By James Kpanneh Doe
Isaac T. Settro
July 3, 2011
Throughout history, national referendums have often been an important part of a political process. A Referendum is a right reserved to the people in a Republic to approve or reject legislation that has been referred to them by the legislature. The power of a referendum does not permit the people to invalidate a law that is already operative but suspends or annuls a law not yet gone into effect (Coury, Christopher, 1994; Notre Dame Journal of Law, Ethics, & Public Policy 8). From medieval through contemporary times, the Greeks, Romans, and the British, have used this process to make changes in their political systems, expand their democracies, and empower their electorates. The United States has not only popularized, but has institutionalized this process in its political system. Referendums have become a main staple for most state and local elections during most election cycles. In Liberia, historically, and on record to date, the country has held at least 3 national referendums. Since its founding, however, there has been several amendments made to the Liberian constitution that has not involved the full participation of its people. For example, in its recent history, the Liberian constitution was frequently manipulated by President William V.S. Tubman to ensure his 27-year repressive rule. Similarly, Presidents William R. Tolbert, Samuel Kanyon Doe, and Charles Taylor, all conducted themselves in such egregious fashion, to prolong their continued stay in power. Never mind their obsession with manipulating the constitution for political expediency, there were significant periods during which the Liberian electorate participated in a national referendum that helped advance the progress of the nation.
Three periods: First, on October 27, 1846, the country held its first national referendum to assert its right to self-determination, by voting to become an independent state rather than remain a protectorate of the American Colonization Society (ACS). Second, after declaring its independence on July 26, 1847, the country held its second constitutional referendum on September 27, 1847. This referendum achieved and approved a range of executive powers for the Liberian presidency and bicameral legislature. In most recent times, the country held its third constitutional referendum, on July 3, 1984, which ushered in the 1986 constitution under which it is currently governed. According to Liberian press reports and independent observers, an estimated 566, 891 voters participated and approved this current constitution which came into effect on January 6, 1986. Since then, numerous “Special elections” were held where the constitution was amended, changed, or suspended to accommodate new and emerging developments, and to satisfy political expediency.
Both in 1997 and 2005, portions of the Liberian constitution were again suspended, including the now famous, infamous “Residency Clause” to facilitate these special elections. In 1997, the erstwhile Taylor regime known for its tyrannical rule was ushered into power. And in 2005, Liberia held its first democratic elections that ushered in the current administration of President Ellen Johnson Sirleaf.
While notable progress has been made with the passage of time, the country is yet to shed the trappings of its ugly past.
Conflict and controversy continue to bedevil our search for building a sustained and vibrant democratic society. The Coalition of Professional Liberians for Grassroots Democracy (COL) examines the implications of the proposed referendum, and offers its perspectives on the four propositions. COL contends that whether separately or collectively, these propositions do not strengthen the organic laws of the Liberian constitution, and they ignore history, and therefore, should be rejected by the Liberian people. COL’s arguments are premised on the following:
1. The Residency Clause: Anyone who has followed Liberian politics over the last 25 years would be all too aware that the history of this clause and its insertion in the Liberian constitution in 1984 was laden with controversy. A review of the original constitution prepared by the Amos Sawyer Constitutional Drafting Commission did not include this particular provision. Participants in this process have confirmed that it was the Doe-appointed Kesselley Advisory Commission, which supplanted the Sawyer Commission that advised on the inclusion of this provision in the original Sawyer Constitution. Mr. Archie Bernard, former Secretary General of the Advisory Commission, offering his explanation for the inclusion of a residency clause, had this to say: “I was privileged to serve as Secretary General of the Constitutional Advisory Assembly during 1984…There were many rather heated debates during the assembly’s deliberations about the residency provision. The members were fully cognizant of the political history of Liberia and the fact that a Liberian citizen, who due to compelling necessity, would live outside Liberia either immediately or at sometime prior to a presidential election. In fact, at that time in 1984, we all knew of Liberian citizens, who for one reason or another were living in exile because of the 1980 coup…” (The Perspective web magazine, January 21, 2003). Moreover, according to most engaged observers of Liberia’s political landscape, the insertion of this provision was motivated by politics as the military regime sought to exclude prominent Liberians who lived in involuntary exile and had political ambitions from participating in the 1985 elections. The target included the current president and many other Liberians who fled the state of repression that engulfed the country at the time. It can be recalled that by the mid-80s, with the height of repression increasing under the military junta of President Samuel Doe, there began a mass exodus of Liberians out of the country. This provision also mirrors the rather dubious and false debate now unfolding at home and in the Diaspora on who should qualify as a Liberian citizen. Some sections of the Liberian political establishment having now gained political power without adequate competition and parity, now want to disenfranchise natural-born Liberians of their citizenship rights simply because they left their homeland to seek safety in free societies around the world. As a matter of fact, while some Liberians left home voluntarily, the country experienced an involuntary mass exodus of its citizens from all socio-economic strata of the society for the very first time, during the period covering 1985-1995. This forced migration process took Liberians to some faraway places like Australia, Thailand, and China, where they’ve never dreamed of going! This particular period also marked the decade of decline and institutional breakdown of the Liberian society. But political considerations aside, how relevant is maintaining such a provision and does this strengthen the organic laws of a post-conflict society like Liberia? Fundamentally, how does having such a law help the growth and development of our democracy?
COL has looked at countries that have recently emerged from protracted civil crisis like Liberia, such as Sierra Leone, our next door neighbor, and Rwandafrom which there was a mass exodus of citizens who fled their homeland during their civil wars. When their countries chose the path of peace and made the transition to a post- conflict society, they intentionally avoided including such discriminatory clauses or provisions in their constitutions which limit democratic participation, laws that excluded their citizens from participating in the political process. Rwanda, for example, a country that experienced an extreme form of war and genocide -in 1991, adopted one of the most visionary and progressive constitutions for a post-conflict society. The Rwanda Constitution states in Chapter 1, article 7 that: “Rwandans or their descendants who were deprived of their nationality between November 1, 1959 and December 31, 1994, by reason of acquisition of foreign nationalities automatically reacquire Rwandan nationality if they return to settle in Rwanda”. Another provision of the constitution further states: “Every Rwandan has the right to his or her country. No citizen may be forced into exile (chapter 2, article 24)”.
Not surprisingly, Rwanda has conquered the demons of war, is building a vibrant democracy, and is frequently ranked as one of the fastest-growing economies in Sub-Saharan Africa. Rwanda is reclaiming its once lost identity as the “Pearl of Africa”. Can Liberia reclaim its lost identity as the land of the “Grain Coast”? Moreover, how can Liberia still reeling from the scars of war and unresolved historical divisions, not take progressive steps to protect its fragile democracy? COL believes that this clause does not unite, but further divides Liberians. It is exclusive and not inclusive. Finally, COL believes that this clause has no legal or political justification, and in no way strengthens our democracy.
2. Changing the Retirement Age of Judges to 75: The central issue of this proposition is whether the Chief justice and his Associates, and subordinate judges should retire at age 75 instead of 70 as is currently provided by the constitution? While with age comes wisdom, proponents of this proposition have yet to provide any clearly articulated rationale or compelling arguments for this change. One associate justice, Honorable Gladys Johnson, recently retired at age 70 with dignity and respect. In her farewell speech, Justice Johnson called attention to how corruption has permeated this branch of government resulting in its loss of independence. Justice Johnson: “…So I am asking lawyers and justice, let us try to change this image that people have about this branch of government that we are corrupt. I am saddened each time I read the paper about how corrupt the judiciary is. It saddens me…”
Justice Johnson has also lamented how judges were prone to taking bribes, thus further undermining their independence. Liberia’s international partners have also pointed to the corrosion of independence of the judiciary. For example, in its 2010 Country report on Liberia, the U. S. State department noted: “Judges were susceptible to bribes from damages that they awarded in criminal cases. Judges sometimes requested bribes to try cases, release detainees from prison, or find defendants not guilty in criminal cases. Defense attorneys and prosecutors sometimes suggested that defendants pay a gratuity to appease judges, prosecutors, jurors, and police officers to secure favorable ruling from them.”
COL contends that changing the age of retirement for justices and judges does not address the underlying cause of the lack of independence of the judiciary. It also does not address the larger issue of the lack of trust in this branch of government capacity to dispense justice in a fair and transparent way. Needless to mention, the greater threat this poses to Liberia’s jurisprudence, its entire body of laws. With bribery and influence-peddling driving the decision-making process of judges, one has to wonder about the strength of our legal foundations.
COL believes that to better strengthen the constitution and guarantee the independence of the judiciary, justices of the Supreme Court must have Life tenure while in office. Given justices life tenure is an accepted universal practice in most democratic societies. It allows justices to assert and maintain their independence. A more transformative approach would be to have judges of subordinate courts elected for a fixed term as it is done in most states in the United States. COL believes that like Senators and Representatives and others holding public offices, judges must also be accountable to the people.
3. Changing The Elections Date: This proposition calls for changing the current constitutional election date from the second Tuesday in October to the second Tuesday in November. Again, it remains unclear what the thinking or rationale is for this change. In the absence of hard, verifiable evidence, the campaign period, is one of the few places to look to seek an understanding of this proposition. Based on the NEC timetable, the Liberian elections campaign period or cycle starts July 5, 2011, and ends October 9, 2011. This means that candidates and parties have only 94 days or a little over 3 months, to engage in a campaign exercise that would cover the 15 political subdivisions of the country. Extending the election date by an extra month, increases the campaign period to a 120-day cycle. No doubt, in politics like in life, people are quite capable of changing their hearts and minds to favor or support one candidate or party over the other. Yet still, COL believes that this does not provide a sufficient reason for changing the election date. Furthermore, COL contends that political parties have an ongoing civic responsibility to establish their parties’ infrastructures and develop their programs and policies to connect with the electorate and, if this has not been done prior to election cycle, parties have failed in their responsibility to their constituencies.
Advocates of this proposition also contend that geography and inadequate transportation infrastructure are compelling reasons for changing the election date. The climatic condition of the country lends it to two seasons during the year: A wet and a dry season. The wet season normally runs from May to October, while the dry season runs from November to March. There is a temporary, interlude period during the months of July and August. Because of its monsoon climate and rainforest, the country usually experiences a high rainfall during the wet season. Though only, 43, 000 square miles in size, poor transportation infrastructure and bad road conditions, makes certain parts of the country inaccessible, hence disenfranchising most of the people who live in the rural areas. While these are valid concerns, no empirical evidence exists to suggest what outcomes a change in the election cycle would produce. In other words, having a 90, 120, 150 or 180-day campaign cycle may or may not make a difference. But COL recognizes that these are important considerations not to be ignored, and recommends that voters’ behavior patterns be studied to prepare for such changes during future elections, as well as determine the impact of environmental and cultural factors on the electoral process.
4. Absolute Majority Requirement for Elective Positions: This proposition calls for amending the constitution so that election of all public officers, except for the President and Vice President shall be by simple majority of valid votes cast. In other words, election for public positions such as senators, representatives, mayors, township commissioners, paramount chiefs, etc should be by simple majority. Here again, it is unclear what plausible rationale the framers had in mind when formulating this proposition. The original provision calls for holding a “Run-Off” election in the event none of the candidates attain a popular majority vote- meaning 50+1 percent. Advocates want to eliminate this aspect of the provision and preserve this only for the two highest offices in the land. COL believes that a primary goal of elections is to encourage popular and mass participation of the electorate. Elections are also meant to strengthen the political process and expand democracy, and there is nothing more valuable than having the majority of the people decide who their leaders ought to be. Economic reasons as important as they are should not drive the decision-making process related to elections. Not even a billion dollars should supplant the people’s democratic right to choose their leaders! Even if economic considerations were weighed, COL’s economic experts have determined that the additional costs to the country will not be greater than the additional benefit. In other words, the NEC will not incur any extra-budgetary expense--costs that are not likely to be that prohibitively high, and which have already not been factored into its fiscal operating budget. However, where the costs for conducting these run-off elections were excessive, then a reconsideration of this amendment would be necessary. But the proof is in the putting and the burden of proof rests with the NEC to make its budget public information. Notwithstanding, the original framers were correct in terms of undergirding the principle of choice in a democracy when they inserted the “Run-Off” clause, as this is a sure and guaranteed way of institutionalizing the process of majority rule. We should not encourage a situation where we accept a ‘statistical margin of victory’. What the preponderance of research has demonstrated is that a run-off election always gives voters a second opportunity to elect their preferred choice. This was recently proven in the Montserrado County Senatorial By-election in which Geraldine Doe-Sheriff of the Congress of Democratic Change (CDC) defeated Clemenceau Urey of the Unity Party (UP) by a margin of 56% to 44%. Liberia has had a long history of “minority rule” for more than a century and nothing should be done to turn the clock back to an era that plunged the country into 14-year of civil crisis that paralyzed the nation and brought untold suffering to its citizenry.
WHAT IS THE WAY FORWARD?
Ever since it’s founding, Liberia has experienced many false starts and reversals in its attempt to construct an acceptable path to putting in place a firm foundation that would allow its democracy to flourish. The excesses of the past continue to remain a persistent feature of the political process. Then and now, one of the fundamental flaws of the constitution, is the restriction placed on political participation. For example, the early Founding fathers of the nation, influenced by social and cultural prejudices, purposely choose to exclude the indigenous majority from participating in the political process by not recognizing their citizenship status. For more than a century, before the advent of the April 12, 1980 military coup, the minority ruling elite consisting mostly of descendants of the early settlers failed to integrate the majority of indigenous Liberians into the political system. The 1847 constitution effectively denied 95% of the Liberian population, referred to as “Aborigines”, the right to vote, hold title to land, and by extension participate in the political, economic, and social structure of the country (1847 Liberian Constitution, Articles V, sections 12 & 13).
Like the settler minority ruling elite, the new military ruling elite that succeeded it also failed to effect the kind of constitutional change necessary to strengthen the political process. The new military ruling junta not only used the repressive powers of the state, but it enacted laws that excluded the participation of its perceived “enemies” and the majority from the political process. There are still provisions in the 1986 constitution (Articles 52(b &c) for example, under which the country is currently governed that is not radically different from the 1847 constitution and this continues to pose barriers and undermine the political process. COL legal experts have undertaken a review of the 1986 constitution and have discovered some provisions that do not strengthen the political process or deepen our democracy.
One of such provisions is the tenure of office of the President, Vice President, Senator, and Representative. Under the current provision, for example, the president has a six-year term and has the choice of running for a second term (See Articles 45, 48, & 50). While Senators and Representatives, have nine and six-year terms, respectively. There is no term-limit provision for a Senator and Representative. Not surprisingly, driven to protect their own political interest, we can now see why the legislature, the framers of the current Constitutional Referendum, did not make themselves a subject of any of the four propositions that the electorate has been asked to vote on in August.
How do we correct these errors, so that we do not continue to repeat bad history? It is clear that the current proposed Referendum does not provide us with the way forward. Clearly, the current approach, picking and choosing particular provisions or articles from the constitution and asking Liberians to simplistically vote ‘Yes’ or ‘No’ does not fundamentally address the root cause of our problems. Already, this exercise has been marred in controversy since it was launched 2 months ago by the NEC. The bulk of the Liberian populace, 85% of whom are illiterate, have already begun to express apprehension and misgivings about the process as they have not been sufficiently educated on why they have to vote on these specific provisions. Most Liberians are currently focused on the October elections and are quite oblivious or confused about the referendum.
COL believes that Liberia’s path to the future must be built on a systematic and committed effort to correct the excesses of the past: The cult of the presidency or imperial presidency, ongoing ethnic and class cleavages, continuing economic and political divide, political disenfranchisement, lack of access to opportunity, nepotism, cronyism, and more, are still entrenched and unresolved societal issues that we cannot pretend still don’t exist.
These issues if not appropriately addressed, will continue to undermine any democratic strides or gains that we have made.
COL contends that as important as a referendum is, this particular referendum is not only inadequate but fails to comprehensively address these deeply-rooted problems. COL believes that our constitution which represents the organic laws of our land that should govern us should be treated with reverence and not in a cavalier and piecemeal fashion. COL therefore proposes that a Second Constitutional Convention be held to re-examine the current constitution (1986), and address its inherent weaknesses and flaws. What the country did wrong 14 years ago and, before then, for 133 years, can be re-crafted into something new. This second convention would set the stage for correcting all of our sins of commission and omission, and address many of the major unresolved and unsettled issues of justice, equity, and ensuring the sustainability of our fragile democracy. More specifically, this convention can address issues on Term Limits for elective office; Citizenship and Naturalization for Non-Negroid Liberians; Election of Judges; Municipal and Local elections; and our National Symbols for Peace and Unity, among a host of others. It is now a little over twenty- five years or a quarter of a century since we held our First Constitutional Convention. The time seems appropriate to revisit this most important document in our nation’s history.
COL calls upon all Liberians to fully participate in this National Referendum process and vote NO on all propositions. Let’s do the right thing to correct the mistakes of the ugly past and the sins of our fathers and forefathers!
James Kpanneh Doe
Acting Executive Director
Coalition of Liberian Professionals for Grassroots Democracy (COL)
Isaac T. Settro
Deputy Executive Director, COL
PREPARED AND RELEASED ON FRIDAY, JULY 1, 2011
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