Ten Year Residency Clause Examined by LUP's Legal Team
(An Analysis by the Legal Department of the Liberia Unification Party)
The Constitution of Liberia, although adopted in 1984, became effective January 1996. The Constitution contains 97 Articles. Samuel K. Doe was inaugurated, as the twenty-first President of Liberia, along with his Vice President on the third Monday of January 1986. Prior to the expiration of the term to which he was elected, President Doe was assassinated in September 1990. His assassination was the direct result of a war levied against the Republic of Liberia by the National Patriotic Forces of Liberia (NPFL), headed by our current President, Charles Taylor. At the time of President Doe's assassination Dr. Harry F. Moniba was the Vice President of Liberia. In 1990, our Constitutional Court, the Supreme Court of the Republic of Liberia, consisted of Chief Justice: Emmanuel N. Gbalazeh, and Associate Justices: Robert G.W. Azango, David D. Kpomakpor, J.D. Baryogar Junius, and James K. Belleh, was in place and operating.
Upon the death of President Doe, the Constitution was in fact abrogated, the warring faction, NPFL controlled "Greater Liberia" and the Interim Government of National Unity (IGNU) administered Monrovia and its surroundings. The country was subsequently partitioned among the various warring factions that emerged with the passing of time. One interim or transitional government after another was established following each of the many peace accords. In 1997, "special elections" were held in Liberia for the election of President, Vice President, and Legislators on a proportional representation basis. The elections were not held in accordance with the Constitution. Of course, as indicated earlier, the Constitution had been abrogated. In preparation to participate in the elections, NPFL transformed itself into a political party, National Patriotic Party (NPP), which brought our present government to power.
On August 2, 1997, the Liberian Senate and the House of Representatives passed a Resolution "re-adopting" the Constitution.
Article 52 Issues for the Liberian People
I. Should the "Ten-year Residency Requirement" for presidential and vice presidential candidates be applicable in the ensuing 2003 elections?
II. In any case, how should the provision be construed?
The Implications of using Article 52(c) to Exclude Candidates from the Ensuing 2003 Elections
I. Article 52 of the Constitution provides that,
"No person shall be eligible to hold the office of President or Vice President, unless that person is: ... (c) resident in the Republic ten years prior to his election, provided that the President and Vice President shall not come from the same County."
It should be stated from the outset of this discussion that the issue is not whether or not the Constitution or any provision thereof should be enforced or overlooked for the sake of political accommodation. Our position is unequivocal - every provision of the Constitution and every law of Liberia, except those that contravene the Constitution should be enforced. So what is this all about? Some politicians and political parties are of the opinion that in order to be eligible to run for either the Presidency or the Vice Presidency, a person must have been resident in Liberia from 1993 to 2003. No other period of residence in Liberia matters to this group.
There are two fundamental flaws with this position - one will be discussed now, while the second will be discussed under Issue II. The first position assumes that the Constitution, which became effective in 1986, was not abrogated in 1990; therefore, the so-called Ten-year Residency Requirement remained effective and operative from 1986 up to and including 2003. But the assumption is based on a false premise; it is dangerous and disruptive of our body politic and should not be countenanced. For the sake of this discussion, let's assume that the Constitution was not abrogated. If we do, all provisions of the Constitution remained effective and operative, as of 1986, and not only the Ten-year Residency Requirement. Certainly, we cannot be selective about the effectiveness of provisions of the Constitution.
Therefore, let's look at other provisions of the Constitution that would impact our Republic, if the Constitution were deemed to have been in force continuously as of 1986.
Who would be President of Liberia today? Article 63(b) of the Constitution provides some insight. The Article states that,
"Whenever the office of President shall become vacant by reason of death, resignation, impeachment, or the President shall be declared incapable of carrying out the duties and functions of his office, the Vice President shall succeed to the office of the President to complete the unexpired term. In such a case, this shall not constitute a term."
We may not know who would be President today, but if we are reading this provision rightly, Dr. Harry F. Moniba, President Doe's Vice President, should have succeeded to the office of President in 1990 when President Doe was killed. He would have completed Mr. Doe's unexpired term; we would have had elections in 1991 and "President Moniba" might have won, and again in 1997, "President Moniba" might have won. Of course, there would have been no special elections in 1997, as the Constitution would have been deemed to be in force, and the current government may not have been in power today.
We also know that President Doe was killed as a consequence of the war waged against the Republic by the NPFL, led by our current President, Charles Taylor. If the Constitution be not considered abrogated, President Taylor would be said to have committed treason, and would not be President of Liberia today. At least that is our understanding of the law. Article 76(a) of the Constitution defines treason. The Article provides that,
"Treason against the Republic shall consist of: (1) levying war against the Republic; (2) aligning oneself with or aiding and abetting another nation or people with whom Liberia is at war or in a state of war; (3) acts of espionage for an enemy state; (4) attempting by overt act to overthrow the Government, rebellion against the Republic, insurrection and mutiny; and, (5) abrogating or attempting to abrogate, subverting or attempting or conspiring to subvert the Constitution by use of force or show of force or by any other means, which attempts to undermine this Constitution."
Would NPP have ever become a political party, or would it have been allowed to participate in the 1997 or any subsequent election? We think not. Article 80 of the Constitution provides that,
"(a) Parties or organizations which, by reason of their aims or the behavior of their adherents, seek to impair or abolish the free democratic society of Liberia or to endanger the existence of the Republic shall be denied registration. (b) Parties or organization, which retain, organize, train or equip any person or group of persons for the use or display of physical force or coercion in promoting any political objective or interest, or arouse reasonable apprehension that they are so organized, trained or equipped, shall be denied registration, or if registered, shall have their registration revoked."
Probably, the most important question is, who will interpret Article 52(c) of the Constitution? Oh yes, we are aware that the Supreme Court of Liberia is clothed with the authority to interpret the Constitution. But that's not the question. The question is which bench/justices will determine the controversy of whether or not a presidential or vice presidential candidate qualifies under the so-called Ten-year Residency Requirement? Again we refer to a Constitutional provision. Article 71 provides that,
"The Chief justice and the Associate Justices of the Supreme Court and the judges of subordinate courts of record shall hold office during good behavior. They may be removed upon impeachment and conviction by the Legislature based on proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery or other infamous crimes."
The moment Her Honour Chief Justice Gloria M. Scott and her colleagues of the current bench convene the Court to hear the case, they would have decided, at least in their minds, that the Constitution was abrogated in 1990, and was re-adopted on August 2, 1997. If not, we would have to search for His Honour Chief Justice Emmanuel N. Gbalazeh and his colleagues, whom we do not recall resigning, retiring, or being impeached. So, except for those members who are dead or have reached retirement age the Gbalazeh's Bench will have to be seated to hear the case.
The foregoing scenarios present not only a legal nightmare, but also a total disruption of our body politic - something no one, not even the worst enemy of Liberia, would want to contemplate, not to mention its occurrence. Contending that the Constitution of Liberia was not abrogated in 1990 and brought back into existence only on August 2, 1997, or attempting to retroactively apply provisions of the Constitution would lead to a constitutional mess that must be avoided.
Construing the Ten-Year Residency Requirement of Article 52 of the Constitution
II. Whether the Constitution was abrogated in 1990 or not, how should the provision be construed? Let's look at the provision again: "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 his election, provided that the President and Vice President shall not come from the same County."
The plain reading of the provision suggests that one would satisfy its requirement by having been a resident of Liberia for ten years at any time of his life prior to election. It should also be understood that the ten-year residency might be fulfilled in bit and pieces, as long as the different periods of residence add up to at least ten years. To contend otherwise would be to extrapolate, imposing words such as "immediately" and "consecutively" into the otherwise plain and unambiguous language of the Constitutional provision. Giving the absence of such words, the provision must be read, as written, without extrapolation from any source.
If the framers of the Constitution intended for Liberians to have been resident in Liberia ten years "immediately" prior to election, they would have said that. The provision would have read, "No person shall be eligible to hold the office of President or Vice President, unless that person is ... resident in the Republic ten years immediately prior to his election, provided that the President and Vice President shall not come from the same County."
Or, if the framers of the Constitution intended for Liberians to have been resident in Liberia ten "consecutive" years prior to election, they would have said that. The provision would have read, "No person shall be eligible to hold the office of President or Vice President, unless that person is ... resident in the Republic ten consecutive years prior to his election, provided that the President and Vice President shall not come from the same County."
Or, if the framers of the Constitution intended for Liberians to have been resident in Liberia ten "consecutive" years "immediately" prior to election, they would have said that. The provision would have read, "No person shall be eligible to hold the office of President or Vice President, unless that person is ... resident in the Republic ten consecutive years immediately prior to his election, provided that the President and Vice President shall not come from the same County."
We are of the opinion that the framers of the Constitution intended none of the alternatives shown above. This is supported by the fact that there are several provisions in the Constitution in which the word "immediately" is used whenever the framers of the Constitution meant that something should happen immediately.
No provision of the Constitution should be set aside or ignored during the 2003 elections for the sake of political accommodation. Similarly, no provision should be misinterpreted or misconstrued so as to satisfy the desire of any politician or political party. If we will apply one provision at any given time, let's apply all.