The Liberian Judiciary in Disarray

REASONS WHY THE MPC PETITION TO THE SUPREME COURT MUST BE DENIED

By Alphonso W. Nyenuh

The Perspective
Atlanta, Georgia
September 28, 2011

The Supreme Court of Liberia is considering a petition filed by the Movement for Progressive Change (MPC) that seeks to disqualify presidential candidates in the upcoming general election in Liberia who do not meet requirements under Article 52 (c) of the Constitution of Liberia, the famous or infamous 10 Years Residency Clause. The Supreme Court of Liberia must deny this petition because if upheld it would disrupt the pending election and create undue tension, upheaval, and violence in an already volatile and charged environment. Upholding the petition would also circumvent the election process, deprive the Liberian people of the right to decide their leaders, and stands to plunge our country back into violence and chaos.

Article 52 (c) of the Constitution of Liberia states that “no person shall be eligible to hold the office of president or vice president unless that person is resident in the Republic ten years prior to the elections” Therefore the MPC contends in its petition to the Court that this constitutional provision disqualifies a number of presidential candidates including leading contenders from contesting the October 15, 2011 because these individuals have not resided in Liberia for 10 consecutive years prior to the holding of this election and therefore they do not meet the residency requirements here.

Before proceeding with the arguments why the MPC petition must be denied it is important to understand the issues at stake and the context within which the current debate is being held.

EXTRAORDINARY NATIONAL CIRCUMSNTANCES – A VICIOUS CIVIL WAR

From 1990 until 2004 Liberia experienced a devastating civil war in which over 200,000 people were killed, villages and towns were razed to the ground, homes destroyed, and rampaging gangs roamed the country raping, looting and torturing the population. These circumstances forced more than a million people to flee into exile and many others into internally displaced camps. In an effort to end this national nightmare parties to the conflict (as well as civil society organizations and political parties) convened in Ghana and came up with the Liberia Comprehensive Peace Agreement (CPA). Understanding that the expression of the will of the people was critical in ending the war; and considering that the extraordinary national circumstances created by the war- the enforced exile and mass internal displacement – made it impossible to hold elections that represented the will of an overwhelming number of Liberians and that represented the will of a broad spectrum of the population, the CPA, among other things, empowered the National Transitional Legislative Assembly to undertake electoral reforms that would make that possible.

Article XVIII, section 1. of the Comprehensive Peace Agreement reads: “the parties agree that the present electoral system in Liberia shall be reformed.”

In fulfillment of the aforementioned provision, the National Transitional Legislative Assembly, the body charged by the CPA to enact said reforms, passed the Electoral Reform Law titled “An Act Suspending Certain Provisions of the Constitution of Liberia And Amending Specific Sections of the New Election Law of 1986 and Approving New Provisions Relating to The Budget Appropriations of the National Elections Commission.” This law, among other things suspended Article 52 (c) of the Constitution, the subject of the suit under discussion.

Section 2. Eligibility for offices of President and Vice President, subsection 2.1 of the 2004 Election Reform Law reads: “Article 52 (c) of the 1986 Liberian Constitution is suspended.”

This suspension of Article 52 (c) made it possible for presidential candidates in the 2005 election who did not meet the residency requirement to participate in the election. Article 52 (c) was suspended in the recognition that the Liberians who would have otherwise been prevented by this provision from contesting the 2005 presidential elections left the country under extraordinary national circumstances – A VICIOUS CIVIL WAR. Accordingly, it was determined by the parties to the CPA, and rightly so, that to deny them the right to contest the election on an action that was imposed upon them by extraordinary national circumstances would constitute a breach of their rights; and that such action also carried the potential of undermining the peace process and prolonging the suffering and misery of the Liberian people.

WHY THE MPC PETITION MUST BE DENIED: The Petition must be denied because applying it would constitute 1.) A violation of the Equal Protection Clause of our Constitution, 2) a violation of fundamental rights and 3.) Undermine national peace and security

1. EQUAL PROTECTION: Denying presidential candidates in the 2011 election the right to participate in the election on the basis of Article 52 (c), even though candidates in the 2005 election who faced similar circumstances were allowed to participate in that election will constitute a violation of the Equal Protection Clause of the Constitution. The concept of Equal Protection is a fundamental tenet of our legal system that guides against the discriminative application of the law. Rooted in the ideal of fairness, Equal Protection is a fundamental safeguard within our legal system that must never be overlooked or ignored.

Chapter III; Article 11, section C of the Constitution of Liberia (adopted in 1986) states: “ALL PERSONS ARE EQUAL BEFORE THE LAW AND ARE THEREFORE ENTITLED TO THE EQUAL PROTECTION OF THE LAW”. This provision requires that government is obligated to apply the law in a fair and even manner, i.e., to treat people the same if they are "similarly circumstanced”; and candidates in the 2005 election and those in the 2011 election are similarly circumstanced and should therefore be treated similarly.

A. Candidates in the 2005 elections were granted a reprieve from the requirements of Article 52 (c) and allowed to contest the presidential elections due to the extraordinary national circumstances- THE WAR. Equally so, some of the candidates in the 2011 election do not meet the 10 - year residency requirement as set forth in Article 52 (c) because they were forced to flee the country due to THE WAR. As such, under the Equal Protection Clause of the Constitution the 2011 candidates must be allowed to contest the elections just as their 2005 counterparts. To grant the 2005 candidates a reprieve from the requirements of Article 52 (c) on the basis of the existence of extraordinary national circumstances but deny the 2011 contestants the same treatment, even though they are similarly circumstanced would constitute a violation of the Equal Protection provisions of our constitution.

B. The Liberian civil war ended in 2003 with the Comprehensive Peace Agreement of 18th August 2003. With the end of the war came the end of enforced exile attributable to the war. Applying Article 52 (c) to the 2011 election would mean that for a 2011 presidential candidate to meet the 10- year residency requirement he/she must have resided in the country before or by 2001, (calculating backwards from 2011), even though the war ended in 2003. Such an application of the law would be discriminative and constitute an unfair favorable treatment to those who fled the country during the early days of the war (up to 2001), but deny similar treatment to those who fled in the latter years of the war (2002 or 2003) even though they suffered similar circumstances.

2. VIOLATION OF FUNDAMENTAL RIGHTS: Upholding the petition would deprive millions of Liberians their basic fundamental rights including freedom of choice and expression, principles which are at the very foundation of our democracy, and without which our democracy cannot survive. At issue here is whether or not we should choose to undermine our nation by violating the fundamental rights which form its foundation by depriving millions of Liberians their fundamental rights just to uphold a prohibitive law. This will thwart the will of the people and undermine the very pillars of our democracy - GOVERNMENT BY THE PEOPLE, FOR THE PEOPLE AND WITH THE PEOPLE.

3. NATIONAL INTEREST- THE GENERAL GOOD OF THE COUNTRY

The age old, tried and tested guiding principle in the making, interpretation and application of law is the concept of the good of the people- the national good. Laws are made for the good of the people, not to harm them. That is why provision is almost always made in the law that where a law ceases to serve the public good such law can be repealed or suspended. The MPC and Cllr. Cephus seem to be ignoring the national good and seeking the rather blind application of an inconsequential law; a law which upholds no Right, in order to deny our people their fundamental right for their votes to count.

To put it rather bluntly, denying as many as four to six political parties and their leaders the right to pursue the fundamental civic right of seeking elective office will not only throw a huge monkey range in the electoral process but it could in the blink of an eye erase all the gains we have made in the quest for lasting peace and democracy and throw us back into a war whose consequences we can not even begin to imagine.

What good does it do a country to risk anarchy only to uphold a punitive constitutional provision, a law that does not safeguard any right and whose only object, as almost everyone knows, was to deprive political opponents the chance to challenge an unpopular president who was bent on keeping power. What good would it serve our people and country to deny citizens the very fundamental right of participation in public affairs, which Mr. Cephus’ petition seeks to do, only to uphold an inconsequential law?

For this and all the other reasons stated and not stated I pray the Honorable Supreme Court of Liberia and the people of Liberia to reject the MPC’s petition and to discourage efforts by all other groups and individuals along these lines.

HOW DO WE REMEDY THE SITUATION OF THE 10 – YEAR RESIDENCY CLAUSE, MOVING FORWARD?

Some have asked about how to remedy the issue of the 10– year residency clause moving forward, considering that the law still remains on the books and also that a residency requirement may be necessary to prevent carpet- bagging and ensure that those who represent the people actually understand the needs, cultures and experiences of the people that they represent or seek to represent. To this I would recommend the following:

Since the Liberian civil war officially ended in 2003 with the Accra Comprehensive Peace Agreement of 18th August 2003, it should be established that enforced/involuntary exile from the country due to the war also ended at that time; so 2003 would essentially be the cut-off point. Consequently nobody would be allowed to claim the extraordinary circumstances of war as the condition of their fleeing the country beyond 2003.

Having already established that Article 52 c was suspended in 2004 with the Electoral Reform Law of the National Transitional Legislative Assembly, it should be clearly stated, though implied, that Article 52 (c) automatically came back into force in January 2006, with the seating of a democratically elected government, as dictated by the Comprehensive Peace Agreement which provided the basis for the suspension of the provision.

With this basis, a national decision should then be made to give a 10– year reprieve to all citizens who may have fled the country due to the war. The reprieve should begin from January 2006 when Article 52 (c) was reinstated with the seating of the democratically elected government.

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