Trampling the Constitution
By Nakomo Duche
University of Liberia
The Ebola epidemic is an emergency. I identified it as a threat to international peace and security well before the Security Council declared, and the Government recognised, it as such. Public health and logistics experts and others are addressing it with the fervour, if not the alacrity, required. Once the effort gets into full gear, a reversal of the exponential rate of infection should result. This will portend the ultimate control, and hopefully the elimination, of the disease.
While focussing on this problem, urgent attention also needs to be paid to the economic hit that the country faces. A recent World Bank report indicates that the short-term output and fiscal impacts, like the incidence of the disease itself, are expected to be greater for Liberia than for Guinea or Sierra Leone. Accountability and transparency with regard especially to the massive resources being mobilized for the Ebola fight must be prioritised. The Ebola and resulting economic problems, in turn, have political consequences the most obvious of which is the fact that elections are not being held this week in keeping with Articles 45, 46 and 83(a) of the Constitution.
Accordingly, one could say that a state of emergency exists. However, ‘state of emergency’, as lawyers like to put it, is a term of art, having specific legal signification. It is very carefully defined in the Constitution and, when declared, may result in emergency powers being used. So, is there a ‘state of emergency’ as spelled out in the Constitution?
The Constitution is the fundamental law, our secular bible. Why? Because it is the will of the people in whom, after all, all power is inherent. Such inherence is not by gift of the Constitution, although it is good to see that this immutable law of mankind is recognised in Article 1. Popular sovereignty is fundamental, learned by observing the human condition. Like the law of self-preservation or the law of gravity, it cannot be repealed – certainly not on this planet. Unlike them, the Constitution can be changed, but only by reference to the sovereign people. Indeed, the Constitution does need amendment, perhaps even thorough revision. Until that happens, it must be fully respected, not trampled.
Article 86(b) clearly and unequivocally provides that a state of emergency may be declared ONLY in the case of ‘a threat or outbreak of war’ or ‘civil unrest’ that threatens the Republic and represents ‘a clear and present danger’. That is not our situation now. Under our system, the Legislature makes the law, the Executive ensures that it is carried out, and the Supreme Court interprets it – all in conformity with the Constitution. All senior officials take an oath to defend the Constitution and laws of the Republic. (See Constitution of the Republic of Liberia, 1986, Articles 31, 53 and 70.)
The Deputy Speaker of the House of Representatives had the right idea when he suggested that the Supreme Court weigh in on whether Article 86(b) could be used to cover the Ebola crisis. While it would be unusual for the Court to issue an advisory opinion, it would not be a novel event, for the Court has done so at least once, in 1876. (See Opinion of the Court on Interpretation of Section 6, Article II of the Constitution, 1 LLR 509 (1876)). The Court would consider all the facts and circumstances and likely refer to‘minutes of constitution commission’ to determine the intent of the drafters of the Constitution, as it did in a recent case (See Toe v. FrontPage Africa Newspaper, decided 15 July 2013). The drafters obviously had in mind the sad history of emergency powers which were used to victimize some of them.
Emergency powers have been the bane of Liberia’s existence since, at least, the beginning of World War II which was used as a convenient pretext in 1939 to pass an Emergency Powers Act. Thereafter, Acts were passed regularly, often suspending the writ of habeas corpus, something that can no longer be done. (See Constitution, 1986, Article 87(b)). Under the 1847 Constitution, the writ could be suspended for not more than 12 months. (See Constitution of the Republic of Liberia, 1847, Article I, Sec. 20th.) On occasion, the suspension was renewed from year to year, in keeping with the letter, though not the spirit, of the constitutional injunction. In 1961 and 1967-68, the Acts were used to suppress labour strikes and the latter Act was a handy tool in the prosecution of Henry B. Fahnbulleh, Sr. for an alleged coup plot. Interestingly, the 1961 Act granted to the President ‘nineteen sweeping powers, including authority to expand the army and police, mobilize and conscript all labor, commandeer private property without going through the courts, order arrest without warrants, and detain citizens for one year without bail.’ (See Carl Patrick Burrowes. Power and Press Freedom in Liberia, 1830-1970: The Impact of Globalization and Civil Society on Media-Government Relations).
These sweeping delegations of authority were, in effect, derelictions of duty – manifestations of hubris, avarice and a collective autocratic psyche. They point to a need for the restoration of governmental balance, devolution of central power and repeal of oppressive laws.
Are emergency powers required to combat Ebola? No new powers needed to be invoked to disinfect the apartment and vehicle of the health care worker in Houston, Texas who contracted Ebola while caring for a Liberian. Had she refused, a simple court order would have solved the problem. We have similar remedies already on the books.
Another thorny question concerns the senatorial elections which were to have been held this week. In order not to have violated the Constitution, an amendment should have been arranged. This would not be possible under a de jure ‘state of emergency’. In any case, conducting an amendment referendum would have posed the very same problem – exposing participants to Ebola contamination – ostensibly being sought to be avoided by the postponement.
Could elections be held in the midst of an Ebola outbreak? Perhaps. Experts may be able to design them in such a way as to minimize the risk of contamination. Was this possibility considered? In any event, it is interesting to note that U.S. presidential elections were held in 1864 during their civil war.
The conundrum presented by postponing the elections could have been resolved with prior broad political negotiations at the most senior level and involving all stakeholders, similar to the Accra peace process in 2003 when representative groups came together to forge a peace and make necessary changes to the Constitution – an awkward solution, but one that was required to resolve an even more awkward problem. The beauty of such an arrangement is that it would get as close to popular involvement as possible. This would encourage broad, willing acceptance.
It is not too late.