— Says representative democracy is being undermined; chides the Supreme Court for abetting constitutional breaches.
Renowned Liberian legal practitioner and former Dean of the Louis Arthur Grimes School of Law at the University of Liberia, Cllr. T. Negbalee Warner, has said that the conduct of the October 10, 2023 presidential and legislative elections, in the absence of new electoral constituencies based on the results of 2022 national census, will render the process illegitimate and unconstitutional.
Cllr. Warner said that the elections will be unconstitutional, given the fact that electoral constituencies will not be based on an equal number of voters as guaranteed by the Liberian Constitution, as well as the principle of ‘One Man, One Vote’, which is the bedrock and cornerstone of both constitutional and representative democracy.
He said the Supreme Court’s recent decision to trash a petition filed by the Collaborating Political Parties (CPP), praying the High Court to halt the voter registration exercise until constituencies are demarcated, is perpetuating a culture of breaching the constitution — a violation in which the court is also involved.
In its recent ruling in the case: ‘The Constitutionality of the National Elections Commission Planned Conduct of the Voters Registration without the Demarcation of the Constitutional Electoral Constituencies’, the Supreme Court held that while the NEC indeed has a duty under Article 80 (e) to reapportion constituencies, the said duty is not self-executing.
The High Court noted that the duty to reapportion constituencies can only be executed based upon preconditions — a concluded national Census Report, the Legislature’s threshold, and then the NEC’s duty to reapportion the constituencies pursuant to Article 80 (e).
The Court held that absent the preconditions, NEC is not at fault, and therefore it cannot halt the process.
“Without attempting a critique of the decisions — which cannot be done meaningfully in these short remarks — it has to be noted that the Supreme Court’s decision in each case was formalistic, and not reflective of due regards to the significant constitutional issues raised,” Warner stated In response to the ruling when he made remarks at the celebration of Law Day in Monrovia last week. “Having electoral constituencies not based on an equal number of voters as much as practicable is illegal and unconstitutional, irrespective of who is at fault.”
He said the Supreme Court’s decision could be interpreted to excuse any administrative agency from performing a constitutional or statutory duty if a precondition to the performance of the agency has not happened irrespective of the cause or motivation for the nonperformance. “It could also encourage the Legislature and other duty bearers to avoid doing what will trigger implementation of a legal requirement they do not wish to be implemented,” he said.
This is not the first time that the Supreme Court has presided over the breaching of Article 80(e) of the Constitution, Warner said, noting that the principle of one man, one vote as reflected in the constitution has been less than responsive.
The first known case on the subject was brought by Cllr. Marcus Jones and others in 2010 wherein they asked the Supreme Court “to determine whether or not the Legislature can ignore or set aside the results of a national census conducted to determine population growth and movements in Liberia and at the same time apportion seats to counties rather than setting a threshold as mandated by Article 80 (d) of the 1986 Constitution?”
Despite the clear and significant issue it raised, the Supreme Court dismissed the petition on grounds of raising a political question.
The second case was Liberty Party v. NEC, (decided 14 June 2011) which was a petition for a writ of prohibition filed against the NEC reapportioning constituencies in all counties although the joint legislative resolution, under which it was acting, had decreed that all the existing constituencies be maintained and only nine (9) additional constituencies be added in only six (6) named counties.
The Supreme Court acknowledged at the beginning of its ruling that the 52nd Legislature attempted to set aside a threshold to enable the NEC “reapportion electoral constituencies for the conduct of the ensuing... elections, but to no avail” and “twice passed threshold bills, which were sent to the President but twice vetoed”.
Though it was obvious fact that the joint resolution was intended to circumvent the establishment of the required threshold, the Supreme Court ruled that the Joint Resolution LEG: 002 (2010) was clear and needed no further statutory interpretation by the Supreme Court, and that the NEC, pursuant to the said Joint Resolution, was authorized by the Legislature to reapportion all the constituencies inclusive of the newly created nine (9) constituencies.
With this latest case, which makes it three in recent years, Warner believed that the Supreme Court, as a constitutional court, should have used one of the previously decided cases to see how a remedy could have been fashioned to address the evident and continuing illegality.
“The point is that we as a people and particularly lawyers, ought to affirm and protect the constitutional principles of equal protection, equal representation, inclusion, and fairness through liberal construction of the applicable constitutional provisions while rejecting or giving strict interpretation of discriminatory statutes and rules that benefit mainly a few especially those make such laws and rules,” he said.
Warner added that in order for constitutional democracy to thrive in Liberia, it would require the collective effort of “everyone, particularly for us lawyers, who are presumed to be the gatekeepers of society. A lot depends on our judgment and inputs — our sense of equity, our advocacy for liberal or strict interpretations of law, and our support for sound public policy.”
With just six months to the conduct of the October 10, 2023 presidential and legislative elections, dark clouds have begun to gather over the process as many have begun to question the genuineness and legitimacy of the processes leading to the voting day itself. From the pre voter registration process to the procurement of equipment, and the actual conduct of the registration process itself, many believe that the processes are not authentic, legal and being conducted fairly.
One man, One Vote
The principle of one person, one vote is the cornerstone of constitutional, representative democracy. It means equal value of every vote such that my vote has the same weight as your one vote.
To realize the principle of one man, one vote, the idea of constituency was developed and is established in the Liberian constitution, Warner said. “It is solely for the purpose of ensuring that every person is entitled to one vote, and that there is equal representation of people in the Legislature that Article 80 (e) provides that every constituency shall have the same population as possible.”
He urged well-meaning lawyers and legislators to stand up and equitably put up the fight in their various areas of influence in order to ensure constitutional democracy is sustained based on rule of law, inclusion, and equal treatment under the law.
“Constitutional democracy is one of justice and fairness; it gives power to the people; it upholds people’s rights to life, liberty and property; it makes mother Justicia proud. With hearts and hands, lawyers must defend this democratic space; we must put our education and expertise at the service of the country. We must not bend the law and think constitutional democracy will blossom seamlessly,” he urged his colleagues.