Liberia: 'CPP Withdrawal Clause' Unconstitutional

The Justices of the Supreme Court have overturned a landmark ruling from the National Elections Commission, which seeks to bar the Unity Party and All Liberian Party from contesting elections between now and 2023. 

The Court ruled that the judgment by the NEC Board of Commissioners, which reaffirmed its hearing officer’s decision to bar the UP from fielding a candidate in the Lofa County senatorial by-election and next year's elections on ground that the framers of the Constitution, as well as the elections law, did not compel political parties to submit their governing documents to the NEC simply as a mere formality was unconstitutional, dealing a massive blow to institution. 

It also hurts the political interests of  the Alternative National Congress and the Musa Bility faction of the Liberty Party — which asked the NEC to invoke Section 8.5 (2) of the Collaborating Political Parties (CPP) framework document as a means of rejecting and denying “any application from the ALP and UP to field candidates in their names in any election until the expiry of the 2023 elections, including up to six (6) months thereafter, same being the agreed contractual life of the CPP.” 

They intended to use the clause to suppress the plan of the UP and its political leader, former Vice President Joseph Boakai, to contest against President George Weah in 2023. 

Both men contested the 2017 elections but Weah won and, with another election 16 months away, Boakai is eying a rematch.

At stake before the Court ruling was whether the NEC  erred in upholding the doctrine of the inviolability of contracts — after the Minister of Justice Cllr. Frank Musah Dean had commented that the doctrine is invalid once it seeks to contract away constitutional rights or violate public policy, “hence unenforceable." 

The Justice Minister's argument, in the minds of the Supreme Court justices, is valid and that Section 8.5(2) of the CPP framework document manifests itself against the country's Constitution — as such it is being "declared null and void ab initio" — having no legal effect from the inception. 

The Court ruling, which was read by Chief Justice Francis Korkpor, acknowledges that Article 25 of the Liberian Constitution, which adheres to the principle of sanctity of contract; but  argued  that "where a contract violates the Constitution or any statutory law, such contract has no sanctity to be upheld, or enforced."

"The ruling of the hearing officer, which was confirmed by the Board of Commissioners of the NEC, is hereby reversed," the Chief Justice said. "The appellants, ALP and the UP, having duly withdrawn from the CPP are free and at liberty to pursue any political interest in their names including the fielding of candidates in the ensuring Lofa County Senatorial By-election, if they wish to do so."

He added that the Constitution is the supreme and fundamental law of the land, and its provision has binding force and effect on all authorities and persons throughout the Republic and that, "any laws, treaties, statutes, decrees, customs and regulations found to be inconsistent with it, to the extent of the inconsistency, [are] void and of no legal effect and must be so declared by the Supreme Court."

The ruling by the full bench of the Supreme Court is virtually final and can only be altered by the rarely used procedure of constitutional amendment or by a new ruling of the Court. 

It will forever reshape the country’s political landscape — particularly issues that have to do with the legality of political collaborations framework documents and beyond, the rights of NEC to enforce agreements between political parties. 

NEC is now compelled to abide by the Supreme Court ruling once the court transmits it — paving the way for the UP to field a candidate in the pending Lofa County senatorial by-election and subsequently next year's elections. 

Lofa County has for a year and a half been without one of its two senators after the Senator-elect, former Defense Minister Brownie Samukai, won the 2020 Senatorial election for that county but, because of a prior legal disability, was barred from taking his seat. 

His difficulty came when the Supreme Court halted his certification and revoke the suspension of the two-year jail sentence handed against him and his two deputies for failing collectively failed to comply with the high court’s mandate and judgment to pay 50% of the judgment sum, equal to US$573,828.15, within six months of last year. 

Samukai and two co-defendants were convicted for theft of property, criminal conspiracy, misuse of public money, and money laundering of over US$1 million and sentenced to two years in prison. 

The Court’s decision forced the Liberian Senate to write the NEC to declare a vacancy, prompting the electoral body to issue a notice of by-election for the seat.

Samukai has since been issued a reprieve by President George Weah.

The complaint by ANC and Bility was the result of the UP and ALP  withdrawal drawn from the CPP. The ALP left the CPP on grounds that the CPP framework document was tampered with by the political leader of the ANC, Alexander Cummings, an allegation he denied

Meanwhile, the UP withdrew from the collaboration for what it called “failed efforts” to resolve the internal impasse within the party. 

The ALP's allegations led to a court trial against Mr. Cummings and two other ANC officials, which has now been dropped.  The ANC and Bility had claimed their colleagues exited the CPP with the laid out procedure prescribed in the CPP framework,  therefore, they should not be recognized by the NEC as individual political parties until six months after the 2023 elections. 

The contesting parties also argued that a clause in the CPP Framework Agreement, Section 8.5 (2), forbids parties who exit the collaboration from fielding candidates in an ensuing election in their own names, respectively.

The UP and ALP's case against NEC grew from a ruling from the NEC  Board of Commissioners, affirming a decision by its hearing officer, that the electoral body was being prohibited from proceeding with any action regarding the endorsement of the UP’s candidate for the Lofa election until the Supreme Court considers the constitutional questions involved since the UP had argued that the matter before them was way above their jurisdiction.

But weeks ahead of the Supreme Court ruling, Minister of Justice, Cllr. Dean opined that there can be no restriction on the enjoyment of constitutional rights, except during an emergency declaration.

“The right to freely associate with or refuse to associate with political parties, trade unions, and other organizations, is a fundamental right guaranteed under Article 17 of our Constitution. No contract can inhibit the exercise of this fundamental right,” the Minister said.   "Article 1 of our Constitution guarantees the people the right to freely elect leaders of their choice through free, fair, and democratic elections,” he added. “In the process, political parties are guaranteed the right to field candidates; while individuals may register as independent candidates.”

Meanwhile, Boakai has termed the Supreme Court ruling as a “momentous victory” for all Liberians.

In a statement issued shortly after the ruling, the former VP said: “This is not only a victory for the people of Lofa County, but a momentous victory for the people of Liberia, and signifies renewed hope that Liberia is on its way to experiencing selfless, quality leadership; a leadership that you can trust!”