Echoes of the 1983 Draft Constitution: A Reflection
By Dr. Nat Galarea Gbessagee
The Perspective
Atlanta, Georgia
April 2, 2022
Background
In 1983 and 1984 I was a chief reporter with the Liberia News Agency (LINA), and I had the privilege of covering various activities of the constitutional drafting commission and the constitutional advisory assembly, the two national bodies that spearheaded the writing of a new Liberian constitution in the 1980s, as well as activities of the special elections commission (SECOM), the electoral body that conducted the 1984 constitutional referendum and the 1985 general elections. The drafting commission not only solicited the views of people from across Liberia for inclusion in the draft constitution but also organized and conducted elections of delegates to the advisory assembly in each of the existing nine counties and six territories of Liberia at the time. I covered the delegate elections in Bomi, Bong, Nimba, Grand Bassa, Gibi, and my native Rivercess, and the formal opening of the Advisory Assembly in Gbarnga, Bong County in August 1983 and related activities for weeks thereafter. I also covered activities of the advisory assembly after it relocated from Gbarnga to the Unity Conference Center in Virginia, near Monrovia, as well as the 1984 constitutional referendum conducted by SECOM.
Now, after the April 12, 1980 coup in Liberia, the incoming military People’s Redemption Council (PRC) government suspended the then 133-year-old 1847 Liberian constitution and replaced it with military decrees as the new legal instruments of the state. Then in 1981, amid repeated local and international calls for the soldiers to return to barracks and turnover state power to civilian care, the military government promised the Liberian people a swift return to civilian rule by 1985, but not under the 1847 constitution. The 1847 Liberian constitution had itself been kept for so long in the dark, in the vase of libraries, far away from the public sphere, that many Liberians were not familiar with it, so replacing it with a new constitution from scratch rather than amending it did not seem to matter at all. Accordingly, the PRC Chairman and Head of State appointed a 25-member constitutional drafting commission in 1981 to draft a new constitution from scratch, while in 1983 a 59-member constitutional advisory assembly was elected by people in the various Liberian political subdivisions to review the 1983 draft constitution and submit the revised draft to the Liberian people in a national referendum for approval or rejection.
In January 1983 the drafting commission completed the original draft of the new Liberian constitution (i.e., the 1983 draft constitution) and presented it to the PRC government, which later handed the draft constitution to the advisory assembly for review. On July 3, 1984, the Liberian people voted in a constitutional referendum and approved the version of the 1983 draft constitution reviewed by the advisory assembly. The referendum-approved draft constitution became the new and current 1986 Liberian constitution as of January 6, 1986. Unfortunately, prior to the 1984 referendum, rumors began to circulate in Monrovia and other parts of Liberia that the advisory assembly had in connivance with leaders of the PRC butchered the 1983 draft constitution in unsavory ways in attempts to placate the sitting Head of State. The allegations against the advisory assembly not only became an instant mantra of opposition political rallies in the 1980s, but also still dogged a whole generation of Liberians, and it has taken deep roots in Liberian public discourse and political life since 1983.
In a 2010 listserv exchange on the role of the advisory assembly during the writing of the new Liberian constitution in the 1980s, a colleague inferred that the advisory assembly was guilty of “the perception of rubber stamping” the directives of the Head of State (see excerpted passage below). Yet, no one has really bothered over the years since 1983 to examine the roles of the drafting commission and the advisory assembly in the writing of the new Liberian constitution. Hence, in this article, I seek to revisit the controversies surrounding the 1983 draft constitution in order to help put to rest the general misconceptions that the constitutional advisory assembly was less patriotic and less trustworthy than the constitutional drafting commission during the drafting of the new Liberian constitution. I will base my arguments straightly on personal eyewitness accounts as a news reporter and my reading of many of the controversial provisions inserted in the 1983 draft constitution by the drafting commission.
Perception of Rubber Stamping
Perceptions are subjective individual renderings in particular situations, and it could very well be that once perception is formed it is difficult to erase. Yet, in the passage below, the poster amplifies the perception that the advisory assembly was less prudent than the drafting commission in the discharge of its duties during the writing of the new Liberian constitution in the 1980s:
There are those who want us to believe that the Assembly worked diligently without any pressure from Head of State Samuel Doe who was clearly bent on running for President and winning, of course. Twenty-five years later, people remember that there was a travel ban imposed on members of the Commission to go anywhere near Gbarnga. This indicates clearly that there was pressure, in the most militaristic way, as politics was conducted in those days. Of course, whatever the Assembly did, it could hardly remove the perception of rubber stamping, either to enforce Doe's directives or accept at face value what the Commission put in the draft-Constitution. Lots of people still believe that Dr. Kesselly did certain things because he was under pressure - either because of Doe's promise to make him a running-mate or the fear factor. (Dukulé)
The passage text, “There are those who want us to believe that the Assembly worked diligently…” illustrates the degree of individual perception and suspicion that befell the advisory assembly in the 1980s, let alone the inferences about “travel ban,” “pressure” and “running mate.” The issues of whether the PRC imposed a travel ban on members of the drafting commission, or whether the advisory assembly chairman was targeted as a vice running mate are not discussed in this article, since they do not directly relate to the functions of the advisory assembly. But I know for sure that the chairman (Dr. Amos Sawyer) and public affairs officer (Mr. Tom Kamara) of the drafting commission attended the formal opening of the advisory assembly in Gbarnga in August 1983 and that in the 1980s all segments of Liberian society, including the PRC, religious leaders, civil society leaders, student groups, women groups, etc. had vested interests in the final shape of the new constitution and prevailed on the two bodies, especially the advisory assembly, to include certain provisions in the draft constitution that aligned with their respective interests.The PRC demanded and got blanket amnesty from prosecution for the 1980 coup (see immunity clause under Article 114 of 1983 draft constitution and Article 97 of 1984 revised draft constitution), and the right of all Liberians of voting age, including police and military personnel, to join political parties and vote in public elections in Liberia (see Article 80(c) of the revised draft constitution). Civil society advocated for and got enhanced freedom (see Articles 11 to 22 and 77 of the revised draft constitution), while the religious leaders advocated for and got freedom of worship with no imposition of a state religion (see Article 14 of the revised draft constitution). And, acting either under group pressure or group interests, the two bodies also made a number of controversial insertions and deletions to the 1983 draft constitution that remained a bone of contention up to this day. Hence, the two bodies were susceptible to tremendous pressure in the 1980s not just from the PRC government, but also from all other segments of Liberian society.
Interestingly, only the advisory assembly was authorized to make final changes to the 1983 draft constitution prior to the 1984 referendum, so the various segments of Liberian society unceasingly mounted pressure on the assembly to consider their various demands. The drafting commission sought to prevail on the advisory assembly to retain (i.e., keep intact or rubber stamp) all the provisions it had embedded in the original draft constitution, while the PRC sought to prevail on the advisory assembly to retain the immunity clause in the final draft constitution and to reverse the prohibitive clause regarding the voting rights of police and military personnel. The advisory assembly equally sought to serve its self-interest by extending the tenures of the president and legislators, since many assembly members had ambitions to participate in the pending 1985 elections as presidential and legislative candidates. And the chairman of the advisory assembly actually ran as one of four presidential candidates in the 1985 general elections, as did a large number of advisory assembly and drafting commission members as legislative candidates. The chairman of the drafting commission was the presumptive presidential candidate of the Liberian People’s Party (LPP) except that SECOM disqualified LPP.
Amid these waves of competing interests and maneuvers, however, tempers flared up and soon the advisory assembly became the natural target of political scorn and discredited by those who wanted the new constitution to look and feel the way they wanted it, and by those who wanted to render the assembly’s review of the 1983 draft constitution useless in the eyes of the Liberian people. This is why until now no one has been able to explain why and how the appointed commission was perceived to have performed its duties “diligently” and independently under the military government but not also the elected assembly. Yet, like poster Abdoulaye W. Dukulé who believed that the advisory assembly had the responsibility to counterbalance any perceptions that others had formed against it, poster Mohamed Sherif makes several assumptions below about the advisory assembly that are not supported by the historical facts:
Nat, I don't think there was any need for a constitutional advisory assembly other than the military junta's ambition to hang on to power. So, therefore, some of the key provisions were changed to conform to the likings of the Junta. For example, instead of a 4-year presidential term, we have six long years. Why? Do our presidents really need six years to accomplish what they cannot achieve in four? (Sherif)
During my coverage of activities of the drafting commission and the advisory assembly, it never came up one day that the advisory assembly was intended to bolster “the military junta's ambition to hang on to power.” The advisory assembly was one of two independent bodies that spearheaded the drafting of the new Liberian constitution, and it was the only body whose members were elected directly by the people. And this was so because the Liberian government and people wanted an independent body to checkmate the draft constitution produced by the drafting commission. Besides, when Liberians chose in the 1980s not to amend the 1847 Liberian constitution but to write an entirely new constitution from scratch, they never contemplated particular markers like “key provisions” from which to choose. Therefore, any and all provisions inserted in or deleted from the 1983 draft constitution by the two bodies were deemed essential to the successful and timely completion of the final draft constitution. Moreover, the general presumption among Liberians in late 1983 and early 1984 was that the planned return to civilian rule in 1985 would not be possible without timely completion and approval of the new constitution, so the people opted to approve the draft constitution during the 1984 referendum in whatever form it was in, in a sort of a collective will to facilitate the transition to civilian rule. Hence, it did not matter much to the Liberian people back in 1984 if provisions of the 1983 draft constitution were bloated, disjointed, lean, or severely altered.
As to the presidential term of office in Liberia, there was no sentimental or ornamental value attached historically to a four-year presidential term in Liberian electoral politics to render inclusion of a six-year presidential term in the revised 1983 draft constitution an act of naughtiness. The presidential term of office in Liberia changed in 1907 from two to four years, and in 1935 from four to eight years. In 1944 President William V. S. Tubman began his one-time eight years term which ended in 1951, but the president modified the law to allow for his successive four-year reelection bouts in 1951, 1955, 1959, 1963, and 1971. In 1975, President William R. Tolbert, Jr. reinstated the eight-year presidential term, and he was serving his own one-time eight years term when the 1980 coup occurred. The official presidential term of office prior to the 1980 coup was eight years and not four years, so the inclusion of a six-year presidential term in the revised 1983 draft constitution was still shorter than it had been before.
Unconstitutional Overreach
Several controversial provisions inserted in the 1983 draft constitution by the drafting commission can best be described as an unconstitutional overreach. One of those provisions (Article 80) not only barred police and military personnel from joining political parties and voting in public elections in Liberia but also prohibited voters from changing their original constituency of registration except every ten years. A second provision (Articles 92-106) created five new autonomous public agencies within the Liberian governing structure with enormous power. A third provision (Articles 56 and 57) created the Committees of County Leaders as de facto clearinghouse for the appointment of county superintendents, while a fourth provision (Article 29(b)) granted dual citizenship rights to natural born female Liberians who acquired a foreign citizenship through marriage. A fifth provision (Article 30) elevated to constitutional status the controversial 1973 Alien and Naturalization Act relating to natural born Liberians acquiring other citizenships, and also made it easy for a Liberian circuit court judge to revoke the citizenship of a natural born or naturalized Liberian, upon application by a qualified government bureaucrat.
In particular, the power and authority of the Committees of County Leaders and the five autonomous public agencies rivaled the appointment power of the President of Liberia (see Articles Article 56, 58, and 59), and related administrative, executive, legislative, and judicial powers exercised across the three branches of the Liberian government. For example, under Article 97(a) and (b) the drafting commission empowered the Judicial Service Commission (JSC) to recommend candidates for a judicial appointment along with their qualifications to the President of Liberia, inclusive of justices of the Supreme Court, judges, magistrates, and justices of the peace, and to make similar recommendations to the Chief Justice of Liberia regarding appointment to other posts in the judiciary. The JSC was also empowered under Article 97(c) to recommend to the House of Representatives the impeachment of judicial officers appointed by the President and the removal from office by the President of magistrates and justices of the peace, as well as recommend to the Chief Justice the punishment or removal of other judicial personnel.
Likewise, under Article 105 of the 1983 draft constitution, the drafting commission not only empowered the Ombudsman Commission (OC) “to investigate…any alleged misconduct in office by a public official or employee, whether involving action taken or omitted to be taken by any Government agency, public corporation, authority or institution set up or substantially funded by the Government…,” but also elevated the OC to a new legal superstructure in Liberia with authority above the courts and the entire judicial branch of government. Specifically, Article 105(b) empowered the OC “to investigate administrative acts of arbitrariness, unfairness, aggressiveness and inconsistency which have resulted into sufferings and injustices upon a party, and for which there appears to be no reasonably available judicial remedy” (underline by author). Here, it seems strange that an autonomous public agency could be empowered to intercede in a case where “no reasonably available judicial remedy” by even the Supreme Court of Liberia might be possible in Liberia. The drafting commission provided no explanation on how such a superstructure could operate in Liberia under the circumstances. Consequently, these constitutional insertions by the drafting commission amounted to acts of unconstitutional overreach than can be allowed by any misnomer about “constitutional reforms.”
Advisory Assembly DeletionsThe advisory assembly played a pivotal role in the writing of a new Liberian constitution in the 1980s, as sole official reviewers of the 1983 draft constitution. Yet, the idea that the advisory assembly botched its historic responsibility during the review process still stands out as true and real to many intellectuals and politicians in Liberian society today. However, during the review process, the advisory assembly deleted or modified several articles it found to be unfair and objectionable. These included Articles 92 to 106 on the descriptions and functions of five autonomous public agencies; Articles 56 and 57 on the Committees of County Leaders; Article 80 on voting and constituency rights for all Liberians; and Articles 29 and 30 on citizenship rights, and so on.
Specifically, under Articles 92 to 106, the advisory assembly completely deleted or abolished the ombudsman and judicial service commissions and renamed the others (i.e., electoral commission as the elections commission; the auditor general as the national auditing commission; and the public service commission as the civil service commission). But, unlike the drafting commission which embedded the functions of the autonomous agencies in the draft constitution, the advisory assembly instead empowered the National Legislature of Liberia to define the functions of any and all proposed autonomous public agencies in order to prevent a potentially bloated bureaucracy and legal nightmare that might be set in motion in any future attempts to amend the Liberian Constitution to effect changes in the functions of any of the autonomous public agencies. Hence, under Article 89 of the revised draft constitution, the advisory assembly established three autonomous public commissions (i.e., civil service commission, elections commission, and general auditing commission) with the proviso that “The Legislature shall enact laws for the governance of these Commissions and create other agencies as may be necessary for the effective operation of Government.” The assembly also deleted Articles 29, 30, 56, and 57 altogether, with no modified replacement
The advisory assembly, however, modified Article 80 to grant all Liberian citizens 18 years and older, including police and military personnel, the right to join a political party, to register to vote, and to vote in any public elections in Liberia. The assembly also allowed voters to register at any constituency and to vote thereat in person or by absentee ballot, and to change registration as may be prescribed by the National Legislature of Liberia. Moreover, the drafting commission inserted other provisions in the 1983 draft constitution that the advisory assembly removed or modified, including the tenures of the president and legislators. While the public perception has been that the drafting commission favors a four-year presidential and legislative term of office, this has not really been the case.
In the 1983 draft constitution, the drafting commission prescribed a four-year term for president (Article 52) and representative (Article 50), but an eight-year term for senator (Article 47). The drafting commission stated under Article 52 that a president could serve only two consecutive four-year terms but be eligible to run as president anew after the first term of his or her successor in office. Yet, the drafting commission stipulated under Article 110 that “The limitation of the Presidential term of office to two consecutive terms, each of four years duration, is entrenched in this Constitution, and neither that limitation nor this Article is subject to amendment,” as if there was something magical about a four-year term for which a future constitutional amendment was being prohibited. The advisory assembly modified the provision to allow for amendment (Article 93). In addition, the advisory assembly, modified Articles 47, 50, and 52 in the 1983 draft constitution to extend the tenures of president and representative to six years each and a nine-year term for senator (Article 45). Equally, the advisory assembly allowed the president to serve only up to two six-year terms without the possibility of seeking the presidency again for the third time (Article 50).
Finally, the drafting commission was not entirely against the terms of public officials in Liberia extending beyond four years. Under Articles 93, 96, 99, and 104 of the 1983 draft constitution, the drafting commission stipulated a five-year tenure for commissioners on the public service commission, the judicial service commission, the electoral commission, and the ombudsman commission. The term of office for senator was set at eight years (Article 49) and a nine-year term for the auditor general (Article 101), along with related eligibility requirements of up to ten years for service on the autonomous public agencies. But, as mentioned earlier, the terms of office for president and legislators of Liberia have changed so many times since independence in 1847 that a four-year presidential term no longer has any special significance for which it must be kept.
Conclusion
Writing a new Liberian constitution in the 1980s was not an easy task. Not only that Liberia was still emerging from a century-old one-party state, but also that Liberia was still grappling with military rule. And there were still many gory details out there in 1981 about the coup and its impact on the Liberian people, let alone the general distrust that the military would make good on its promise to return to the barracks and turn state power over to a new civilian administration by 1985. The 1847 constitution was also such an obscured public document that many Liberians became nervous and quite doubtful that writing a new Liberian constitution could make any real difference in the political life of the people. Hence, much anxiety surrounded the writing of the new Liberian constitution in the 1980s. However, amid all of these anxieties and uncertainties about the shape of the constitution and the future of Liberia came the controversy about the advisory assembly making unauthorized changes to the 1983 draft constitution to placate the powers-that-be. Interestingly, hidden beneath the theatrics about insertions, deletions, and unauthorized changes to the 1983 draft constitution is the historical fact that both the drafting commission and the advisory assembly agreed on basically every provision of the 1983 draft constitution, except for the few areas on presidential and legislative tenures; the creation of five autonomous public agencies; individual voting and citizenship rights; and constituency registration requirements.
Accordingly, I have come to realize over the years that talks about the advisory assembly butchering the 1983 draft constitution to placate the powers-that-be were merely a political ploy that lacks historical accuracy. The advisory assembly and the drafting commission agreed on the general structure of the state, the general principles of national policy, fundamental rights, including free speech, and citizenship rights, minus Articles 29 and 30. The two bodies even agreed to grant general amnesty to the PRC using identical wordings originally written by the drafting commission and kept verbatim by the advisory assembly. And, in some ways, the two bodies had the same limitations, including the lack of direct representatives of civil society, youth groups, women groups, labor unions, traditionalists or adherents of customary law, the Liberian Council of Churches, and the Liberian Muslim Council. Article 5(b) gives the legislature the prerogative to pass laws to “preserve, protect and promote positive Liberian culture,” insofar as the “traditional values” of the so-called “positive Liberian culture…are compatible with public policy.” The absence of a direct representative of customary law on the NCDC, coupled with the notion of a “positive Liberian culture” in need of preservation and development only pointed to the politics of the 1983 constitution. Notwithstanding, under Article 68 of the draft 1983 constitution, the drafting acknowledged the co-existence of customary law and statutory law in Liberia by the reference that “The judicial power of the Republic shall be vested in a court system which shall apply both statutory and customary laws in accordance with standards enacted by the Legislature.” This provision was excised from the final draft of 1984 revised draft constitution by the assembly without any tangible reasons, however.
In hindsight, the two bodies were given the benefits of doubt by the people, as the general yearnings and public expectations of the Liberian people at the time were that members of the two bodies would leverage their experiences and expertise to craft and deliver a new constitution that was fair and balanced in light of the socio-economic and politico-cultural dynamics of Liberia. And that is exactly what the two bodies did in the 1980s, in spite of any possible disagreement in strategy or content. We now need to review our past in order to adjust our present for the sake of posterity but not to dwell on it.
References
Constitution of the Republic of Liberia [Liberia], 6 January 1986, available at:
http://www.unhcr.org/refworld/docid/3ae6b6030.html [accessed 13 February 2022]Draft Constitution of the Republic of Liberia. 28 January 1983. Constitutional Drafting Commission, Monrovia.
“Category: Constitutional referendums in Liberia.” Wikipedia, Wikimedia Foundation, 17 July 2016.
https://en.wikipedia.org/wiki/Category:Constitutional_referendums_in_Liberia#mw-headDukulé, Abdoulaye W. “Re: Why Should Archie Bernard Write A Book Now?” OnLiberianMedium Forum. 24
June 2010. OnLiberianMedium@ yahoogroups. comSherif, Mohamed. “Re: Why Should Archie Bernard Write A Book Now?” OnLiberianMedium Forum. 26 June
2010. OnLiberianMedium@ yahoogroups. comAbout the Author: Nat Galarea Gbessagee is an educator, technical communicator, social commentator on contemporary Liberian issues, and former director of public affairs in the Liberian Ministry of Information, Cultural Affairs, and Tourism. He can be reached at ngg06@yahoo.com.
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