Lingering Liberian
Constitutional Issues
By Abraham L. James, Ph.D.
The Perspective
Atlanta, Georgia
March 29, 2005
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I intend to provide some background information about the crafting of the 1984 Constitution and consequences of several developments that occurred during the final phases of the constitution-making process. I was a member of the 25-person National Constitution Commission (NCC) and also had the opportunity of serving on the smaller subcommittee on “drafting.” It is based on my personal participation and notes, as well as available materials on the constitution-writing process.
Democratic constitutional design has evolved, over the years, in a manner not originally envisioned. The French Declaration of the Rights of Man and of the Citizens; the British unwritten constitution, consisting of numerous legislative enactments specifically designated as “basic laws”; and the 1579 Act of Union of the United Provinces of the Netherlands, among others in Europe, were important developments in the process.
Historians generally agree that the first constitution to create a political entity was the Fundamental Orders of Connecticut in 1639. And in September 1787, a one-document constitution became the essential characteristic of nationhood for the United States. These developments have profoundly influenced democratic constitutional design through the years. For example, shortly after the Second World War, most of the emerging countries in Africa and Asia adopted the basic constitutional rules of their former colonial masters. In contrast, after the collapse of the Soviet Union and Yugoslavia the in the 1980s, the new states that emerged from the demise of the two entities adopted constitutions that were fundamentally different from those of their parent states.
Liberia’s first constitution, a single-document constitution that provided evidence of Liberian nationhood, was written by Professor Simeon Greenleaf of Harvard Law School in 1847. It was modeled on the constitution of the United States, in light of Liberia’s early ties to the United Sates. At the time of the Liberian coup d’etat in 1980, the Liberian Constitution was the longest-surviving written constitution in Africa and one of the longest-surviving documents of its kind in the world.
On April 12, 1980, a military coup d’etat tragically ended more than a century and a half of constitutional government in Liberia. Shortly after the coup, the process of writing a new constitution to return the country to constitutional rule began. One woman and twenty-four men, drawn from diverse background, and from across Liberia, were selected by the government of the People’s Redemption Council (PRC) to serve on the NCC. The members came from Liberia’s professional and career groups, as well as other segments of the Liberian society. Most of the administrative subdivisions and ethnic groups were represented. The names of the individuals were read on the state broadcasting station. Most of them were not contacted before their names were heard on the state station. The commissioners were individually appointed by Head of State Samuel K. Doe during an impressive ceremony in the parlors of the Executive Mansion. Dr. Amos Sawyer, a political scientist and dean of the College of Arts and Sciences of the University of Liberia, was appointed chairman of the Commission, and Mr. D. K. Worsehleay, a graduate of Cuttington University College and a popular young leader from Nimba County, was made co-chairman.
The first meeting of the Commission was held in a
large conference hall at the Monrovia City Hall. Most
of the meetings that followed were held on the campus
of the University of Liberia. During the initial meeting,
there was an interesting display of patriotic fervor.
The Commissioners felt that it was a privilege to
serve the nation during a crucial moment in history.
It was unanimously agreed that there should be no
remuneration for the services to be rendered, regardless
of the length of time that would be required for their
assignment, which was viewed as a challenge. Initially,
there were encouraging signs of the PRC’s commitment
to the writing of the constitution. There were indications
of their readiness to return to their barracks and
to support the restoration of civilian rule in the
country. On a few occasions, the head of state warned
his fellow military personnel about becoming too comfortable
in their respective civilian positions, adding that
before long, they would be returning to their posts.
Additionally, there was a substantial financial aid
package and robust support from the United States
government for the restoration of constitutional rule
in Liberia. This was in keeping with America’s
penchant for constitutional democracy. Although these
developments created a positive atmosphere for success,
there was also concern about the possibility of the
PRC members changing their position and deciding to
contest the national election after the adoption of
the constitution. Also, the methodology employed in
fashioning a new constitution could provide useful
guidelines and lessons for future constitution-writing
groups elsewhere. The approach was going to be different.
For example, there was no single “constitution-writer”
as such. Instead, the commissioners were to be the
architects of this constitution. Indeed, individual
commissioners participated in every aspect of the
process.
During the first meeting, the commissioners adopted
a set of rules and guidelines that were adhered to
for the deliberations and procedures that were to
be observed in carrying out the duties of the Commission.
The chairman of the Commission established several
committees. The “drafting committee” and
the “committee on civil discourse,” among
others, attracted special attention because of their
respective roles and the responsibilities of their
members. Every session of the Commission was commenced
with a moment of “silent meditation” in
which Christians, Moslems, and the adherents of other
faiths participated. Despite their individual differences
on several important issues, the commissioners demonstrated
a great deal of mutual respect for one another.
The principle issues were carefully written in “simple
English” and read on state radio to the public
on a weekly basis. The Commission also distributed
hundreds of cassette tapes of the Liberian Constitution
of 1847. The constitution-writing process was explained,
and Liberians were encouraged to participate in debates,
hearings and discussions across the country. Answers
to questions distributed to obtain answers and reactions
from the people were meticulously collected and made
available to the commissioners for their guidance.
The response and input of the Liberian people were
lively and significant.
The members of the drafting committee began their
assignment of preparing a “working draft”
shortly after the first plenary meeting of the Commission..
During their first meeting, the chairman, Commissioner
J. Rudolph Grimes, a Harvard Law School graduate and
a former public servant with many years experience,
presented an eight-page handwritten working paper
to the members of the committee for consideration.
Drawing on the 1847 Constitution, the document provided
the framework for a new constitution. A diligent search
is now underway to obtain a copy of the original handwritten
document. It dealt with (a) the preamble, (b) the
structure of the state, (c) general principles of
national policy (not included in the 1847 Constitution),
(d) fundamental rights, (e) the three branches of
government - legislative, executive, and judicial,
(f) emergency powers, and (g) an amendment procedure.
The assignment for the members of the drafting committee
included writing and discussing essays on the constitutional
issues submitted by the chairman. While the members
of the drafting committee were preparing a working
draft for the plenary body, the other commissioners
were actively engaged in conducting “hearings”
and civil discourses in various parts of the country.
For approximately two months, the drafting committee,
with the help of the technical staff, prepared a “working
draft” that was submitted to the plenary body
of the Commission. The twenty-five person plenary
body then proceeded to discuss, elaborate, and amend
the document, item by item.
The nature of and rationale for the principles and
issues included in the document are set forth below.
Major Constitutional Principles and Issues
The Preamble
The preamble to the Draft Constitution provides the introductory statement that precedes the document’s operational and legally effective provisions. Beginning with the words “we the people” and speaking to the fact of Liberia’s capacity to derive unity from the diversity of its people, the preamble gratefully acknowledges gratitude to God. It recognizes the need to promote national unity and stability, as well as African unity and international peace. The introduction to the constitution also captures some of the ideals that inspired the founding of the Liberian state.
General Principles
The section on the general principles of national policy enumerates the aspirations of the Liberian people and provides guidelines for public policy. Most of the constitutions written in the last two decades have a section on general principles. The principles are essentially suggestive and not necessarily subject to direct enforcement. The provision in the Draft Constitution includes questions of national unity and integration and the promotion of national culture. It also includes suggestions for the eradication of sectionalism, corruption, nepotism, promotion of literacy and the right to work. Additionally, it places a certain responsibility on the State to provide equal access to educational opportunities and facilities for all citizens to the extent of available resources.
Structure of the State
Regarding the structure and authority of the state,
the document observes that Liberians had lived within
the framework of a democratic republican form of government
for more than a century. They were familiar with the
dynamics of the system, and there was little or no
evidence from the hearings and answers to the questions
sent to them that they wanted to change it. A suggestion
to experiment with a parliamentary system headed by
a prime minister received no support in the drafting
committee and therefore never reached the plenary
body of the Commission. The overriding issue was the
relationships among the legislative, executive and
judicial branches of government. There was great concern
about safeguarding the principle of separation of
powers. The idea was to create an arrangement of three
separate institutions that would share power. And
because the three branches of government share power,
each should be able to check the powers of the others.
This is why the old practice of the vice president
presiding over the Senate, which is part of the legislative
branch of government, was eliminated.
Independence of the Judiciary
The principle of the independence of the judiciary
was deemed crucial to the effective functioning of
the system. Qualified individuals had to be selected
to serve in the judiciary to dispense justice in the
courts without fear or favor. In view of the special
concern about the independence of the judiciary and
the need to strengthen Liberia’s judicial system,
Article 97 was included in the Draft Constitution
to empower a Judicial Service Commission to recommend
to the president candidates for judicial appointment
and also to advise him as to the qualification for
justices of the Supreme Court, judges of subordinate
courts of record, magistrates, and justices of the
peace. Additionally, it established guidelines for
the selection and removal of judicial officers and
other judiciary personnel. And Article 98 provides
that all recommendations by the Judicial Service Commission
for the impeachment, removal from office, or any other
punishment of judicial officials and personnel shall
be based on thorough investigations conducted in accordance
with “due process of law” and also that
the report of the findings and results of all investigations
shall be published.
The process by which a judge should be removed from
office was also very carefully stipulated so as to
avoid an old practice of the arbitrary removal of
judges by “joint resolution” of the Legislature,
without the benefit of due process. The abovementioned
provisions were eliminated from the Approved Revised
Draft Constitution by the Constitutional Advisory
Assembly (CAA).
Presidential Power
The problem of increased presidential power has been
a perennial issue in Liberia for decades. The feeling
persisted that excessive powers had been concentrated
in the presidency; some were derived from his appointment
powers, and others the president had arrogated to
himself over the years. In this connection, it was
decided to introduce safeguards to limit the appointment
power of the president.
Article 92 of the Draft Constitution provides for
the establishment of the following: (a) Public Service
Commission, (b) Judicial Service Commission; (c) Electoral
Commission,. (d) Office of the Auditor General, and
(e) Ombudsman Commission. Autonomous public agencies
were not to be removed from office before the expiration
of the term for which they were appointed except by
impeachment for proved misconduct, breach of duty,
violation of their oath of office, or conviction in
a court of law for treason, bribery, or other infamous
crimes. Each autonomous public agency was required
to submit an annual report of its activities to the
president and submit copies thereof to the Legislature.
The contents of this article were not included in
the Approved Revised Draft Constitution of the CAA.
On the important issue of the term of office of the
president and vice president, which was very carefully
thought out by the Commission, questions from the
Commission were circulated around the country, requesting
a specific time frame. The overwhelming majority of
Liberians opted for one four-year term and a possibility
for a second and final consecutive four-year term.
There was a rejection of the idea of anyone serving
as president for more than two consecutive four-year
terms. It was in keeping with this reaction of the
Liberian people that the commissioners adopted Article
52 in the Draft Constitution. The article provides
for a term of four years and the possibility for the
incumbent to be a candidate after the lapse of at
least one term. And Article 53 provides that the vice
president shall be elected on the same political ticket
and shall serve for the same term as the president.
The changing of this provision by the CAA to extend
the term of office of the president and vice president
ignores the expressed views of the overwhelming majority
of the Liberian people on the subject. It ignores
the expressed views of the Liberian people in nationwide
hearings, carefully documented in reports submitted
to the NCC, to the effect that no individual should
occupy the position of president consecutively for
more than two four-year terms. Changing the provisions
mentioned above also abetted the efforts of incumbent
presidents to extend their tenure of office.
Legislative Authority
For many generations in Liberian history, the Legislature
was viewed as an “echo chamber” of the
president. Therefore, the idea was to provide the
basis for a bicameral legislature of independent men
and women of integrity, capable of effectively carrying
out their law-making responsibility as one of three
equal branches of government and always mindful of
their accountability to the people. Also, Article
47 of the Draft Constitution provided that senators
should be elected for a term of eight years, and Article
50 provided that members of the House of Representatives
should be elected for a term of four years.
The CAA changed the term of office of senators to
nine years and that of members of the House of Representatives
to six years. The implication of these changes must
be abundantly clear and of special concern to Liberians.
The prospects of two nine-year terms in the Senate
would have the effect of excluding many suitable candidates
from one of the most important governmental institutions
in the country.
Human Rights
Based on experiences of the past, human rights issues
were deemed very important by the commissioners. It
was noted that nearly all of the constitutions that
were written after the adoption of the United Nations
Declaration of Human Rights have emphasized the significance
of human rights. The commissioners felt the need to
be abundantly clear on the issues of the rights to
due process of law and the writ of habeas corpus.
The practice of removing elected government officials
by a “joint resolution of the Legislature”
was eliminated. And the arbitrary arrests and detentions,
sometimes for political reasons, were guarded against.
Article 15 of the Draft Constitution addresses the
question of academic freedom, freedom of information
and access to the government-controlled media.
The issue of “treason” was given special
attention in Article 21. Care was taken to provide
protection for any individual who is charged with
the offense. Provision was made to enable individuals
to hold the government liable for damages done by
the government, and a claims court was provided for.
Citizenship
The issue of citizenship generated a lengthy discussion. There were two distinct schools of thought on the issue. One group held that the argument for restricting citizenship to individuals of the black race is based on the premise that Liberia was founded as a beacon of hope and liberty for men and women of color. This is the mythology for the existence of the Liberian nation, and many nations and ethnic groups around the world have their respective folklore and legends. The other point of view was that the citizenship issue should be viewed as one of status that conferred the right to own property. The right to own property was seen as being germane to citizenship. This group argued that individuals of other racial and ethnic backgrounds would be reluctant to settle and contribute to the growth and advancement of any country that denied them the right of citizenship. They also referred to Liberia’s position as a founding member of the United Nations and a signatory to the Universal Declaration of Human Rights. For them the exclusionary principle base on race was not compatible with the prevailing situation in the world at that time and today. During the mid-1980s, a large majority decided to favor a retention of the provision restricting citizenship to individuals of the black race.
Accountability Regarding Public Monies
In order to provide information and accountability about public monies, the Draft Constitution contained a provision for the establishment of the position of auditor general (Article 101). It provided for an auditor general who would hold office for nine years with eligibility for reappointment and would maintain a budget independent of the executive, provided by the Legislature. He would have power to audit all accounts of all public offices and all public corporations and authorities and all persons and bodies established by law and entrusted with the collection and administration of public monies and assets. In addition to his annual report, he was to submit such special reports as may be required by the president or the Legislature. In order to ensure the independence of the office, it was provided that no impeachment proceedings would be initiated against the official without a prior investigation and report of the Public Service Commission based on due process of law. The sections on accountability were excluded from the Approved Revised Draft Constitution.
Good Governance and Transparency
There is a section dealing with the question of the conduct of public officials in the Draft Constitution. It is intended to address concerns about good governance, transparency, and conflict of interest of public officials. It calls for the promulgation of a code of conduct to address such issues. It also enables the “vetting” of public officials to give citizens an opportunity to determine whether they are serious about the business of government and especially about handling public resources. These are provided for in Article 107 (c) of the Draft Constitution. This section was not included in the Approved Draft Constitution.
Elections and Political Parties
The commissioners were almost unanimous in their
view that free and fair elections, expressed through
political parties and political groups, are essential
ingredients of a democratic state. The idea was that
a multi-party arrangement could best provide the right
to vote; the right to be elected, and the right of
political leaders to compete for support and votes,
as well as to be voted from office. Issues concerning
political parties and elections are carefully elaborated
in Article 80.
Rules and procedures relating to the electoral system
and commission were set forth in Article 99. Guidelines
are provided to ensure that electoral constituencies
would be correctly demarcated and that voting procedures
are organized so that the voters understand where
and how to cast their votes, which officials seek
to represent them, and the commitment of elected officials
to voters. The Draft Constitution provides for an
electoral commission with appropriate guidelines.
Electoral Districts
The question of the demarcation of electoral constituencies
for the House of Representatives received special
attention. The issue of special concern was the number
of people to constitute a constituency. The enormous
political impact of Monrovia was of great concern
to most of the commissioners from small counties.
There was even an unsuccessful attempt to make Monrovia
a “capital district.” The commissioners
finally adopted a formula in which twenty thousand
people would constitute a constituency for all the
counties.
The other issue was the residency requirement for
becoming a member of the House of Representatives.
What should be the acceptable connection between candidates
and their constituencies? Because of the political
and economic influence of Monrovia, the capital city,
the concept of “domicile,” rather than
“residency” was adopted as the criterion
for eligibility to run for the position of member
of the House of Representatives. The idea was that
the concept of domicile would imply a looser connection
with a specific area than residency. It was felt that
it provided the basis for an appropriate bond between
representatives and the individuals of their respective
constituencies.
The Election of Superintendents
The issue of electing superintendents of the counties generated a lengthy debate. It was felt that under the existing system, in which the counties are financially dependent on the central government, and most of the senior county officials are responsible to officials in the national administration in Monrovia, the mere election of superintendents, in keeping with a multi-party election, might result in economic and other problems for some of the counties. Instead, the Commission provided a procedure through which a standing committee consisting of representatives selected from each district within a county would serve as a local oversight group. This group would make recommendations to the president and the president in turn would appoint a superintendent from lists of individuals recommended. This provision contained in Article 57 of the Draft Constitution was not included in the Approved Revised Draft Constitution.
The Amendment Procedure
Every written national constitution contains procedures
for amending the document — correcting, changing,
or revising it for the better. Generally, amendments
require several steps and often a super-majority vote
to be approved. Historically, it was noted by the
Commission that some presidents have succeeded in
manipulating the Legislature and the political system
to achieve a constitutional amendment and extend their
term of office. Drawing from the experience of the
Constitution of the United States, an effort was made
to introduce requirements and procedures that would
make it difficult, but not impossible, to amend the
constitution. Thus, the Commission sought to introduce
a procedure that would ensure that the amendment process
would require a certain length of time that would
make easy and politically motivated changes virtually
impossible. The idea was also to make it impossible
for an incumbent president to benefit from an amendment
intended to extend his term of office. This idea,
in the form of a safeguard, was “entrenched”
in Article 108 of the Draft Constitution.
The Technical Staff
Counselor Winston Tubman, who subsequently left to
accept a position with the United Nations, initially
headed the technical staff, comprising the legal personnel
and the secretarial staff. Counselor Tubman was succeeded
by Counselor Phillip Banks, dean of the Louise Arthur
Grimes School of Law. The secretarial staff was headed
by Mrs. Elaine Dunn. Counselors Tubman and Banks were
very qualified and experienced lawyers. Mrs. Dunn
had considerable training and experience in office
administration. The technical staff played an indispensable
role in the constitution-writing process. They were
very efficient in researching issues and preparing
appropriate documents for the commissioners.
After completing the final daft of the document that
was to become the official constitution of Liberia,
the commissioners, with the approval of the PRC government,
invited Professor Albert P. Blaustine of Rutgers University
School of Law to serve as an adviser to the Commission.
The professor is the author of a six-volume work on
the constitution entitled Constitution of Dependencies
and Special Sovereignties. He had worked with several
national constitution groups in Africa, Asia, and
Latin America. Professor Blaustine made two visits
to Liberia, during which he worked with the commissioners
and the technical staff and offered very useful advice
to the Commission.
The Constitutional Advisory Assembly
Before concluding their drafting assignment, it occurred to the members of the Commission that in the absence of a constituent assembly, it might be a good idea for another larger body, larger, to review the draft document before submitting it to the public for ratification. A constituent assembly would have been appropriate, but the security situation in the country made this impossible. When Dr. Sawyer originally made the request for the establishment of a Constitutional Advisory Assembly (CAA) the leaders of the PRC government appeared to be opposed to the idea. They expressed concern that the members of such a body could be perceived as an elected legislature. Also, many Liberians felt that the establishment of another body would only delay the return to constitutional rule. Nevertheless, after a special intercession of the chairman of the Commission and other members of the body, the proposal was approved. The members of a fifty-nine-person Constitutional Advisory Assembly were selected through a special system designed by the Commission, in keeping with the existing security situation in the country. The original idea was that the CAA would review the Draft Constitution and provide comments before the ratification of the document.
The Troubling Disconnect
However, shortly after their first meeting, the Assembly adopted an adversarial posture toward the Commission. Some of the members took the view that they had been “elected “and that their activities would supersede everything the Commission had done or would do. The commissioners were puzzled and disturbed by this development. It was noted that the selection of the city of Gbarnga, more than 100 miles from Monrovia, as the venue for the CAA’s review assignment was another indication of their intention to distance themselves from the members of the Commission and the technical staff, as well as the valuable materials that were available for the constitution-making process. Also, no effort was made to obtain the carefully documented answers and reactions of the Liberian people to the questions that had been sent to them and the “explanation” and “rationale” for the principles and provisions contained in the Draft Constitution.
The Trappings of Political Office
Almost simultaneously, while the abovementioned developments
were taking place, there were indications that the
PRC leadership was unhappy about some of the provisions
that had been included in the draft. The PRC military
officers had now been exposed to the trappings of
political office and had obviously set their sights
on the presidency and other senior positions in any
future civilian government. The inclusion of safeguards
against excessive presidential power, together with
requirements for accountability and transparency,
in the Draft Constitution appear to have been viewed
as a hostile act by the military leadership. Their
reaction was quick and decisive. The situation resulted
in the forging of a special relationship between the
head of state and the CAA. Without any warning, the
head of state ordered the Commission to end its assignment,
sine die, changed the terms of reference of the CAA,
and gave it authority to make all necessary changes
to the Draft Constitution. The changes wrought by
the CAA resulted in the elimination of important guidelines
and safeguards for many of the major governmental
institutions of the Liberian state.
A peaceful, broad-based, and inclusive Liberian initiative
seems to be an appropriate way of handling the lingering
constitutional and governance issues that might be
unfolding. No attempt should be made to interfere
with the national elections scheduled to take place
in October 2005. Instead, any attempt to resolve the
constitutional issues should work in tandem with the
October elections. There have been suggestions for
the convening of a sovereign national conference in
Liberia. In view of Liberia’s current status,
the cooperation of the National Transitional Government
of Liberia, the United Nations, ECOWAS, the United
States, and the Contact Group will be crucial for
any such undertaking and should be sought.
The names of the members of the National Constitution Commission and the drafting committee are listed below:
