The Peace Agreement: an analysis of some provisions

By Cllr. Mohamedu F. Jones

The Perspective
Atlanta, Georgia

August 29, 2003

Cllr. Mohamedu Jones
As of the signing of the Peace Agreement, that document replaced the Constitution as the organic law of Liberia in respect to the structure and authority of the government of Liberia, and in any manner in which the two are inconsistent, the agreement prevails, until January 2006. The Peace Agreement states this with certainty at Article XXXV. It is not a perfect document; there are many provisions that could be different or even better, but this is the only peace agreement Liberia has. This is the agreement we must work with, and hopefully, many of our people would literally live with.

When one analyzes the Liberian peace agreement, it becomes clear that certain provisions of the agreement contain momentous promises for resolving Liberia’s civil war and others carry significant risks that would leave the issues underlying the war unresolved - a war that is one of the longest ongoing civil war in the post World War II era.

The provision that carries the most risks of undermining the objectives of the very agreement in which it is offered is Article XXI (2), which provides that the mandate of the Transitional Government "shall expire on the third Monday of January 2006 when the next elected Government of Liberia shall be inaugurated." The time frame granted the Transitional Government is simply too short to achieve the objectives of the agreement, much more so, to offer sufficient time to institute peace in Liberia. Under the current scenario, the Transitional Government would effectively have no more than 12 -18 months to operate before "politics" resumed if elections are to be held in October 2005. Part of the reasoning that may underlie this short time frame is the continuing false reasoning that elections resolves civil war. What is particularly alarming is that this is the very approach that was taken in 1997. Liberians must never forget that it was through elections, and the circumstances of those elections, that Charles Taylor legitimately assumed the office of the presidency. We are at risk of repeating this grievous error with this two-year period.

It is understood that the international community cannot assume responsibility for Liberia for an extraordinarily long time, but ideally, at least one presidential term of six years would be optimum for transition. In any event, Liberia needs no less that the 4-5 years that the Special Representative has already envisioned. If the Transitional Government is unable to accomplish the substantive provisions of the peace agreement, we run the risk that the civil war will resume. The two-year time frame is unrealistic and presents a recipe for continuing disaster in Liberia. It would be wise for the parties to execute an addendum to the agreement to extend the Transitional Government if the United Nations Special Representative recommends such an extension and the Security Council, ECOWAS and the African Union concur. If there is no opportunity to do such an addendum, at least the United Nations mandate for Liberia should contain an extension of its mission to Liberia even after elections are held and constitutional governance resumed.

One provision of the agreement that offers a momentous promise for good governance in Liberia, and which is extremely significant, is contained in Article XXXV. It states in part that the provisions of the Constitution, the statutes and laws, "which relate to the establishment, composition and powers of the Executive" are herby suspended. The suspension of all "powers" of the Executive branch means that under the agreement, the incoming appointees to the allocated positions have none of the authority that earlier incumbents had under previous constitutional and transitional governments.

This signifies that the incoming LURD appointed Minister of Finance has no authority to spend the government’s money or their appointed Minister of Justice to arrest anyone. The MODEL appointed Minister of Commerce has no commercial regulatory authority or their appointed Minister of Lands, Mines and Energy the power to survey lands. The GOL appointed Minister of Planning and Economic Affairs would have no powers over economic policy or their appointed Minister of National Defense command over the military. Article XXXV is unambiguously beneficial.

The suspension of powers provision is analogous to a school child’s clean slate - it presents a chance to draw new "stick figures" on the slate. Under Article XXXV, executive authority in Liberia will have to be developed anew, and with international assistance, could be done to meet international standards of governance. This will help prevent and minimize executive corruption and abuse of powers that is replete in Liberia’s history. The Transitional Legislature should consider specifically repealing each laws granting the "old powers" as they are replaced in the transitional period, so that here is no dispute or conflict when constitutional governance resumes.

An examination of Article XIIII, setting up the Truth and Reconciliation Commission, reveals that it is very troubling. It is one of the most important provisions of the agreement, and yet one of it weakest. It offers no sanctions against those who would either refuse to participate or act farcically in their appearance before the commission. One grave danger related to this aspect of the agreement, as it is written, is that it has the potential to engender further bitterness because the proposed truth and reconciliation process is not protected against a person who is contemptuous of it.

The final blow to a real truth and reconciliation process in the South African model (which is what comes to mind ordinarily in such a process) is contained in Article XXXIV, which requires the National Transitional Government of Liberia to "give consideration to a recommendation for general amnesty." The in-coming Transitional Chair has already prematurely expressed a position on this proposition, thus further weakening the proposed truth and reconciliation process. In the absence of incentives and fear of punishment, as is the case here, there is not likely to be much truth telling, putting national reconciliation in jeopardy. Liberia must adapt the South African model of "sticks and carrots" if this process is to have any impact and meaning.

The peace agreement calls on the International Stabilization Force (ISF) to remain in place in Liberia until otherwise determined by the Security Council and the elected government of Liberia. The parties have thus committed to ensure that there is no unilateral ending of the ISF in Liberia. It appears that this binds the Security Council (the United Nations is a signatory), as well as the future constitutional government of Liberia. This provision would prevent a repeat of Taylor’s unilateral ending of ECOMOG’s force in Liberia after his 1997 election. It also offers an opportunity for the ISF to continue to meet its responsibilities under the agreement even after an elected government takes office, if necessary, especially if constitutional rule resumes in January 2006 as agreed.

It is very noteworthy that "ethics" does not appear any where in the establishment of the Governance Reform Commission (Article XVI). This oversight is mind-boggling. It is elementary that one of the first duties of this commission ought to be to develop, institute and oversee a code of ethics for government officials in Liberia. The Transitional Government in developing the specific mandate of the commission should instruct it to develop such an ethical code with active international assistance. A code of ethics is particularly important in face of the realization that there is a "division" of government jobs as a "price" for peace. An enforceable code of ethics would prevent the government and its resources from again becoming the "spoils of war" as it was under Taylor.

One of the highlights of the agreement is the obligation of the Transitional Government to request the United Nations, the African Union, ECOWAS and the international community "to jointly conduct, monitor, and supervise the next elections in the country." In short, this means that the United Nations is the next "elections commission" in Liberia. This development stands out as a win-win scenario for the next elections. The international community would conduct proper elections, and Liberians could understudy how to conduct proper elections. This will only be good for the country.

An omission in the agreement, which is arguably purposeful, because it is unimaginable that the United Nations, which was involved in the process, would not be aware of the need, is that there is no provision for national census before elections. A further indication that holding a census was purposefully excluded from the agreement is that Article IX (3) calls for demarcation of constituencies, which indicates that the parties were considering population, but does not provide for a population census. The omission of a census may also be related to the two-year transition time frame, which if this is the case, further underscores why this time frame is unrealistic. In any case, any elections held in Liberia without a census would be a Taylor-like election and illegitimate, irrespective of whom conducts it. This is exactly what the then Liberian president proposed to do. A simple mantra that the Transition Government might consider adapting is that any proposition advocated by Charles Taylor is bad for Liberia and should be avoided. An election without a census is bad for Liberia and should not happen.

The peace agreement offers much promise for Liberia, as well as carry significant risks. There are some provisions such as the two-year period and the weak truth and reconciliation process that must be reconsidered in the Transition period and corrected, provisions such as those that take away the powers of the executive that require new rules, and major issues, such as a government code of ethics, that were omitted, which also need to be remedied. Whatever its shortcomings, the spirit and the letter of the peace agreement offer Liberia a chance to finally end its civil war. It is probably the best agreement that could be reached under the circumstances. Remedial action to redress outstanding issues will solidify it as an instrument of peace for Liberia.