A Review of the 1984 Liberian Elections Law

I. Introduction

Free and fair elections are integral to a functioning democracy; without them, there is no democracy. This conference is very timely (and certainly such a conference ought to have been held even earlier than now). The conference is particularly significant as we contemplate the Liberian general elections scheduled for 2003, considering what the state of things are, and where they have to go to have proper elections. A word of caution: elections, even “good” elections offer no panacea of democracy. Democracy building is an ongoing process requiring the commitment of both the citizens and their government.

My primary focus today is to present a brief insight into the state of affairs of the Liberian electoral circumstances, both legal and political, proffer my analysis, and put forth for your consideration, some conclusions regarding Liberia's scheduled 2003 elections. We should be mindful that the entire spectrum of democratic elections involves both legal and political processes, sometimes intertwined and overlapping, and sometimes separate and distinct. The legal and political processes must work together to create an enabling environment within which “good” elections can be conducted.

Another goal that I have is to offer references and resource materials to people attending the conference to assist in further study and understanding of elections as we go forward in the process. The Internet is a vast source of scholarly and practical material about elections; the World Wide Web is easily accessible. I am contemplating developing a web site that will offer Liberian and international elections material and links to multiple election web sites to assist Liberians in developing knowledge about elections in general, and specifically about the scheduled 2003 Liberian general elections.

Summary of Conclusions

· Liberia has no history of free and fair elections.

· Liberia is not today prepared to hold free and fair elections in 2003 that meet international democratic standards.

· Liberia does not even have valid elections law in force to govern and regulate the 2003 elections because the 1984 Elections Law is defunct and obsolete.

· Liberia is not making any serious preparations in terms of organization and allocation of resources toward holding elections that meet international democratic standards in 2003.

· Unless there is active and sustained international democracy support, beginning now, Liberia will not be prepared and will be unable to hold free and fair elections in 2003.

· The Legislature has failed to enact laws for the governance of the Elections Commission as required by the Constitution.

· Even if it were valid, the 1984 Elections Law may be in conflict with the 1986 Constitution in several material respects

Political Conditions in Liberia

As, we deliberate the legal and political processes of Liberia’s 20003 general elections, we have to consider the political conditions in the country. The developing political circumstances as time goes by will have an effect on the elections. It could range from minor disruptions to potentially determining even whether elections are held at all.

As most of us in this room are aware, the so-called Liberians United for Reconciliation and Democracy is actively engaged in warfare in Liberia. This organization's activities could affect the elections in any number of ways. They could have an impact on the ability of candidates and parties to campaign and canvas in those areas where they are active, in the minimum, all the way to the a situation where a state of emergency is declared, and elections are postponed or not held for an indefinite period.

In respect to conditions in Liberia, the United States Department of State reported the following about the country in 2000:

· The Liberian Government's human rights record remained poor, and there were numerous, serious abuses in many areas.

· Liberian security forces committed man extra judicial killings, and they were accused of killing or causing the disappearance of persons.

· Liberian security forces violated citizens' privacy rights, conducted warrantless searches, harassment, illegal surveillance, and looted homes.

· Liberian security forces tortured, beat up, and otherwise abuse or humiliated citizens.

· Liberian security forces continued to use arbitrary arrest and detention, and lengthy pretrial detention remained common.

· The Liberian judicial system, hampered by political influence, economic pressure, inefficiency, corruption, and a lack of resources; it is unable to ensure citizens' rights to due process and a fair trial.

· The Liberian government restricted freedom of the press; it detained, threatened, and intimidated journalists into self-censorship and shut down radio stations.

· Liberian security forces restricted freedom of movement, and use roadblocks to extort money from citizens and foreigners.

· Liberian security forces frequently harassed human rights monitors.

These conditions do not augur well for conducting legitimate elections.

The Rule of Law

The State Department's report underscores that the "rule of law" is not fully established and operable in Liberia. The rule of law is a fundamental requirement for "good" elections and democracy. What is generally understood by the rule of law constitute certain basic principles, which includes equal treatment of all before the law, fairness, constitutional guarantees of basic human rights, and the recognition, honoring, and actualization by the government of these rights. The presence of the rule of law means a predictable legal system, with fair, transparent, and effective judicial institutions that protect citizens against the arbitrary use of state authority and lawlessness by both organizations and individuals, as well as state actors.

Where there is no rule of law, a state will not have (a) the legal framework necessary for civil society to flourish; (b) adequate checks, particularly, on the executive branch, but also on the legislative branch of government; and (c) the necessary legal processes to protect the rights of people. Where there is no rule of law, free and fair elections cannot be held.

All discussions and considerations of the scheduled 2003 elections, including this conference, must keep in mind the current and developing political circumstances in the country, and the state of the rule of law. Political conditions in the country will affect the elections in many forms. Effects could range from a minimal of minor disruptions of campaigns, to the entire matter of holding constitutional elections as scheduled in 2003, in the first place. The state of the rule of law is essential because it is determinative of how problems involving the elections are resolved, and how the elections are perceived both by citizens and the world at large.

II. Analysis

A. Liberia has no history of holding free and fair elections

Liberia has no history of holding free and fair elections. Between 1847 and 1985, all elections held in Liberia were utter shams. It was not until October 1985, that Liberia had a chance to hold the first free and fair elections in its history. The process was adequate in respect to all aspects of democratic elections, up to the point of tabulating and declaring the winner. At that point, the military ruler, Samuel K. Doe, hijacked the process, and declared himself the winner. Consequently, the elections of 1985 were neither free nor fair. The special elections in 1997 may have come even closer to being free and fair, throughout the entire process. However, when we factor in the threats and intimidation brought to bear on the electorate by supporters of Charles Taylor, that the war would resume if he were not elected president, a gloomy shadow is cast over the 1997 elections.

Today, this conference is examining a country that has never had free and fair elections, from start to finish, at any point in the course of its history. Moreover, and sadly, it is a country that is not adequately preparing to hold general elections that meet its own constitutional requirements, scheduled to take place in less than two years. As a result, Liberia is going into constitutionally required elections in 2003 with a high-risk that it will repeat this historical predilection, and not hold free and fair elections that meet international democratic standards.

B. 2003 Elections will be first constitutional elections held under the 1986 Constitution.

The 2003 elections in Liberia would actually be the first elections held under the 1986 Constitution. The October 1985 elections were special elections designed to bring Liberia back to civilian rule, and to bring into force the newly approved Constitution of Liberia. The 1986 Constitution of Liberia came into effect on January 6, 1986. In 1990, the Constitution of Liberia entered a state of interregnum because of the circumstances of events in the country. The principles and objectives of the Constitution, and the system of governance contemplated by the Constitution could not be maintained because of the pressures of civil war; the Constitution consequently entered a state where it was not in force. The next elections, the 1997 elections, were also special elections. It was only after the 1997 elections and following the inauguration of President Taylor that the 1986 Constitution was re-instituted by resolution of the new National Legislature, also elected in the same special elections. The elections of 2003 would therefore be the first elections that would be held under the authority of the 1986 Constitution.

The elections scheduled for 2003 are the first under the 1986 Constitution; it is morally indefensible and counter-productive for the institution of democracy in Liberia to support or advocate war as a means of bringing about a change of government. One cannot honorably advocate for free and fair election under the current circumstances, of the first constitutional elections, and support war at the same time.

C. The 1984 Elections Law is defunct and obsolete

As it stands today, Liberia does not even have valid Elections Law to govern and regulate the scheduled 2003 elections. It is instructive that neither the Executive, the National Legislature nor the Elections Commission of Liberia has acted to deal with this significant anomaly. It is also significant that political parties and political activists have not brought this very serious deficiency to the attention of the national authorities, and began advocating for regularization of this serious deficiency. It certainly raises questions regarding the state of political awareness of public political actors, official and private, in Liberia. It further calls attention to the point that the country is not prepared and is not seriously preparing for conducting proper elections in 2003.

A careful review of the Elections Law, as published in the Liberian Codes Revised, Volume III, shows that it was enacted only for the purpose of governing the special elections of 1985. There are clear indications within the law that it was not the intent of the legislative authority, the People's Redemption Council, that the 1984 Elections Law would govern future elections. In the very title of the law, it reads, "The title of this law herein cited shall be called the Elections Laws of Liberia to govern the First Election and all provisions therein shall be conformity with this title." Legislative intent is clear from the plain reading of the title of the 1984 Elections Law; it was intended to govern only the first election, which was held in October 1985. Further substantiation of the absence of legislative intent for the 1984 Elections Law to apply to subsequent elections beyond the 1985 special elections can be found in section 3.1, titled, "Who may register." The first subsection of this section reads “Every citizen of Liberia who shall be 18 years of age or older, may register as a voter up to and including August 1, 1985...."

Additional evidence that the 1984 Elections Law was not intended to regulate future elections can be found in PRC Decree No. 75, which authorized the establishment of the “Special Commission on Elections.” Decree No. 75 granted power to the Special Commission on Elections to "propose to the People's Redemption Council a new Elections Law and any other laws, rules and regulations which shall govern the first election of public officials for assumption of public office and the return to constitutional government in accordance with the schedule prescribed by the People's Redemption Council and to administer such laws (my emphasis)." The 1984 Elections Law was drafted directly under this authority of the PRC, and within those limitations.

It is evident from the 1984 Elections Law and Decree No. 75, which authorized the law, that the intent of the People's Redemption Council was that the Elections Law would govern only the first elections, which were those held in 1985. There is simply no evidence that there was any legislative intent that the 1984 Elections Law would extend beyond the first election (1985); the text of the law shows it was intended to apply only to the 1985 special elections. Moreover, even if the 1984 Elections Law were sufficiently adequate to conduct special extra-constitutional elections in 1985 and 1997, it does not follow that it is valid for the purposes of holding constitutional elections in 2003.

In some areas, the 1984 Elections Law may even be in conflict with the Constitution. For example, Article 77 (b) of the Liberian Constitution absolutely grants the right of franchise to every 18 year old or older Liberian citizen, without reference to place of domicile. This would suggest that a Liberian living in another country has the right to vote in Liberia’s elections. Section 3.2.2 of the 1984 Elections Law, however, requires qualified citizens to “register at a registration center or place within the constituency in which he resides.” This statute effectively excludes Liberians who do not reside in the country, contrary to the Constitution.

The 1984 Elections Law were not meant to extend beyond the 1985 elections, and is defunct; it is also obsolete because it conflicts with the 1986 Constitution in some material respects. In the least, elections must be conducted under laws that validly apply to them. As things stand, Liberia does not have valid elections law in place to govern the 2003 elections.

D. The Legislature has failed to enact legislation to enable the Elections Commission to meet many of its constitutional mandates

The Constitution mandates the Elections Commission to carry out certain responsibilities that directly or impliedly require legislation. Article 77 (b) of the Constitution grants franchise to every Liberian citizen “not less than 18 years of age,” who “shall have the right to be registered as a voter and to vote in public elections and referenda.” The Legislature has enacted no legislation governing absentee registration to enable Liberians who live outside of the country, but have the right to vote, to exercise this right.

Chapter VIII of the Constitution covers “Political Parties and Elections.” Article 84 mandates the Legislature to provide for “penalties for any violations of the relevant provisions of this Chapter, and shall enact laws and regulations in furtherance thereof not later than 1986; provided that such penalties, laws or regulations shall not be inconsistent with any provision of this Constitution.” None of these laws have been passed. Article 90 specifically requires the Legislature to enact laws for the governance of the Elections Commission; these laws have not been enacted. Article 91 places the responsibility for conducting referenda on the Elections Commission; there are no laws in Liberia regulating how such referenda should be conducted.

Article 52 provides in part, that one qualification for election to the presidency is that a candidate shall be “resident in the Republic for ten years prior to his election.” The Constitution does not define “resident”; this imperfection ought to be filled by appropriate legislation consistent with this constitutional provision. No such law has been enacted. The same applies to definitions of domicile requirements for candidates for legislative office. It is significant that major Liberian political actors have not advocated for correcting these important legislative deficiencies.

E. Liberia is not prepared to hold elections in 2003.

Liberia is not prepared to hold its 2003 elections, and has not committed the political and material resources necessary to prepare for them. The Elections Commission does not have the legislative guidance it needs to meet its constitutional mandate and authority. The Elections Commission is also under funded, and does not presently have the capacity to conduct “good” elections. The government has not committed the necessary resources do the Commission.

From the perspective of the government of Liberia, as represented by President Taylor, the 2003 elections are a continuation of politics as usual, Liberian-style. President Taylor is already "drawing lines in the sand" with respect to elections, recently declaring that under no circumstances would the 2003 elections be "supervised." This is the pronouncement of a president who is expected to stand as a contender for reelection, in a country that does not even have valid elections law in place. It has also been reported on several occasions that the chairman of President Taylor's National Patriotic Party has all but formally announced that elections will not be held in 2003.

Before elections can be held, Liberia has to put in place, and in a timely fashion, legal and political processes and systems, to prepare for its first constitutional elections under the present Constitution, and potentially the first truly free and fair elections in the history of the country. These systems and processes must meet certain fundamental principles and standards, which the elections and national forces must be prepared to honor and actualize:

1. Freedom is related to the freedom of the voter to make a choice on a ballot without any undue pressure from any source.

2. Fairness is the condition under which candidates, political parties and their supporters are able to compete in an electoral campaign.

3. Universality speaks to who is deemed eligible to cast a ballot and who is not.

4. Transparency relates to the openness of the registration and voting process, gathering and tabulating ballots and reporting results.

5. Ballot secrecy relates to the ability of voters to cast their ballots in complete secrecy.

6. Government’s accountability to the electorate speaks to holding the government accountable to the citizens if it conducts farcical elections.

7. Structures for redress and remedy of claims: elections commission, courts, legislature

F. There has to be intense international democracy support for Liberia if it is to be ready for the 2003 elections.

If Liberia is to put in place a proper election system, in a timely fashion, that meet these fundamental elements, there has to be a significant level of international democracy support that does not begin at the time of balloting, nor at the end of the process, for the purpose of conducting postmortems after the elections. Rather, it is a level of democracy support that begins before the elections, and is intense and continuing up through the tabulation, disposal of claims, and the declaration of winners. It is a level of democracy support that engages the government of Liberia in its interactions with the international community, via bilateral and multilateral interlocutory, with local and domestic nongovernmental organizations, and advocated for by ordinary Liberian (at home and abroad). It is a level of democracy support that claims the attention of the local and international media.

The form of democracy support necessary for free and fair elections to take place in Liberia requires the input of organizational, material and financial resources at a very high-level. This democracy support has to cover the entire election cycle to be effective and of any value. International democracy support must actually initiate the beginning of the election cycle - after all, left to it's own devices, it is safe to conclude that the Liberian government is likely to begin the process very near the actual date of the scheduled elections, October 2003, to the likely advantage of the incumbent administration.

We must consider and advocate for a form of sustained democracy support that begins with the drafting of proper elections law, and the promulgation of appropriate regulations, continues with voter education, and the process of identifying, vetting, and registering voters, candidates, and parties. It would look at the local media and their roles in the process; it would watch and examine the campaign process, the infrastructure set up to handle voting and vote counting, and would watch the voting, and monitor the collection of ballots, observe ballots counting and tabulation, as well as the process for determining and declaring the results, and resolving election disputes. It is only through such democracy support initiatives that the 2003 elections in Liberia have a chance to be conducted in an unrestricted manner, without intimidation, without pressure and without reprisal, and just as importantly, without fear of any of these conditions.

III. Conclusion

As Liberians consider and deliberate about the scheduled 2003 elections, we need to recognize that our country has no history of "good" elections; democratic elections are not a tradition in Liberia. The country is in a situation where it is improbable that the scheduled 2003 elections will be free and fair, unless certain actions are taken shortly. The government of Liberia is not putting in the resources necessary to prepare for the 2003 elections. The country does not even have valid elections law on the books to govern and regulate the 2003 elections. The Legislature has not met its constitutional mandate to enact laws for the governance of the Elections Commission as required by the Constitution. Unless there is international democracy support, which must begin presently, Liberia will not be prepared to hold free and fair elections in 2003. The level of democracy support necessary to place Liberia in a position to have democratic elections in 2003 requires assistance in a form of funding, expertise and professional secondment and technical assistance. This assistance has to be at an unprecedented level. President Taylor has to be convinced of the necessity of outside democracy support.

The form of democracy support that we must work towards includes aiding in the drafting of adequate elections law, and developing appropriate elections regulations, developing civic and voter education techniques, assisting in voter registration and validation, aiding in organizing and conducting the elections. The level of democracy support required also includes pre-election assessments; training the Election Commission and its staff; training poll watchers; providing assistance to polling officials; identifying, developing, and procuring election materials and equipment; training indigenous and international election observers; training election officials, legislators, and government leaders; and developing programs to address gender, and ethnic issues. Only this type of international democracy support will enable the country to conduct elections in 2003 that will meet international democratic standards.

As Liberia moves forward in the political process, we have to be mindful that if "proper" elections are held and President Taylor is reelected, we have to respect the results and live with the consequences. We also have to realize that if Liberia does not conduct "good" elections, and President Taylor unlawfully retains office, Liberians will then have to determine and decide how to meet this situation.

What constitutes free and fair elections? Our Goals for 2003

We are looking for a "free" electoral process where fundamental human rights and freedoms are respected, including:

· freedom of speech and expression by elections, parties, candidates and media;

· freedom of association; that is, freedom to form organizations such as political parties and nongovernmental organizations;

· freedom of assembly, to hold political rallies and to campaign;

· freedom of access to and by electors to transmit and receive political and electoral information messages;

· freedom to register as an elector, a party or a candidate;

· freedom from violence, intimidation or coercion;

· freedom of access to the polls by electors, party agents and accredited observers;

· freedom to exercise the franchise in secret, and

· freedom to question, challenge and register complaints or objections without negative repercussions.

Relatedly, the "fair" electoral process that we would like to see is one where the playing field is reasonably level and accessible to all electoral parties and candidates, and includes:

· An effective independent, nonpartisan electoral organization to administer the process;

· guaranteed rights and protection through the Constitution and electoral legislation and regulations;

· equitable representation on the electoral governing body as provided through legislation;

· clearly defined universal suffrage and secrecy of the vote;

· equitable access to financial and material resources for parties and candidates campaigning;

· equitable opportunities for the electorate to receive political and voters information;

· accessible polling places;

· equitable treatment of electors, candidates and parties by elections officials, the government, the police, the military and the judiciary;

· an open and transparent ballot counting process;

· an election process not disrupted by violence, intimidations or coercion; and

· a process for resolving disputes.

References

1. The Constitution of Liberia (1986).
2. PRC Decree No. 75, “The Elections Law,” Approved: July 21, 1983.
3. Elections Law, Approved: April 19, 1984.
4. Election laws of South Africa, as Amended (1998).
5. "Elections in Latin America," Common Borders, (2000).
6. "What makes free and fair elections?” Asia Times Online, (March 1, 2000).
7. United States Department Of State, "2000 Country Reports on Human Rights Practices," (February 2001).
8. Canada Elections Act, as Amended (2001).
9. The International Institute for Democracy and Electoral Assistance (www.idea.int).
10. The Institute for Democracy in South Africa (www.idasa.org.za).
11. The Zimbabwe Democracy Trust (www.zimbabwedemocracytrust.org).
12. The Center for Democracy (www.centerfordemocracy.org/info.html).
13. Democracy and Governance (www.usaid.gov/democracy).
14. Rule of Law in Sub-Saharan Africa: Trends Analysis and Assessment of USAID Activities (USAID, 1998).
15. Guidance for Promoting Judicial Independence and Impartiality (USAID, November 2001).
16. The USAID on Legislative Strengthening (USAID, February 2000).
17. The Role of Media in Democracy: a Strategic Approach (USAID, June 1999).
18. Political Party Development Assistance (USAID April, 1999).
19. Democracy and Governance: a Conceptual Framework (USAID November 1998).
20. Assisting Legislatures in Developing Countries: a Framework for Program Planning and Implementation (USAID).