WAS ARTICLE 52(c) OF THE 1986 CONSTITUTION INTENDED TO DISQUALIFY OTHERWISE QUALIFIED LIBERIAN CITIZENS WHO FLED LIBERIA
By Johannes Zogbay Zlahn
Since Article 52(c) clearly disqualifies some of the declared and putative presidential aspirants from competing for the Presidency in the 2011 elections, can the NEC, consistent with the Constitution, conduct a referendum aimed at amending the Constitution in order to permit those who are disqualified by Article 52(c) from seeking the Presidency to compete for the Presidency in the 2011 elections? Have the constitutional prerequisites to conducting a referendum on the amendment of the Constitution been met? Assuming that the perquisites to conducting a constitutionally mandated referendum have been met is there sufficient time to conduct a referendum which complies with the Constitution? The answers to these questions lie in Article 91 of the Constitution. That Article of the Constitutes states: “The Constitution may be amended whenever proposal by either: “(1) Two-thirds of the membership of both Houses of the Legislature, or (2) [a] petition submitted to the Legislature, by not fewer than 10,000 citizens which receives the concurrence of two-thirds of the membership of both Houses of the Legislature, is ratified by two-thirds of the registered voters, voting in a referendum conducted by the Elections Commission not sooner than one year after the action of the Legislature.”
According to Article 91 of the Constitution, therefore, the Constitution may only be amended after either two-thirds of the members of both Houses of the Legislature propose such amendment or after 10,000 citizens petition the Legislature for amendment of the Constitution; which petition must receive the concurrence of two-thirds of the members of both Houses of the Legislature. More importantly, the proposed amendment, whether by two thirds of the members of both Houses of the Legislature or by 10,000 citizens, must be ratified by two thirds of the registered voters voting in a referendum not sooner than one year after the action of the Legislature. In an apparent attempt to comply with this constitutional requirement, the Liberian Legislature, by a two-thirds majority of both Houses, passed a joint resolution on September 10, 2010, entitled: “Joint Resolution 001 (2010) of the Senate and House of Representatives of the 52nd Legislature, Republic of Liberia, Proposing a Constitutional Referendum to Amend Articles 52(c), 72(b) and 83(a) & (b) of the 1986 Constitution of Liberia” (Joint Resolution). The Joint Resolution was subsequently signed by the President, published by the Ministry of Foreign Affairs on October 14, 2010 and scheduled to be voted on by the registered voters in August, 2011. Under Liberian law, any Act passed by the Liberian Legislature and signed by the President does not become law and therefore enforceable or operational until it has been printed into handbills by the Ministry of Foreign Affairs. Moreover, the effective date of any such Act is the date of publication by the Ministry of Foreign Affairs. This being the case, can the NEC legally submit the Joint Resolution to the registered voters for ratification in August 2011; and will any such ratification be constitutionally permissible? The answer to this question is in the negative. The period between the date of publication of the Joint Resolution in October 2010 and August 2011, when the registered voters are expected to ratify same, is less than one year; and because the Constitution requires such ratification to be effected “not sooner than one year after the action of the Legislature,” there is not enough time to ratify the Joint Resolution prior to the 2011 elections. Therefore, it is impossible to constitutionally remove or reduce the ten-year residency requirement as envisioned by the Legislature to permit those who are otherwise disqualified by Article 52(c) to compete for the Presidency.
Given the clear and unambiguous language of Article 52(c) and the time constraint imposed by Article 91 relative to the holding of a referendum on amendment of the Constitution, the question, as I see it, is not whether or not the Constitution should be amended at this time in order to permit those who are otherwise disqualified by Article 52(c) from seeking the Presidency to compete for the Presidency in the 2011 elections; because phrasing the debate in this light both begs the question and is based on the erroneous assumption that Article 52(c) was intended to disqualify Liberians who, because of the Liberian Government’s inability or unwillingness to protect them from certain death, fled the country for their safety. Rather, the question is whether Article 52(c) was intended to disqualify Liberians who involuntarily left the country as a result of the civil war or who were forced by the civil war to remain outside the country for their safety, from competing for the Presidency by virtue of that fact. Stated another way, did the drafters of the Constitution intend to exclude otherwise qualified Liberians, who for no fault of their own, were forced by the civil war to leave the country and become refugees in various countries or who left the country prior to the civil war but were forced to remain outside the country because of the civil war, from seeking the Presidency? This, in my opinion, is and should be the crux of the debate regarding this issue. In answering the question posed, it is necessary to revert to the condition then existing in the country at the time of the drafting of the Constitution, particularly as regards the inclusion of Article 52(c) in the Constitution. Viewing the debate in this light, and especially considering the condition in the country at that time, it is clear that Article 52(c) was not intended to exclude otherwise qualified Liberians from seeking the Presidency because of their absence from the country as a result of the civil war. This conclusion is compelled by the fact that there is no evidence that at that time, Liberians dreamed of a civil war as a means of changing our government. An additional fact which lends credibility to and supports this conclusion is the history of Liberia as a nation-state at the time of the drafting of the Constitution and when the Constitution came into existence. In 1986 when the Constitution came into existence, Liberia had existed as a nation-state for one hundred and thirty-nine years without any major civil unrest other than what occurred in the 1800s, except the 1980 military coup, which at the time was the norm in many Sub-Saharan African countries. Hence, the staging of the military coup was not seen, and could not have been seen, as a harbinger of a civil war which in all likelihood would displace more than half of the country’s population, including many who sought refuge in various countries in and outside Africa.
In 1986 and prior to that time, many Liberians who left the country for educational and other purposes did so with the intention of returning to Liberia and not to remain outside the country for ten or more years. And while an argument could be made that some Liberians who left the country at that time may have intended to remain outside the country for protracted periods of time or indefinitely, such argument is pure conjecture, as there is no evidence to substantiate it. But even if there were some evidence to prove that some Liberians who left the country prior to the drafting of the Constitution; at the time of the drafting of the Constitution; or subsequent thereto, intended to remain out of the country for ten or more years or indefinitely, it would be impossible to determine which group of Liberians intended to remain outside the country for ten years or more and which group intended to return to the country in less than ten years or before the expiration of ten years following their departure from the country. Moreover, given human nature and our capacity to reverse previously made decisions, no one can definitively claim that Liberians who once intended to remain outside the country for ten or more years or indefinitely, would not have changed their minds and returned to the country had the civil war not occurred.
Therefore, we must interpret Article 52(c) both in light of the condition then existing in the country at the time of its adoption and the current needs and realities of our time. Law is not only based on logic, although logic plays a major role in the life of the law. Rather, law is made and construed based on the customs, mores and needs of the people at a particular time. In other words, the customs, mores and necessities of the time determine what is or should be the law. Law is therefore dynamic and must be construed in light of changed and/or existing circumstances or necessities. But assuming that law is based solely on logic, is it logical to exclude some of the most qualified individuals for the Liberian Presidency from competing in the 2011 elections simply because they were forced by the civil war to leave the country and are unable to reside in the country for ten or more years prior to the 2011 elections? I think not. In fact, I will argue that it is illogical or even irrational to exclude otherwise qualified Liberians from competing for the Presidency on that basis.
The current debate about Article 52(c), although slightly different, can be likened to the cases of Plessy v. Ferguson, in which the United States Supreme Court held that separate but equal facilities for black and white citizens of the United States did not violate the Equal Protection Clause of the 14th Amendment to the United Constitution; and Brown v. Board of Education, in which the same Supreme Court held that separate educational facilities for black and white students were inherently unequal, and therefore violated the Equal Protection Clause of the 14th Amendment to the United States Constitution. These two cases involving the same clause of the United States Constitution and the same issue, were decided at different times and under different political, social and economic conditions then existing in the United States; they were both decided based on the felt necessities of their times. Therefore, treating Article 52(c) in light of the current realities of our time and giving it such a meaning that ensures peace, stability and unity in our country by permitting the Liberian People to choose their President from a diverse group of presidential aspirants will not be unique to Liberia, as another country with which we are closely tied did a similar thing more than half a century ago. In my opinion, it is not beneficial to the Liberian People that the legitimacy of the 2011 elections be undermined or questioned as a result of a draconian and unreasonable or even irrational interpretation of Article 52(c), which is likely to have the net effect of excluding individuals who are otherwise qualified and to whom it was not intended to apply.
At this juncture, it is necessary to briefly discuss what I believe was the purpose of Article 52(c). While it is unclear, from the text of Article 52(c), as to why it was inserted in the Constitution, it is reasonable to infer that the purpose of Article 52(c) was to exclude or disqualify Liberians who have voluntarily resided outside the country for such protracted periods of time that they are “out of touch” with the social, political and economic realities or conditions in the country and are therefore ignorant of the actual needs and aspirations of the country and its people. This being the case, it is necessary to determine whether or not any or all of the current aspirants or putative aspirants for the Presidency of Liberia are out of touch with the social, political and economic realities in the country before we try to disqualify them from seeking the Presidency. If they are found to be cognizant of these realities or conditions, then there is no reason for their exclusion from the 2011 elections, since they did not voluntarily absent themselves from the country. Viewed in this light, it is clear that all of the aspirants or putative aspirants for the Presidency are fully aware of the myriad of problems facing the country; they were affected by the civil war like every Liberian and are therefore aware of what it will take to reconstruct the country and reconcile the people. Can anyone sincerely and realistically argue that any or all of the aspirants or putative aspirants for the Presidency are ignorant of the needs of the country? Who among the aspirants or putative aspirants for the Presidency is not aware of the abject poverty in which a qualified majority of the country’s population lives; the complete destruction of the country’s physical infrastructure and the resources necessary for reconstruction of the country’s physical infrastructure; the total destruction of the country’s social fabric and the need to rebuild same; the destruction of the country’s financial and economic system; or the need to reconcile and unify this divided nation?
Of course, one could argue, and such argument has often been made, that Article 52(c) was inserted in the Constitution by the late President Samuel Kanyon Doe as a sinister attempt to keep out his political opponents who left the country in 1980 and after the 1985 elections; and that therefore Article 52(c) must be strictly construed because it is intended to disqualify individuals who leave the country during political upheavals. While this argument seems to have some validity, it is unreasonable when scrutinized closely in light of the reasons why many of the declared and putative aspirants for the Presidency left the country, because it presupposes that Samuel Kanyon Doe intended not only to keep his political opponents who were waging war against his government out of the country while he fights for his very survival, but that he also anticipated the occurrence of a devastating civil war that would ultimately cause his death. This reasoning is also untenable, as the law presumes that every human being prefers life to death and Samuel Kanyon Doe was no exception to this presumption. Hence, assuming that Samuel Kanyon Doe inserted Article 52(c) in the Constitution to keep out his political opponents, what he intended to achieve does not apply to the current pool of presidential aspirants. Neither Samuel Kanyon Doe nor the drafters of the Constitution anticipated a civil war that would cause the deaths of more than 350,000 of our fellow citizens, including some of our best and brightest minds and caused many of our best and brightest minds to flee the country. This argument also fails because we must proceed on the premise that whenever public officials act, they act in the best interest of the country unless the contrary is proved by clear and convincing evidence. In this particular case, I have seen no evidence that Article 52(c) was inserted in the Constitution primarily as a sinister plan by Samuel Kanyon Doe to prevent his political opponents from seeking the Presidency; hence, we must presume that he acted with the best interest of the country in mind. Assuming, however, that Article 52(c) was a sinister plan or attempt by Samuel Kanyon Doe to keep out his political opponents, as has been argued in some quarters, should we as a nation preserve such a plan in perpetuity to the detriment of the nation? I think not and believe that although we do not have adequate time to amend the Constitution in order to permit individuals who are disqualified by Article 52(c) to compete in the 2011 elections, it is necessary, at this particular time, that Article 52(c) be suspended as was done during the 2005 elections, and be enforced in the elections to be held subsequent to the 2011 elections, at which time any Liberian who fails to meet the ten-year residency requirement will be unable to argue that a political upheaval or the civil war kept him or her out of the country.
Unlike many people, I believe that the residency requirement is necessary to prevent “fly by night” presidential aspirants who have voluntarily resided outside the country for protracted periods of time and have not resided in the country for ten or more years prior to a presidential election; and are therefore ignorant of the country’s present needs, from ascending to the Presidency by virtue of their wealth or influence. Moreover, there is nothing wrong with including a residency requirement in our Constitution, as Liberia is not the first or only country to include such a requirement in its constitution. The first democracy to have a written constitution, the United States of America has such a provision in its Constitution: “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.” To my knowledge, this residency requirement has had no negative impact on presidential elections in the United States and will have no such impact in Liberia, except as discussed in this article.
Based on all of the above factors, it is my candid opinion that Article 52(c) was not intended to exclude Liberians who were forced by the civil war to leave the country and are therefore unable to reside in the country for ten years prior to the 2011 elections from seeking the presidency; it was intended to exclude, from competing for the Presidency, Liberians whose voluntary acts or omissions make it impossible for them to reside in the country for ten or more years prior to a particular presidential election. The Liberian People need and deserve the best and brightest among us to serve in the most powerful and influential position our country has to offer, and should not be limited in their choices by a provision of the Constitution which was intended to weed out individuals whose voluntary absence from the country for protracted periods of time makes them ignorant of the country’s needs and problems, and thus disqualifies them from seeking the presidency.
Johannes Zogbay Zlahn is an attorney-at-law.