By Tiawan Saye Gongloe
The spread of the Ebola virus is certainly having multiple negative impacts on the lives of the Liberian people, their way of life, their love for one another in their families and communities, their economy and their politics. The Ebola virus may cause the indefinite postponement of the 2014 mid-term senatorial election and this situation bears the potential for confusion and conflict if the issue of postponement is not exhaustively thought through and discussed publicly.
This article is about the negative impact of the Ebola virus on an important upcoming political process, the 2014 mid-term Senatorial Election. It is intended for a lively, but informed debate for the purpose of sustaining the peace by an orderly discourse, in order to avoid unnecessary confusion and conflict based on ignorance or lack of information or hasty conclusion. In this respect, this article is a contribution to the peace-building and conflict prevention process. It would be a useful exercise for those who have views counter to those expressed in this article, preferably lawyers, to come forward with re-joinders in order to provide an opportunity for the Liberian people to have a clearer understanding of the issue under discussion as an avenue for the people to develop a national consensus in dealing with this important national issue.
There are two prevailing views about the up-coming mid-term senatorial election. One view is that the election should be held on October 14, this year and the new Senators installed into office on the Second Monday in January 2015, consistent with the Constitution of Liberia. The proponents of this view maintain that if this does not happen, then Liberia will experience a constitutional crisis, as the Liberian Senate will not be fully constituted to carry out its constitutional duties. The other view is that the senatorial election should be postponed indefinitely, until the spread of the Ebola virus is brought under control, or stopped or until the government of Liberia develops the capacity to stop the spread of the virus and Liberia is declared an Ebola free country, like Nigeria and Senegal. Those who hold this view argue that the holding of elections in Liberia this year is not possible because all of the activities associated with the process of holding election run counter to the advice of the experts, against the spread of the Ebola virus.
The contention of those who are seeking a postponement of the senatorial election is that the advice carried in the media in Liberia is that individuals should not touch any person who has symptoms of Ebola, or should not come in contact with the body fluid of such person. Saliva and sweat are two body fluids that people come in contact with easily when they find themselves in crowded places, such as training sessions, campaign rallies, debate sessions, polling stations, assembly for the announcement of election results and celebrations or protest demonstrations after elections. Therefore, the proponents of the postponement of the up-coming senatorial election hold the view that to conduct election while the death rate due to the spread of Ebola is increasing all over the country, with the experts predicting more deaths at an exponential rate, in the coming months, if not much is done, will be a serious threat to the lives of the Liberian people, thereby making the election an unnecessary risk. This author supports the view that election should be postponed because Liberia is undeniably the country most negatively affected by the spread of Ebola in the Mano River Sub-region. The United Nations has declared this outbreak of the Ebola virus, a threat to international security. Estimates by world renown virologist have put the estimates of possible infections by the Ebola virus variously at , twenty thousand persons, four hundred thousand persons and one million four hundred thousand persons in the affected countries. Deaths from Ebola in nearly two thousand or more, the highest among the Ebola affected countries and the highest in world history. This is a very serious development that makes the issue of the holding of mid-term senatorial election a luxury. This article will delve into the legal implication of postponing the holding of the up-coming mid-term senatorial election in Liberia.
Does the postponement of the up-coming senatorial election present a potential for a constitutional crisis in Liberia? The answer to this question is a big NO! Before explaining this answer, it is important to give some clarifications on the composition and terms of office of members of the Liberian Senate. The Constitution of Liberia provides, “…Each County shall elect two Senators and each Senator shall have one vote in the Senate…” (Article 45 of the Constitution of Liberia). The Constitution then went further to categorize the senators; and it did so in the following manner: “…the Senators shall be divided into two categories as the result of the votes cast in each County. The Senator with the higher votes cast shall be Senator of the first category; and the senator with the lower votes cast shall be senator of the second category; provided that no two Senators of the same County shall be placed in the same category. The seats of the Senators of the first category shall be vacated at the expiration of the ninth year. In the interest of legislative continuity, the Senators of the second category shall serve a first term of six years only after the first elections. Thereafter, all Senators shall be elected to serve a term of nine years.”(Article 46 of the Constitution of Liberia) This means that in 2005, the senatorial candidates of each county who obtained the highest number of votes became a Senator of the first category and the Senatorial candidates with the next higher number of votes became Senator of the second category. Generally, Liberians refer to the Senators of the first category as Senior Senators and those of the second category Junior Senators.
Given this background, it is important to note that in the 2011 General and Presidential Elections, only the Junior Senators participated as candidates, because their term of office was for six years, which expired on the Second Monday in January 2012. The Senators who were elected in 2011 and seated on the Second Monday in January, 2012 shall remain in office for nine years ending on the Second Monday in January, 2022. Their successors shall be elected in October, 2021 and be seated on the Second Monday in January 2022. The up-coming senatorial election is for those who were categorized as Senators of the first category or Senior Senators on the Second Monday in January 2006. The next group of Senators to be elected in the up-coming elections shall serve for nine years ending on the Second Monday in January, 2025. Their successors shall be elected in 2024 and seated on the second Monday in January 2025. This means that in 2017, there will be no senatorial election. The election in 2017 shall be for the President and members of the House of Representatives.
What are the unique functions of the Senate and how does it make decisions? The Liberian Senate has four basic functions that it performs exclusive of the House of Representatives. The first one is to give consent to the nominees of the President for appointment into public offices.(article 54 of the Constitution of Liberia) The second function of the Senate is to serve as a court for impeachment proceedings (Article 43 of the Constitution of Liberia). The third is the election and removal of the President Pro Tempore and officers of the Senate. In order to impeach any person, two thirds of the membership of the Senate must concur. (ibid). The percentage of votes required by the Senate to give consent to the appointment of a presidential nominee is not stated in the constitution. Therefore, it is reasonable to assume that it is simple majority of the members present. The Constitution does not state the percentage of votes required for the election of the President Pro Tempore and officers of the Senate. But it provides that the removal of the President Pro Tempore and officers of the Senate shall be by two thirds majority of the members of the Senate. (See article 47 of the Constitution of Liberia). It could, therefore, be assumed that the votes required for the election of the President Pro Tempore is simple majority. The assumption that it could mean simple majority if supported by Senate Rule 14 which provides, “…The President Pro Tempore shall be elected by a simple majority of the duly seated Senators...” The fourth function that the Senate performs by itself is the adoption of its own rules and the expulsion of a member for cause. The votes required for this is two thirds of the membership of the Senate. (Article 38 of the Constitution of Liberia). All other functions of the Senate are performed with the concurrence of the House of Representatives, either by simple majority or by two thirds majority depending on the issue. Article 33 of the Constitution provides, “A simple majority of each House shall constitute a quorum for the transaction of business, but a lower number may adjourn from day to day and compel attendance of absent members.”
|Health workers remove the body of a young man suspected to have died of Ebola.
Courtesy of (Reuters/James Giahyue)
What is simple majority? According the Black’s Law Dictionary, a simple majority is “a numerical majority of those actually voting”. Absent members, members who are present, but do not vote, blanks, and abstentions are disregarded. (Black’s Law Dictionary 9th ed.) This means what the Constitution of Liberia is saying is that the number of Senators required for the transaction of business is the majority of the Senators “actually voting”. This majority could be of thirty Senators or of fifteen Senators or any number between the two numbers. If a simple majority of each House means a simple majority of all the members, then according to the Black’s law Dictionary, it means, “a majority of all the actual members, disregarding vacancies; also termed constitutional majority; majority of the entire membership; majority of the membership.” In this case, it means a majority of the entire members of the Senate. According to the Constitution of Liberia this means thirty Senators. But is this what the Constitution of Liberia means when it says, “A simple majority of each House shall constitute a quorum for the transaction of business…?
Before proceeding any further it is important to look at other concepts of majority that should be looked at in an attempt to understand the number of Senators the Constitution of Liberia require for the transaction of business. The first is the concept of absolute majority. Absolute majority is “a majority of all those who are entitled to vote in a particular election, regardless of how many voters actually cast ballots.) Black’s Law Dictionary, 9th ed.) This would be a vote of a majority out of thirty Senators. This certainly is not simple majority. The second concept of majority that should be considered is the concept of super majority. Super majority is “a fixed proportion greater than half (often two-thirds or a percentage greater than fifty percent)”. (Black’s Law Dictionary 9th ed.) This is certainly not what the Constitution requires for the transaction of business by the Senate. A majority in parliamentary law could mean all members or some subset, such as all members present or all members voting on a particular question.”( Black’s Law Dictionary 9th ed.) However, the Constitution of Liberia simply states, “A simple majority of each House shall constitute a quorum for the transaction of business”. It does not say a simple majority of members present or members voting, etc. For the purpose of this discourse, since it is for public consumption, it is important to define the term quorum in legislative term. According to Black’s Law Dictionary, quorum is the minimum number of members (usually a majority of all the members) who must be present for a deliberative assembly to legally transact business. (Black’s Law Dictionary, 9th ed.)
In order to understand what the Constitution of Liberian means for the Liberian Senate when it says, “A simple majority of each House shall constitute a quorum for the transaction of business”, it is important to look at the procedural rules that govern the Senate in its operation as a legislative body. Rule Seven of the Liberian Senate is the relevant rule for the topic under discussion. Rule Seven of the Senate Rules provides, “A simple majority of the Senators who have been duly seated shall constitute a quorum for transaction of business and a two third (2/3) of said quorum shall be binding…”
The qualifying words here that distinguishes Senate Rule 7 from Article 33 of the Constitution are, “Senators who have been duly seated…” (see THE LIBERIAN LEGISLATURE: STANDING RULES OF THE LIBERIAN SENATE, 2009). The word seated means “to place somebody or yourself in a chair or other seat” (Encarta Webster’s Dictionary of English Language). This could mean those Senators who are present and seated at the call of any meeting of the Senate, if one relies on the meaning of seated as “to place yourself in a chair or other seat”. It could also mean the official taking of seats by Senators at the commencement of their work as Senators. The Black’s Law Dictionary defines the word duly to mean, “In a proper manner; in accordance with legal requirements.” In the former case a simple majority of the number of Senators present could constitute a quorum for the transaction of business. In the latter case, the quorum for the transaction of business is the simple majority of the members who were seated on the first day of official business or the entire membership of the Liberian Senate.
The fact that Rule 7 of the Senate rules says that a simple majority of those seated could form a quorum for the transaction of business, suggests that there could be a situation whereby Senators are not present and sitting in their seats at the call of a meeting and in that case Senate deliberations are limited to those present and sitting in their seats, or there could be a situation whereby some Senators are elected but not yet sworn into office ( as the case may be following a mid-term election) thereby restricting deliberations of the Senate only to those Senators who have been sworn into office; or there could be a situation whereby some Senators are unseated with some remaining seated, thereby limiting deliberations of the Senate to those who remain seated. In other words seated members of the Senate could be the full membership in accordance with the Constitution including those of both category A and those of category B or a lesser number of each category. The words seated members could also be restricted to only members of one category of the Senate, if the other category is not seated. What should be underscored is that Rule 7 provides for a fraction of the Senate to transact the business of the Senate and that fraction is the duly seated members. The other fraction is the none seated members. This fraction is not qualified to participate in the transaction of business of the Senate. In other words, the framers of the rule contemplated a situation whereby there could be seated members and non-seated members. Without this logical conclusion, the word seated would be meaningless. If this was not what the framers of Rule 7 meant, then the rule could have just said members of the Senate, without the use of the word seated.
The question is whether a simple majority of fifteen members of the Senate can transact business, where there are only fifteen duly seated members of the Senate? The answer to this question is in the affirmative. The Constitution contains a clause that provides for continuity of the work of the Senate, where fifteen members of the Senate are not seated or are out of office due to the expiration of their term. It conceived of the possibility of a delay in the holding of an election which could then cause a delay in the seating of new members of the Senate, by providing the qualifying words “legislative continuity” in article 46 of the Constitution. Article 46 of the Constitution of Liberia provides, “…In the interest of legislative continuity, the Senators of the second category shall serve a first term of six years only after the first elections…” In other words “legislative continuity” is the purpose for the Constitution creating two categories of the Liberian Senate and staggering their terms of office. Also, it can be concluded that this provision was meant to prevent a break in the work of the Senate caused by a senatorial election.
Given that the same clause is not contained anywhere in the Constitution of Liberia when it comes to the House of Representatives, there can be no other logical way of thinking about this clause of the Constitution, other than to conclude that it was meant to allow for fifteen Senators to always be present for performing the functions of the Senate. Therefore, there can be no crisis, if senatorial elections are delayed, unless such delay continues for six consecutive years. It is only a delay to have senatorial elections for six years from now on that could lead to the senate being totally vacant, thereby presenting a constitutional crisis as there would be no member of the Senate, because the term of every current member of the Senate would have expired. Since the House of Representatives alone cannot perform the functions of the Legislature, then, the absence of all members of the Senate in the Legislature due to a delay in the holding of senatorial election for a period of six years would definitely lead to a constitutional crisis.
So it should be clear to everyone reading this article that both the Constitution of Liberia by placing emphasis on “legislative continuity” and Rule 7 of the Standing Rules of the Liberian Senate, by placing emphasis on seated members of the Senate, provided room for a fraction of the Liberian Senate to transact the business of the Senate. Hoping that the argument that fifteen members of the Senate can transact the business of the Liberian Senate in now clear and understood by the readers of this article, the remaining issue is that requires discussion is what would be the status of the fifteen members of the Liberian Senate who should be standing for the mid-term election, if the said election is delayed beyond the Second Monday in January, 2015, the time for the legislature to assemble for the commencement of their duties for the year.
What happens to the fifteen members of the Senate, whose seats are up for election this year, if elections are delayed until their current term of office expires on the Second Monday of January, 2015? There is no precedent for such a situation in the legislative history of Liberia. Therefore, it is important to look to the Constitution of Liberia for an answer. The Constitution contains no provision for what should be done in the case of a delay or the impossibility of holding election on time. It only provides what should be done in the case of a vacancy for an elected position, if such position becomes vacant as a result of resignation, removal, or impeachment. In the case of the President, a vacancy is addressed by relying on the succession clause of the Constitution of Liberia.
In the case of a member of the legislature, a vacancy is addressed by the holding of by-election in ninety days. But there is no provision for what happens if a legislative election is delayed and the term of a legislator expires. Can the legislature pass a joint resolution to postpone the time for the holding of an election? The answer is No. There is no provision of the Constitution that gives the legislature this authority. Can the President postpone the holding of an election? The answer is a qualified Yes, taken into consideration the extraordinary power of the President during a state of emergency. The reason is that while the Constitution does not clearly provide for the President of Liberia to postpone an election, during the existence of a state of emergency, properly proclaimed, the President has the authority during such period to suspend certain constitutional rights. She has the right to suspend the right of free movement, the right of free assembly and other rights in her effort to address the problem for which a state of emergency exists. The Election Commission can then schedule election when a state emergency is lifted. So, while the Constitution does not provide for a postponement of election by the President, it provides for suspension of rights, safe for the right to the writ of habeas corpus.
Can the term of office of the fifteen Senators whose term of office expires in January 2015 be extended? The answer is NO. The reason is that the Constitution does not provide for the extension of a term of office of an elected official by any means other than succeeding himself by wining of another legislative election. Neither the President nor the Legislature has that authority under the Constitution of Liberia to extend a term of a member or members of any division of the legislature. The President of Liberia may “extend a regular session of the legislature beyond the date of adjournment or call a special or extraordinary session of that body to discuss or act upon matters of national emergency and concern.”(see article 32 of the Constitution of Liberia). This extension does not cover the term of office. The extension of a term of office can only be done by a constitutional amendment. However, the Constitution of Liberia prohibits any constitutional amendment during the existence of a state of emergency. It provides at Article 87 as follows: “…no constitutional amendment shall be promulgated during a state of emergency.” Therefore, the proper thing that should happen is that at the end of the term of office of the fifteen Senators whose seats are up for election, the said Senators should vacate their seats as there would be no constitutional or statutory justification for them to hold their seats indefinitely until the mid-term senatorial election is held. By the Second Monday in January, 2015, these Senators, the Senior Senators would have served their full nine year term. They must, as a matter of law, therefore, vacate their seats at that time. They have a right to run for those seats again and they may win, but they have no legal right or justification for holding those seats beyond their term of office.
Some members of the public have been concerned about what should happen to the salaries and benefits of the Senators whose seats would be vacant beginning on the Second Monday in January, 2015, if elections are not held before that time. Since the government is scrambling for money to deal with the Ebola virus, it would be in the national interest to re-direct the salaries and benefits of those Senators whose seats would be vacant to combating the Ebola virus.
In the light of what have been said in this article, all Liberians should focus their attention on striving hard to stop the spread of Ebola in Liberia because this virus has the potential of drastically reducing the population of Liberia and negatively impacting everything in the country. All other issues of national importance are, in the mind of this author, secondary in the face of the very serious threat posed by Ebola. There is no legal basis for the fear that the postponement of the senatorial election will create a constitutional crisis.
All Liberians Must First Unite To Save Liberia From Ebola. All Other Issues Including The Mid-Term Senatorial Elect Must Be Considered Secondary Until Ebola Is Defeated. There Can Be No Liberia Without Liberians. Therefore, Lets First Stop Ebola From Liberians.
The Author: Tiawan Saye Gongloe can be reached at: firstname.lastname@example.org