-Says the 1986 Constitution not responsive to current political realities
The Election Coordinating Committee (ECC) has said that the series of amendments that are being suggested to the 1986 Liberian Constitution cannot solve the massive flaws that are contained within that organic document, and has therefore suggested that the best way forward is for a new constitution to be adopted.
In a detailed final observation report of the 2017 electoral process, the Coordinator of the ECC Mr. Oscar Bloh said many of the challenges, especially electoral and administrative that Liberia currently faces, are precipitated by the contents of the constitution and, as such, it should be trashed and a new one developed. “This is because it is not responsive to the current political realities in the country,” he noted.
At a press conference in Monrovia, where the ECC made known its final observation report on the 2017 presidential and representative elections recently, Mr. Bloh said Liberia needs a new constitution that sets and sustains a foundation for democratic governance and provides for a balanced distribution of power as the solution to the governance and developmental challenges of the Liberian state—“this, we are afraid, the 1986 constitution does not provide.”
The signal for a new constitution is necessitated by a barrage of ambiguities that exist therein, which were as a result of pleasing the junta regime of the 1980s. Bloh also frowned on the excessive power that is given to the presidency by the 1986 constitution.
Proposals have been made in the past for several provisions of the 1986 Constitution, such as a change of election date, reduction in the tenure of the presidency, senate and House of Representatives; the removal of all judicial powers from the National Elections Commission (NEC) and the establishment of an Electoral Tribunal instead to adjudicate all electoral disputes.
“Because of the many provisions that require amendments, the ECC is opting for the writing of a new constitution, building on previous work done by the dissolved Constitutional Review Committee (CRC),” Mr. Bloh noted.
The ECC’s proposal comes within days after Associate Justice Philip A.Z. Banks, who served on the 1986 Constitution Committee as director of its legal department, publicly confessed that the process was manipulated for the constitution to please the People’s Redemption Council leadership. He said members of the commission, including its chairman Dr. Amos C. Sawyer, made inputs that helped to kill the real intent of that organic law and that he could not agree more for the rewriting of the constitution.
Serving as a keynote speaker at the Law Day celebration last week, Justice Banks stated that there are several provisions within the constitution that need to be addressed, because they were written to suit the interest of the military junta headed by Master Sergeant Samuel K. Doe.
The veteran Lawyer, who is also a law professor at the University of Liberia, said a critical look at articles 99, 98 and 97 of the 1986 constitution remains cardinal to the attainment of genuine peace and reconciliation as provisions of the articles were enacted to preclude from prosecution members of the military junta operating under the PRC, including other future trial (s) for their roles during the 1980 coup.
Addressing some of the discrepancies in the 2017 elections, Mr. Bloh noted that one of the hallmarks of a credible election is a responsive and harmonized legal framework that sets the parameters, standards and procedures for the conduct of the National Elections Commission (NEC), political parties and candidates.
In Liberia’s case, the legal framework which comprises the Constitution, the New Election Law (NEL) and other regulations, he said, are weak, unresponsive, not harmonized and in many instances lack consistency in their application.
For example, Article 83 (c) of the Liberian Constitution that confers judicial powers and authority to the NEC creates conflict of interest and does not reflect transparency and impartiality in adjudicating electoral grievances and petitions in cases where the NEC is a respondent.
“Though the inconsistencies among the Constitution, Statutes and Regulations can be harmonized through amendments, the best way to go is for a new constitution because the problems are just too many,” Mr. Bloh said.
Liberia has always had constitutional crises as a result of bad governance. Liberia’s first constitution dates back to 1847. Though highly protective against the wave of colonialism and imperialism in Africa, it was at the same time imposing a pattern of settler-colonialism on the local and indigenous population.
As a result of the coup in 1980, which toppled the over 100 years of Americo-Liberian rule, the 1847 constitution was suspended. However, responsive and participatory democratic governance was available in the transition years following the coup, which could have been done through the establishment of a viable constitutional order.
But according to Ibrahim Al-Bakri Nyei, a top Political Analyst at the Governance Commission (GC), this opportunity was missed. He added, “This was because Doe had a personal interest in becoming president, thus he had to ensure that any new constitutional arrangement would protect him and his associates.”
It was, therefore, obvious that what Liberia has today is a constitution with vague provisions and one that overly concentrates power in the hands of the president, including provisions that grants blanket amnesty to members of the military junta that led the 1980 coup, Al-Bakri Nyei said.
He said the failure or the inability of the government emerging from the 1985 elections to establish constitutional order and the inherent limitations of the 1986 Constitution in providing for self-governance and democratic participation at all levels promoted and entrenched the culture of “imperial presidency” even after the fall of the True Whig Party’s hegemony.
However, the Accra Comprehensive Peace Agreement was another lost opportunity on constitutional reform in Liberia, one of the CSOs (Civil Society Organizations) representatives at that Accra conference told the Daily Observer.
“Most nations that experience such civil and political breakdowns address constitutional issues before the return to civilian democratic rule and the restoration of viable constitutional order.
“But, unfortunately, we did not see that here because of individual vested interests. In most cases, like Kenya and Zimbabwe,” a CSOs representative who asked not to be named, noted that transitional arrangements lead to the constitution reform process; the population votes on a new constitution and then elections for a new government are held. The new government is formed based on the approved constitution and governs through its principles and provisions.”
Unfortunately, political actors and the international community deliberately ignored or fell short of considering constitutional reform as a critical element of transitional processes that facilitate state reconstruction.
The process was also manipulated by self-interests as several other interests topped the agenda at the peace conference, a leading Liberian political historian told the Daily Observer Tuesday. The call for a new constitution has been resonating since the end of the civil crisis.
Meanwhile, the ECC was the most vocal CSO during the 2017 elections. It became a critical voice that talked about many of the lapses that later confronted the electoral process. The ECC then proffered recommendations as the best way forward; but stakeholders, especially the NEC and the office of the president, thought to ignore many of the suggestions, which some feel led to the embarrassing political stalemate that attended the electoral process.