Liberia: The Necessity For Restoration Of The Doctrine Of Separation Of Powers
By Johannes Zogaby Zlahn
There is no doubt that according to the provisions of the 1847 and 1986 Constitutions cited above, the founders of Liberia and the framers of Liberia’s 1847 and 1986 Constitutions established or attempted to establish, a nation that would be governed by three coequal branches of government, in which no one branch would have and exercise a disproportionate share of the powers of government; a country wherein no one branch of the government is superior or inferior to either or both of the other branches; but one in which the powers of one branch are counterbalanced by the powers of the other two branches. They dreamed of a nation in which the excesses of one branch of government would be kept in check by the other branches. In this respect, legislative powers are counterbalanced by executive veto while executive powers are counterbalanced by legislative override and legislative oversight, among others. Similarly, judicial powers are counterbalanced by executive and legislative powers of the purse and the Legislature’s power to remove judges via impeachment. Finally, executive and legislative powers are counterbalanced by judicial reviewthat is, the power of courts to declare any acts of the executive and/or the Legislature unconstitutional. Even my six-year-old daughter will agree that this arrangement is fair, straightforward and inures to the benefit of society as a wholefair, straightforward and inures to the benefit of society as a whole if it is fully implemented and adhered to.
But has this seemly fair and straightforward system so neatly crafted and enshrined in the organic law of the land been implemented or practiced during the past 56 years? I am using the past 56 years as my point of reference because that’s how long I have lived on this earth. If this system has not been implemented during the relevant period, what are the factors responsible for the failure to implement this most important and indispensable provision of our organic law? Can this nation fully achieve its potential and live up to the aspirations of its founders and the framers of the 1847 and 1986 Constitutions if we fail to ensure the checks and balances enshrined in our Constitution? These are the issues I will attempt to address in this article, and in addressing these issues, I will propose some solutions I believe will help us to move forward. I invite my readers to question and disagree with any position taken in this article. My only hope is that we remain civil in our discussions, as I believe that all Liberians want what is good for Liberia although we may differ as to what is good for Liberia and/or how to achieve the good of Liberia.
I answer the first question posed in the negative. As far as I can remember, the checks and balances enshrined in the Constitution have never been fully implemented in this country. To the contrary, the executive branch represented by the presidency has had and has exercised a disproportionate amount of governmental powers in this country to the point where most of our citizens regard the other two branches as being irrelevant to the social, political and economic development of the country. It is mind-boggling that the citizens of a country that from its inception has been governed by a written constitution will appeal to the President for solutions to problems that do not remotely fall within the constitutional powers of the President to solve. It is also mind-boggling how Liberian Presidents have over the years usurped the powers of the other branches of the government by involving themselves in matters that should constitutionally be resolved by the Judiciary or the Legislature. It is also incredible how Presidents of this country believe that they are masters of the people as opposed to being servants of the people; and all of these are done with absolute impunity. In short, succeeding Presidents of Liberia have governed and exercised governmental powers similarly as governance and the exercise of governmental powers by absolute monarchs; and not in accordance with the doctrine of separation of powers enshrined in our Constitution. As more fully discussed below, while the presidency has expanded its powers far beyond what was envisaged by the founders of this nation and the framers of the Constitution, the expansion of presidential powers and the usurpation of the powers of the other two branches of government are not entirely the fault of any individual President, it is also the fault of the citizenry and a complacent Legislature and Judiciary.
As regards the question of why we have failed to implement, fully, the doctrine of separation of powers and checks and balances enshrined in the Constitution, I believe that two major factors are responsible for this failure. First, the personality cult created by succeeding Liberian Presidents whereby they are seen or treated as a “benevolent guide” for the nation without whom the nation cannot progress economically, socially, scientifically, etc. is a major contributing factor responsible for this failure. This personality cult has transformed succeeding Liberian Presidents into “larger than life” figures in our society, revered by the people as fathers or mothers of the nation. The net consequence of this personality cult has been the belief that as a “benevolent guide” for the nation the President is always right or can never be wrong, and this belief has in turn embolden Liberian Presidents to be contemptuous of the legislative and judicial branches of government, rendering them irrelevant in the eyes of the citizenry. One major contributing factor to this cult personality is the President’s appointment and removal powers, especially as contained in Articles 54, 55 and 56 of the 1986 Constitution. Second, the unconstitutional usurpation and exercise, by the presidency, of powers otherwise constitutionally allocated to one or the other two branches of government, coupled with the failure and/or refusal of the Liberian People and the legislative and judicial branches of the government to challenge this usurpation and exercise of unfettered and at times, extra-constitutional powers by the President is the other major factor responsible for this failure.
Presidents, like everyone else, are human beings and if they are allowed to grab as much powers as they wish to grab with impunity, they will. Hence, they cannot be exclusively blamed for usurping the powers of the other two branches of government since both branches are complacent and the citizenry seems to have no qualms with such usurpation and exercise of powers. By capitalizing on the complacency of the legislature, the judiciary and the citizenry in their unwillingness to challenge the President’s exercise of greater power than the Constitution allows, however, the Liberian Presidency has become an imperial presidency, which has on many occasions abused and subverted the Constitution with the legislative and judicial branches willingly or unwillingly sitting idly by and powerless to do anything about such abuse and subversion of the Constitution. This imperial presidency and the vices it produces are by their very nature inconsistent with the constitutional doctrine of separation of powers and checks and balances which the founders of this nation believed would serve as a bulwark against the abuse of powers and the tyranny of one or a few individuals acting under color of law.
I also answer the third and final question posed above in the negative. I fervently believe that in order for this country to progress in accordance with the aspirations of its founders who fled from the unimaginable sufferings inflicted upon them by their former slave masters, we must fully implement and adhere to the doctrine of separation of powers and checks and balances in this country. If we are to fully become a liberal democratic country, the presidency must be respected, but the President’s powers must be limited to those expressly or by necessary implication allocated to the President by the Constitution; and where, as in the case of the overwhelming appointment and removal powers granted the President by Articles 54, 55 and 56 of the 1986 Constitution, we must make the necessary amendments to curtail such powers. A presidency that is so powerful as to render the other two branches of government irrelevant is not only inimical to democracy, but it is dangerous to the stability of the nation. Such presidency, whether brought about through election or selection, is anything but democratic. Not only does an all powerful presidency pose serious threat to the effectiveness of the other branches of government, but it also poses serious threats to the civil and human rights as well as the liberties of the citizenry. After all, what good is it to have on paper three branches of government with enumerated powers, but only one can exercise all or a majority of the powers of government? Can I realistically call myself a diner at your table if all I am doing is sitting and watching you eat your food with nothing on my plate? In similar manner, can we seriously argue that our legislative and judicial branches of government are coequals of the executive branch if the executive branch exercises a lion’s share of governmental powers? Can we also seriously argue that the constitutional doctrine of separation of powers and checks and balances has been scrupulously practiced in this country when the President can take extra-constitutional actions with absolute impunity? I think not, and believe that what we have had over the last 56 years has been an all powerful imperial presidency whose actions and decision cannot be questioned or challenged in any meaningful way.
It is easy to identify problems but difficult to find or propose solutions to those problems. In this particular case, however, I dare propose some solutions to the problems I have identified in this article. I want to state, initially, that the solutions I have proposed in this article are by no means exhaustive and that others may have their own solutions to the problems. I, however, believe that my proposed solutions are a good beginning to our desire to achieve a more perfect nationone in which the Constitution and laws are not mere papers but are documents that guide our daily lives, conduct and actions. Bearing this mind, I propose that the following measures should be implemented to improve governance in the country and prevent the continuation of an imperial presidency:
a. Currently, the executive branch of government is the single largest employer in the country, and because the President is the executive branch of government, he or she exercises enormous power and discretion as to who gets important positions in government. With this power and discretion, the President can appoint his or her cronies, relatives and friends to government positions regardless of their qualifications for such positions; and those cronies, relatives and friends in turn can exercise unfettered power and discretion in appointing their cronies, relatives and friends to positions within their ministries and public corporations. Therefore in order to prevent an abuse of the President’s appointment power and ensure fair distribution of government positions among the population, it is necessary to limit, by constitutional amendment, the President’s appointment power to the appointment of the Chief Justice and Associate Justices of the Supreme Court and all judges of subordinate courts, and must also by constitutional amendment, limit the President’s appointment and removal powers to the appointment and removal of: (a) Ministers and Deputy Ministers; (b) Ambassadors and Consuls General; (c) Managing Directors and Deputy Managing Directors of public corporations; (d) Chairpersons and Commissioners of all Commissions; and (e) Directors General and Deputy Directors Generals of autonomous and other agencies of government. All other positions at government ministries, public corporations and other government agencies and commissions must be competed for through the Civil Service Agency. This will require a strengthening of the Civil Service System to ensure that competition is free, fair and open to all Liberians regardless of their ethnicity, social status, political status or connection.
b. The government must create conditions that are conducive to private sector investment, including the enactment of: laws that award tax breaks to businesses that are willing not only to invest in the country but businesses that are also willing to employ large number of Liberians at living wages; laws that reduce tariffs on merchandise and materials necessary to expand or improve existing businesses or to create new businesses; laws that obligate the government to extend loans to Liberian-owned businesses of various sizes; laws that obligate the government to guarantee loans extended to Liberian-owned businesses by private banks; and laws that obligate the government to extend loans to farmers. The purpose of such laws would be to create a vibrant private sector, capable of employing a majority of the Liberian People. A vibrant and well functioning private sector capable of employing a majority of the Liberian workforce would obviate the need to seek government position as the only means of obtaining economic and financial security and independence. Widespread employment in the private sector also reduces the ability of a President to use his or her appointment and removal powers to induce personal loyalty. Other measures may include strict enforcement of the “Liberianization Policy” and the implementation of a uniform minimum wage system for private sector workers, devoid of politics.
c. The current move to decentralize the government must be implemented, as the decentralization of the government would ensure independence and flexibility of local governments in the administration and management of local affairs. Such decentralization must include the election of superintendants and other local officials directly by residents of the various political subdivisions of the country. The election of superintendants and other local officials by the people will reduce a President’s appointment and removal powers and the direct exercise of those powers over the political subdivisions of the country. Under this arrangement, the national government must retain oversight responsibilities to monitor the activities of local governments, including local expenditure of funds.
d. The government must enact laws that permit the sharing of revenue between the national government and local governments. Under this scheme, certain percentage of the total revenue generated in the country will be given to local governments based on population and the wealth or the lack thereof of each political subdivision. In addition, counties that have natural resources must be given certain percentage of the total revenue generated from those resources, for local administration and development. Under the revenue-sharing scheme, also, the percentage of total national revenue allocated to wealthy counties must be slightly less than the percentage of total national revenue allocated to less wealthy counties. This will ensure a fair distribution of the country’s wealth among the various counties and between county governments and the national government, further reducing the power of the national government generally and the power of the President specifically.
e. The powers of the presidency must also be curtailed by specific legislations, restraining the President from taking certain actions without the concurrence of both Houses of the Liberian Legislature, except in situations where the Constitution expressly or by necessary implication reserves the taking of such actions to the President.
f. Perhaps the most pernicious aspect of presidential powers in Liberia is presidential gift-givingthe tendency of Liberian Presidents to give large sums of money and other items of value to institutions, groups and in some cases local governments as evidence of their benevolence. The ability of the President to give out large sums of money and other goodies to individuals, groups and institutions is an insidious act that has both created a personality cult around the President and a paternal/maternal relationship between the President and the people, with the President being perceived not as servant of the people, but as father, mother or guardian of the nation and its people. Presidential gift-giving has been effectively used by Liberian Presidents over the years to induce loyalty to the presidency as opposed to loyalty to the country and its institutions, thereby unfairly expanding the President’s powers. Accordingly, laws must be enacted that either specifically forbid the kind of presidential gift-giving discussed in this article or that delineate the situations in which presidential gift-giving would be permitted. Such laws must include clearly defined penalties, if violated by a President. Further, if Presidents are allowed to give gifts to particular groups, institutions or individuals, the purpose of such gifts must be clearly delineated, disclosed to the public and the Legislature in advance of the time for the giving of the gift. The source or sources of the gift must also be clearly statedthat is, the President must disclose to the country whether the gift in question is his or her personal money or other items of value or whether the proposed gift is something that belongs to the Government and People of Liberia.
g. The Liberian People must demand that the legislative branch of government should resist any and all attempts by a President to usurp governmental powers otherwise not expressly or by necessary implication reserved to the President by the Constitution and must further demand that the legislative branch must fully perform its oversight responsibilities as intended by the founders of this nation and the framers of our Constitution. In order for the legislative branch of our government to fully perform its constitutional duties, and truly become the coequal of the executive branch, however, the Liberian People must recognize that a President is not superior to members of the Legislature and, as such, does not have to be held in any higher esteem than members of the Legislature; both deserve the respect and reverence of the Liberian people. In essence then, whether or not we continue to have an imperial presidency in Liberia depends on the willingness of the citizenry to accept the fact that the President, like members of the Legislature and judiciary, is a servant of the people and further, that the President is not superior or inferior to members of the Legislature. If the Liberian people accord members of the Legislature as great a respect as they accord the President, the Legislature will be in a stronger position to perform its constitutional duties as the coequal of the President; and seeking legislative positions will become more attractive to a larger pool of competent Liberians and thereby hopefully reduce the number of presidential aspirants.
h. Perhaps the most significant development which led to the creation of an imperial presidency in Liberia was the abdication by the judiciary of its responsibility as an impartial and final arbiter of disputes, including constitutional issues. This abdication of responsibility by the judiciary contributed to the belief on the part of successive Liberian Presidents that they can do no wrong and that no one has the right to question their decisions and actions. In order to curtail presidential power and to prevent an abuse of that power, the judicial branch must assume its rightful place in our constitutional arrangement. Under our system of government, the Judiciary is charged with the responsibility of interpreting the laws of the land, and in the case of constitutional issues involving the government and the citizenry or one arm of the government and another arm of the government, is charged with determining whether the constitution has been violated. This responsibility imposes upon the Judiciary a duty to declare an act or omission of a President illegal or unconstitutional, where necessary. For several decades, the Judiciary, headed by the Honorable Supreme Court, failed to adequately perform its constitutional responsibilities to the detriment of the country. Instead, the Judiciary was extremely deferential to the presidency, such that one could reasonably argue that the Judiciary became subordinated to the presidency. In fact, there have been at least two instances in which Justices of the Supreme Court have been removed from the Bench by a President without any resistance by the Court.
It is important to note here that the judicial branch of our government, and not the political branches of our government, is the guarantor of individual rights and freedoms in this country. But the Judiciary can only guarantee individual rights and freedoms if its members are independent of the political branches of government and the body politic. Thus, to ensure that our judges can make decisions independently without being subjected to political pressure, members of the Judiciary are appoint to serve during good behavior until they are seventy years old and they cannot “be summoned, arrested, detained prosecuted or tried civilly or criminally by or at the instance of any person or authority on account of judicial opinions rendered or expressed, judicial statements made and judicial acts done in the course of trial in open court or in chambers...” The logic being that if our judges were elected, they would make decisions based on political expediency in order to be reelected. Hence, by sealing them from the political process, they would decide cases and interpret and Constitution and laws of this country without fear of political reprisals. Similarly, by exempting them from civil or criminal prosecution for judicial decisions made, it is intended that all such decisions would be made without fear of incurring civil or criminal liabilities. Having thus provided such protection for our judges, we expect the Judiciary to perform its responsibilities, and must demand that they perform this awesome responsibility as intended by the Constitution.
I must admit that there are hopeful signs that this time, the Judiciary, head by the Honorable Supreme Court will live up to the aspirations of the founders of this nation by performing its duties as intended. The case of Melvin M. Snow, Jr. vs. Some Members of the House of Representatives, which was decided by the current Bench of the Supreme Court and its progeny point more and more to the willingness of the Court to assert itself as a coequal branch of the government. However, this good news should not deter us from constantly demanding a more assertive role by the Judiciary, as the same Bench of the Supreme Court, in a four to one decision, held that the President of Liberia cannot be prosecuted for actions taken, including crimes committed, while in office unless he or she is first impeached by the Legislature. It is my hope that when faced with the same or a similar situation in the future, the Supreme Court will see reason to recall that decision.