidency; and
d. The "spirit of the law" of the constitution is to effect democracy and afford the electorate legitimate choice.
For these reasons, under the "manifest injustice" rule of constitutional construction, obvious and manifest unjust consequences would result if Article 52 were interpreted narrowly for the purposes of excluding any citizen of Liberia, who at any point in their lives have resided in the country for a period of ten years before October 2003. It does not serve the purpose of democracy or even of the Constitution to adopt the view that the clause means "resident in the Republic ten years IMMEDIATELY prior to his election."
This insertion of the word "immediately" by interpretation, when the word is not present in the text violates the fundamental principle of reasonable construction and is absurd. Moreover, in respect to Article 52, it inhibits and limits the choice of the people and adversely affects the development of Liberia's democracy.
The Constitution uses the word "immediate" in a number of clauses, thus leading to the conclusion that it uses the word "immediate" in reference to time and chronology where it means to, and does not where it does not mean to.
Examples of clauses where the word "immediate" is used:
Every person suspected or accused of committing a crime shall immediately upon arrest be informed in detail of the charges, of the right to remain silent and of the fact that any statement made could be used against him in a court of law.
Immediately after the Senate shall have assembled following the elections prior to the coming into force of this Constitution, the Senators shall be divided into two categories as a result of the votes cast in each county.
The Executive Power of the Republic shall be vested in the President who shall be Head of State, Head of Government and Commander-in-Chief of the Armed Forces of Liberia. The President shall be elected by universal adult suffrage of registered voters in the Republic and shall hold office for a term of six years commencing at noon on the third working Monday in January of the year immediately following the elections.
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, however, that a constituency must be solely within a county.
Article 87 (a)
Emergency powers do not include the power to suspend or abrogate the Constitution, dissolve the Legislature, or suspend or dismiss the Judiciary; and no constitutional amendment shall be promulgated during a state of emergency. Where the Legislature is not in session, it must be convened immediately in special session and remain in session during the entire period of the state of emergency.
The President shall, immediately upon the declaration of a state of emergency, but not later than seven days thereafter, lay before the Legislature at its regular session or at a specially convened session, the facts and circumstances leading to such declaration. The Legislature shall within seventy-two hours, by joint resolution voted by two-thirds of the membership of each house, decide whether the proclamation of a state of emergency is justified or whether the measures taken thereunder are appropriate. If the two-thirds vote is not obtained, the emergency automatically shall be revoked. Where the Legislature shall deem it necessary to revoke the state of emergency or to modify the measures taken thereunder, the President shall act accordingly and immediately carry out the decisions of the Legislature.
(a) Notwithstanding anything to the contrary in this Constitution, any person duly elected to any office provided for under this Constitution and under the laws in force immediately before the coming into force of this Constitution shall be deemed to have been duly elected for the purpose of this Constitution and to have assumed the position so occupied on the date of coming into existence of this Constitution.
(d) Any person who, under the laws extant immediately before the coming into force of this Constitution, held an appointment or was acting in an office shall be deemed to have been appointed, as far as it is consistent with the provisions of this Constitution, to hold or to act in the equivalent office under this Constitution until appointments otherwise provided for under this Constitution shall have been made.
Article 95 (a)
The Constitution of the Republic of Liberia which came into force on the 26th day of July 1847, and which was suspended on the 12th day of April 1980, is hereby abrogated. Notwithstanding this abrogation, 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, 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 this Constitution.
Finally, I offer the following suggestions.
1. The Government of Liberia should request the appropriate organ of the United Nations to conduct a statistically valid population estimate of the population of Liberia, and the Legislature ought to legislatively adopt the result as the official census of Liberia in fulfillment of its duty under Article 39.
2. Article 52 would properly allow any citizen of Liberia who has resided in the country for any ten-year period to be eligible to stand for the presidency, or manifest injustice would result.
3. President Taylor should immediately appoint a multi-partisan Elections Commission, and introduce appropriate enabling legislation to institute the Elections Commission within the framework of the Constitution. This legislation should include the grant of authority to the Elections Commission to develop and submit its budget to the Legislature outside the Executive budgetary framework.
4. President Taylor and the Government of Liberia should formally request the United Nations to undertake a major electoral mission for Liberia, whereby the United Nations would be mandated to organize and conduct the 2003 elections, assuming the role expected to be filled by the Elections Commission. Such a mission is undertaken by mandate of the Security Counsel or the General Assembly. The mandate requires the establishment of a system of laws, procedures and administrative measures necessary for the holding of free and fair elections, as well as the actual administration of the electoral process, e.g. the establishment of a legal framework, the registration of voters, and the proper conduct of elections in accordance with international democratic norms, and compliant with national constitutions. The process is initiated when the Government sends an official written request for assistance to the United Nations Focal Point for Electoral Assistance Activities (e.g. the Under-Secretary-General for Political Affairs).
5. In the event, upon Liberia's request, that the United Nations determines not to extend a major electoral mission to Liberia, then the President and the Government should then request a standard United Nations electoral mission to Liberia, as an alternative.
6. President Taylor and the Government of Liberia should publicly request international elections assistance, and invite international monitors and observers to participate in the electoral process.