Election or No Election: Another Hard Test for the Liberian Constitution

Since the return to civilian democratic rule there have been numerous crises of constitutional

ambiguities on key political and governance issues. These crises continue to cast doubt on the usefulness of the Constitution to Liberia’s postwar challenges, and in some instances, have gravely impacted public policy. From the appointing powers of the president to residential requirement of candidates for electoral offices, the Constitution has gone through numerous crises of interpretation. The latest crises have been the use of emergency powers, which I wrote on elsewhere and the proposed curtailment of range of fundamental rights by the President in response to the Ebola crisis. On November 28, 2014, what appears as the beginning of another major political and constitutional crisis began when the Supreme Court issued a Stay Order on the holding of Senatorial Elections set for December 16, 2014. This piece is particularly about this election and how it has exposed Liberia’s perennial crisis with its current constitution.
The Senate Election was initially scheduled for October 14, 2014 as per the Constitution, and by July 2014, political parties and independent aspirants had gone well into canvassing for support in the various counties. Sadly, the Ebola Virus that hit the country in March reached a crisis proportion in July devouring everything along the way from ordinary citizens and politicians to health personnel and health infrastructures. Stringent measures to contain the spread required both constitutional and extra-constitutional measures. This led to the declaration of a State of Emergency and restrictions on free speech and freedom of movement during certain times of the night.

The State of Emergency equally affected the holding of elections and the elections were therefore postponed indefinitely. As the government and international partners mobilized sufficiently against the virus, rate of infection reduced drastically by end of October and the panic began to wear away. Consequently the election was set for December 16 by the Legislature.
Does the Legislature or any branch of government have the authority to set a date for a process whose Constitutionally-scheduled time had passed? What become of the Senate in the wake of a potential power vacuum were elections not held by January 15? These are the questions at the center of the current constitutional crisis in Liberia instigated by the outbreak of the Ebola Virus disease.

As any major political issue, opinion is highly divided on this one. While some are proffering legal arguments against the election, others attach strong emotional sentiments on accounts that people are still dying and that saving lives is better than avoiding a constitutional crisis.
A group of citizens under the banner of ‘eminent citizens’ along with two political parties have condemned the process and prayed to the Supreme Court for a prohibition. They argue that the virus is still prevalent and that holding elections under such conditions would be unconstitutional, un-free and unfair, and that the legislature and no other branch of government have power to set a date for election.

The injunction on the election by the Supreme Court just 18 days to the polls has therefore exposed another weakness of the Constitution of Liberia that over the years continues to go under numerous tests for clarity including a referendum in less than ten years. While the petitioners’ claim that no institution has the authority to set an election date might hold legal waters, there call for a ‘sovereign national conference’ to decide such a date appears even more controversial and unconstitutional. Holding a national conference would as much require huge crowds and political activities just as holding elections would. Both events therefore seem counterproductive to the fight against Ebola.
Perhaps this ‘sovereign national conference’ was needed in 2003 immediately after the war to chart a new course for the country beyond what a handful of warlords and politicians dictated in the Accra Comprehensive Peace Agreement.

On the other side of the debate are 14 political parties (including the major parties) and some public intellectuals who support the conduct of the elections and do not see any constitutional violation with the setting of date. The parties argue that the date of December 16 was set after broader consultations with all political and civic actors. Whether elections are held or not, leaders of these parties continue to benefit from the weaknesses of Liberia’s political and economic governance systems that find roots in the current constitution, and elections have only been used to legitimize their control of the body-polity. None has over the years made strong cases for constitutional reform or alternative public policies that promote the redistribution of power, wealth and authority in Liberia.

This debate continues to deepen and the Supreme Court’s Stay Order is still in place as legal teams are preparing for a show down soon. At the moment no one can easily predict the outcome of the hearings, but one thing remains clear from the ongoing standoff: The fate of the election to replace fifteen Senators whose tenure expires on January 15 remains gloomy. Political and civic actors and Liberia’s international partners will have to step up and strategize for a peaceful handling of a potential crisis that has no precedence in contemporary Liberian political history.
What are the provisions of the Constitution for business of the Senate in the absence of half of its members, and would there be a power vacuum were elections not held by January 15? Again these are hard questions challenging the usefulness of the constitution of Liberia to the country’s contemporary problems.

Under Article 33 of the Constitution a simple majority of each House (Senate or Representatives) is required to transact any business. Anything below a simple majority cannot constitute a quorum, thus the Constitution instructs each House to compel members to attend. The current situation means only 15 Senators would be in the House of Senate were elections not held nationwide by January 15, and clearly this figure is one person short of a quorum for transaction of business in the Senate. Thus the potential for a power vacuum in Liberia come January 2015 is imminent.

In previous cases – particularly during the civil war - Liberian stakeholders, mostly warlords and politicians resorted to the formation of transitional administration and transitional assemblies to address intermittent power vacuums. The current case is different and unprecedented as there is no civil war and a constitutional government is well in place. Stakeholders in this case are not limited to warlords and leaders of political parties, but all Liberians of voting age. In addition, many Liberians are weary of such ad hoc transitional arrangements as they represent abnormalities and usually marred by widespread fraud and mismanagement of public resources.

What then can be done in the ongoing crises? Proposals abound daily on the way forward, but the lesson taught in this case like in previous cases of ambiguity over the constitution, is that the current Constitution of Liberia has outlived its usefulness, and like any postwar country, constitutional reform in Liberia remains urgent.

Finally, the argument here is not that a new constitution is a cure for constitutional crises, which are parts of processes of competitive democracy, and Liberia is not the only country that experiences such crises. All free societies do. But what is a common and best practice is that after protracted civil wars or political instabilities, laws and constitutions are reformed to address the anomalies that incite conflicts. Liberia started its Constitution reform exercise nine years after the war (in 2012) and continues to drag in bureaucratic channels. As this review process continues, these issues, particularly those exposed by the outbreak of the Ebola virus – state failure on constitutional responsibilities, use of emergency powers, electoral issues, and limits of powers of the legislature – are hard lessons for Liberians around which perhaps a ‘sovereign national conference’ is needed when the dusts on Senate elections are settled.

In the Cause of Democracy and Social Justice the Pen Shall Never Run Dry