Bai M. Gbala, Sr.

Several political heavyweights, powerful, eminent citizens and other leading members of the Liberian government (Executive and Legislative) demand that the mid-term, October 14, 2014, senatorial elections must be held on schedule, in order to avoid the potential of a “constitutional crisis” in Liberia, although the electoral process (of nationwide travel, political campaigns, rallies at public gatherings and bodily contacts) iskey contributor to the spread of the Ebola virus, according to advice of Ebola experts. Moreover, the spread of the deadly, Ebola disease has imposed serious, multiple, negative impact, not only on the socio-economic and political life of the Liberian People, but also threatens a dramatic, unfamiliar change in or of their traditional, socio-cultural way of life, such that the Ebola Crisis may have provided or is the reasonable, legal and moral grounds for postponement of the scheduled, October 2014, Senatorial Elections, to save the State.

Furthermore, according to prevailing, Liberian press reports, there are countless conflicts, contradictions and confusions regarding public policy approach in dealing with the deadly Ebola menace, particularly, the continuing spread of the virus, aided & abetted by travel, people movement, public gatherings, assemblies, meetings or conferences, and the holding of elections, especially, the October, 2014, Senatorial Elections. This public policy conflict-contradiction-confusion (particularly with respect to the October 2014, Mid-Term Senatorial Elections) afflicts not only the current, ruling, political leadership of the Nation (the Executive & Legislative Branches of Government), but also the so-called “Stakeholders” - political parties & their leaders; watch-dog, civil society groups; “independent” human rights agency; human rights activists, women and youth organizations. This, then, prompts our Response.

The President & Government of Liberia

By letter to National Legislature addressed to the Speaker of the House of Representatives, dated October 1, 2014, the President of the Nation wrote, “This letter constitutes our formal request to the Legislature . . .” for approval of these measures, with detailed, relevant, constitutional citations and support as follows:

On “Alteration of Election Time and Manner, the President may, by proclamation, alter the period and manner provided . . . under the Constitution for elections by which the people cause their public servants to leave office or fill vacancies, provided, however, that no deviation from the constitutionality-prescribed period shall cause the extension or reduction of any terms of office therein prescribed. In March this year, the there was an outbreak of the Ebola virus disease in our sub-region, Guinea, Sierra Leone and Liberia. As a result of the continuous spread of the virus with enormous loss of lives, human tragedies and an impairment of health, safety and security of the citizens of the Republic and grave risks posed to the existent and sovereignty of this nation which presents a clear and present danger, we declared, with your approbation, state rights of freedom of movement, rights of assembly, and large public gatherings, the closure of schools and public entertainment centres.  All of these measures were taken to combat, contain and eradicate the spread of the virus. As a consequence of these measures taken under the State of Emergency to contain the spread and eradicate the virus and self-surviving measures were taken by the people and residents of state of affairs to continue. As a result, the National Elections Commission (NEC) has informed of its inability to undertake (that is, that it is not possible to hold elections without undertaking) several of the processes that are pre-requisites to conducting the October 14, 2014, Senatorial elections”.

However, despite the fact that “several Liberians have warned against holding such elections (in support of the Government’s declaration and request made to the National Legislature) to avoid the spread of the Ebola virus through bodily contacts . . .(and) raised concerns that the virus may rapidly infect lots more people during the elections campaign, a process which is usually characterized by political speeches, dancing, chanting and singing”, the Government spokesperson, Information Minister, the Honorable Lewis Browne “vowed that the elections would go on (or will be held) despite those concerns”; this, indeed, is a wilful and complete contradiction of the government’s position of October 1, 2014 (The New Democrat, November 11, 2014). This public announcement gives rise to the question of the locus of Presidential/National, Public Policy Advisory Service.

Press Reports

 In his “Argument (The Analyst, October 8, 2014) for . . . Postponement of Mid-Term, Senatorial Elections”,Counsellor-at-Law, Tiawon Gongloe, described what he called the two, opposing views regarding the holding of the Mid-Term, Senatorial Elections. “One view”, he said, “is that the election should be held on October 14, 2014 (as planned) and the new senators installed into office on the second Monday in January, 2015, consistent with the Constitution of Liberia. The proponents of this view maintain that if this does not happen, then Liberia will experience a constitutional crisis, as (because) the Liberian Senate will not be fully constituted to carry out its constitutional duties”; that is, that there will not be the constitutionally-required quorum for transaction of Legislative business.

“The other view”, according to the Counsellor-at-Law, “is that the senatorial election should (and must) be postponed indefinitely, until the spread of the Ebola virus is brought under control, or stopped or until the government of Liberia develops the capacity to stop the spread of the virus and Liberia is declared an Ebola-free country . . . Those who hold this view argue that the holding of the elections in Liberia this year is not possible because all of the (electoral) activities (political campaigns nationwide, travel, gatherings, rallies, etc.) associated with the process of holding elections run counter to the advice of the experts, against the spread of the Ebola virus”.

On the critical question of “Does the postponement of the . . . (October, 2014) senatorial elections present a potential for a ‘Constitutional Crisis in Liberia”?, the Counsellor-at-Law & legal scholar’s answer to this question was, and is, “a big NO!”, because, according to the Counsellor, Article 33 of the Liberian Constitution provides that “A simple majority of each House (the Senate and House of Representatives) shall constitute a quorum for the transaction of business . . .”. 

“A simple majority”, according to Black’s Law Dictionary, the Counsellor added, “is the numerical majority of those (senators) actually voting”. Also, according to the Robert’s Rule on Parliamentary Conventions and practice, a simple majority is defined as “half plus one” of those present and voting”. Therefore, the Counsellor concludes that this simple majority could be 30 (the maximum membership of the Liberian Senate) or 15 (the maximum of senate members having unexpired terms of service and presently serving) senators actually present and voting or any number between 30 & 15; and finally, therefore, there is or will be no violation that may induce constitutional crisis.

Also, another prominent, Counsellor-at-Law but Political Leader and Head of the Political Party (Liberty Party and former candidate for President of Liberia), Counsellor Charles Brumskine, charged what he described as “Colossal (political) Leadership Failure, apparently, by the ruling party government, as the root cause of the huge trail of death caused by the Ebola virus Disease in Liberia (The Analyst, November 10, 2014)”. The Liberian Council of Churches (LCC) is scheduled to consult Political Parties on the October, 2014, Mid-Term Elections (The Analyst, November 10, 2014). But, Counsellor Brumskine’s Liberty Party has already given support to the National Legislature’s denial/rejection of the Presidential request regarding postponement of the elections, emergency measures  and presidential, emergency powers (the Analyst, October 20, 2014).

Indeed, it is important that we note the Open Letter (The Analyst, November 10, 2014)addressed to President Ellen Johnson-Sirleaf by a Group of Eminent Citizens, Political Parties & Civil Society Organizations, which suggests/requests the holding of a“Sovereign, National Forum - Decision by the Sovereign People” - to resolve a potential “constitutional crisis” to be occasioned by postponement of the October, 2014, Senatorial Elections.  

In that Letter, the Eminent Citizens and Political Parties admitted and concedes that the “threat posed to general, public health by the Ebola virus Disease is too treacherous and unpredictable to entice public exposure through an election process” (and we add, indeed, the very possible existence or total destruction of the Liberian nation and people) but requests an elaborate, complex/complicated, costly, corruption-pushed, public assembly, an unnecessary approach and another of our continuing traditional “mango-mango, dee-dee-ba”, “Sovereign Decision by The Sovereign People – a National Forum” – to resolve animaginary “constitutional crisis” to be occasioned by postponement of the October, 2014, Senatorial Elections, although the request is consistent with cited, relevant constitutional provisions.

The Eminent, Concerned Citizens Group cited several Articles (of the Liberian Constitution) but irrelevant to the relevant, lawful requirement of a quorum for the transaction of legislative business. For example, the Group ignored, conveniently, Article 33 of the Constitution which is very clear on the issue of quorum for orderly transaction of legislative business.

Moreover, political parties, their leaders and members, including the Liberian Senate with members seeking re-election, do have the condition of “conflict of interest” and, therefore, may not be included in stakeholders-consultations on an election in which they have and declared explicit interests. Therefore, the request/analysis by political parties (within the Eminent Citizen’s Group) is, by definition, questionable and must be rejected.

Most importantly, it is reasonable and compelling to note that there are, in fact, conflicts, contradictions and confusions in the operation of our government, highly-pronounced in the National Legislature, with specific respect to the Law-makers’ Policy-Maker-Role, as opposed to Policy-Implementers. This condition has been and is shown by the National Legislature’s several “mandates” to implementing agencies within the Executive Branch of government, the Branch charged with execution/implementation/enforcement of approved Law and Policy debated, approved and made by the very, same National Legislature.

Case in point was or is the recent, “Legislature . . . mandates the National Elections Commission (NEC)”, an agency within the Executive Branch of government, “to set a date for the conduct of the October, 2014 Senatorial Elections (FrontpageAfricaonline, October 13, 2014)”.Not only that this action is flagrant violation of Article 3 of the Constitution (“Separation of Powers”), but also that it may be argued, and reasonable to conclude, that the National Legislature was or is, in fact, aiding & abetting the spread of the Ebola virus and, therefore, the Ebola Crisis, given the pre-conditions to electoral activities and the prevailing, national conditions.

 Constitutional Crisis

Now, there is talk about the probability of a “constitutional crisis in Liberia”. That argument holds that in the event that the Mid-Term, October 14, 2014, Senatorial Elections are postponed, not held as planned and scheduled then, there will be the potential of a Constitutional Crisis in Liberia. That probability, we argue, is highly unlikely; in that, that this argument is an apparent scare tactic designed, specifically, for the consumption of the uninformed majority of our nation’s body politic; and that the argument is concerned less, indeed not, with constitutional crisis, but concerned with the Senate seeking to secure or demand its self-interests of 15 of its members seeking re-election, including friendly, supporting political parties and members seeking election to the Senate.

A Constitutional Crisis is a situation or condition that a nation’s or an organization’s body of laws or basic principles of operation appear or are unable to resolve. This situation or condition, often, results in or by a breakdown of orderly operation of government or of an organization. This is not the case in Liberia; although, most often and in general, a constitutional crisis results from factional (Legislative, executive and judicial, for example) disagreements and conflicts over and for superior treatment, demand for and protection of special interests, a condition that is clearly prevalent and shown by the Executive and Legislative branches in our case. However, the Liberian Constitution is clear and precise on the issue of a quorum for transaction of legislative business. Whether or not the senatorial elections are held as planned, a constitutional crisis due to legislative quorum is not only unlikely, but none-existent.

Lifting of State of Emergency

Now, the nation’s State of Emergency imposed by the stroke of Presidential Pen has been lifted by the same stroke of the Pen. But that leaves the existing, Deadly State of Emergency imposed by the Ebola Crisis, a natural, national emergency over which we have no control. The National Legislature, in its wisdom of self-innterest and total disregard for the health and other vital interests of the nation and people, denied/rejected the requested, constitutionally-based, constitutionally-consistent “Measures and Emergency, Executive Powers” with which there was or is the possibility to control, reduce and, eventually, eradicate the deadly Ebola Epidemic, perhaps, in consideration of the measures and the presidential powers requested.

However, there is an American saying holds “that there is no free lunch”. To have or eat lunch, one must pay. Similarly, for the Liberian nation to survive the Ebola Crisis, we must pay a price in return – in terms of a temporal curtailment of some of our constitutional rights. The President’s letter of request was and is precise in its description/choice of those constitutional rights that constitutes the “Measures” - to be curtailed during the emergency and the Emergency Powers necessary to implement the Measures, all consistent with the constitution.

Apparently, graft, greed and ignorance prevailed and gave rise to legislative denial/rejection of the President’s request.  Now, we are back to square One – with the Ebola roaring epidemic, over which we have no control.

But, some of the members of the National Legislature careless, because they are citizens of foreign countries who earn fabulous incomes with undefined salary allowances and live here at the taxpayers’ and donors’ expense. The families of some of the present senatorial and former presidential candidates live permanently in foreign countries, because the heads of the families are citizens of those countries. In fact, some of the 139 candidates approved by the National Elections Commission for 15 seats are under charges of being citizens, while others have admitted citizenship of foreign countries in violation of Article 30 of the Liberian Constitution. Mathematically, 139 candidates for 15 seats translate to 9.2 candidates competing per seat.  

With all of these critical, numerous problems, including this deadly Ebola Crisis, where, indeed, do we go from here?