Butchering Constitutional Democracy and Republican Governance Structure in Liberia!

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Temple of Justice, Capitol Hill, Monrovia

By Rabbi Prince Joseph Tomoonh-Garlodeyh Gbaba, Sr., Ed. D.

Introduction

Liberia is Africa’s oldest ‘Democratic Republic’. What this means in legal and constitutional terms is that as a Democratic Republic the decisions that govern the people of Liberia are made or should be made by MAJORITY of the Liberian people, not one or two individuals but the overwhelming majority of the Liberian taxpayers and eligible voters. Therefore, being a democratic nation, it also means the power is squarely vested in the people of Liberia, and the voice or will of the majority MUST PREVAIL. Consequently, it means what most of the Liberian people want is what must be done. Therefore, if the handful of individuals to whom power is entrusted by the people go contrary to the unanimous decision or will of the majority, then the status quo is butchering democracy or the will of the people by the people!

Separation of Powers

Liberia has a REPUBLICAN FORM of GOVERNMENT. What it means is that it has THREE EQUAL BUT SEPARATE BRANCHES: The Executive, Legislative, and Judiciary. Each branch has a separate responsibility or function to perform independently of the other branches. The arrangement is made in this way to ensure what is called the BALANCE OF POWER, to prevent one branch from being more predominant or powerful than the others. Hence, there is separation of powers among the three separate but equal branches of the Liberian republican form of government that must always be observed.

For an example, the Executive Branch is charged with the responsibility to execute the law. So, if people are stealing government money in the country and if there are mysterious deaths taking place in Liberia but those who commit the crimes are not being prosecuted, then you know it is not the Legislature or the Judiciary that is responsible for the impunity but it is the Executive Branch of the Liberian Government because executing or implementing the law falls under the purview of the Executive Branch of government. And, according to the Constitution of Liberia, if the Chief Executive, the President, fails to perform his constitutional duty he can be impeached by two thirds majority of the Senate.

The Legislative Branch is divided into two houses: 1. The Upper House or House of Senate and 2. The Lower House or House of Representatives. This branch of the Liberian Government is responsible to make laws that will protect the people and nation from all harm, to ensure rule of law and peaceful coexistence is fostered among the people, to prevent wars, crimes, from taking place in the Liberian society.

So, for instance, if you are wondering why there is so much lawlessness in Liberia, it may be due to the fact Liberian lawmakers refused to pass into law the recommendations of the Liberia Truth and Reconciliation Commission (TRC). That is why so much killing is going on in Liberia without end because some Liberian lawmakers are rebels and rebels are people who break the law. They do not abide by the law. Hence, you must not elect a lawmaker who is affiliated with rebel factions or that committed heinous crimes against Liberians and humanity because law breakers cannot be lawmakers!

The Judicial Branch interprets the law. Its responsibility is to make sure justice and peace prevail through rule of law—meaning–nobody is above the law. Its duty is to help  citizens understand the laws of the land, the constitution, and the consequences for breaking the laws of the land. The Judiciary makes the decision whether you have broken the law and what the consequences or fines are for breaking the law.

Further, none of the branches is authorized by law to cross the boundaries set forth in the Constitution of Liberia, the sacred body of laws in the land. Against this backdrop, the citizens cannot make any changes to the Constitution without the express consent of all Liberians who are of the age to vote (18 years and above). Thus, to make a change or to amend the Constitution, a referendum must be held. And, to hold a referendum, there are several steps that must be taken to successfully carry out a national referendum. Accordingly, when a situation occurs in which one branch of the Liberian government is overriding the other two ‘separate but equal’ branches, then our REPUBLICAN FORM OF GOVERNMENT is being butchered. Below, I provide a recent narrative of what I mean by “Butchering Constitutional Democracy and Republican Governance Structure in Liberia.”

How a Referendum is Held

A referendum is a direct and universal vote in which an ENTIRE Electorate (not some of the electorate but the entire electorate) is invited to vote on a proposal. This may result in the adoption of a new policy or law.  In the case of the current referendum, the idea began with the establishment of the Constitutional Review Commission (CRC) under the chairmanship of Justice Gloria Musu Scott during the Sirleaf Administration. The CRC conducted a nationwide survey that led to the submission of recommendations that were submitted from the Executive Branch to the Legislature for ratification. Subsequently, a joint resolution was passed by Legislature on September 10, 2019 for a referendum to be held no sooner than one year after the joint resolution was passed.

Thereafter, the Executive Branch of government must publish an official gazette providing information about the portion of the Constitution to be amended. Secondly, the information regarding what is to be amended in the Constitution must be widely publicized through the information services of the Government and mass participation is a prerequisite. If the propositions are more than one, they must be listed and printed in the Official Gazette separately and voted on separately and they must not be condensed.

December 8, 2020 Midterm Special Senatorial Elections and Referendum

The Supreme Court of Liberia in its October Term AD 2020 Sitting, heard a Petition for a Writ of Prohibition on November 10, 2020, submitted by the Collaborating Political Parties (CPP) as Petitioner and represented by its Chair, Alexander B. Cummings, along with the Rainbow Coalition as Co-Petitioner. The Petitioners complained about irregularities in the procedure carried out by the Government of Liberia to hold a national referendum without adhering to Article 92 of the Constitution of Liberia. The First Respondent in this case was the National Elections Commission and the Executive Branch of the Liberian Government through the Ministry of Justice as Second Respondent.  

The case was heard before the full Bench of the Supreme Court of Liberia in the presence of Chief Justice Francis Korkpor, Associate Justices Jamesetta Wolokolie, Sei-A-Nyene G. Yuoh, Yussif Kaba, and Joseph N. Nagbe. Having heard the arguments, reviewed the facts and circumstances revealed by the records and the laws controlling, it was adjudged on November 18, 2020 that:

  1. The First Respondent (National Elections Commissions) followed the Constitution by setting December 8, 2020 as the date for the midterm elections, which is “no sooner” than one year from the date the Joint Resolution of Legislature was passed on September 10, 2019. Hence, the National Elections Commission did not assume any jurisdiction not ascribed to it. Therefore, prohibition will not lie in this instance.
  • The Supreme Court quoted Article 92 as the basis to mandate that prohibition will not lie with respect to the timeframe for the dissemination of information and what constitutes sufficient awareness for the referendum, especially where the Petitioners (Collaborating Political Parties and Rainbow Coalition) admitted First Respondent (NEC) provided some type of awareness for the referendum. Therefore, NEC is not proceeding by wrong rule, so prohibition will not lie.
  • THAT THE ACT OF THE SECOND RESPONDENT [THE EXECUTIVE BRANCH] in DEVIATING FROM THE CLEAR LANGUAGE OF THE RESOLUTION OF THE LEGISLATURE BY COMBINING AND CONDENSING THE EIGHT PROPOSITIONS INTO THREE CATEGORIES QUITE CONTRARY TO THE PROVISIONS OF ARTICLE 92 OF THE CONSTITUTION WHICH SPECIFICALLY MANDATES THAT EACH OF THE EIGHT PROPOSITIONS BE STATED SEPARATELY ON THE BALLOT TO AFFORD VOTERS THE OPPORTUNITY TO EXERCISE THEIR RIGHT OF CHOICE, HENCE THE SECOND RESPONDENT PROCEEDED BY THE WRONG RULE. HENCE, PROHIBITION WILL LIE.”

In its closing remarks, the Supreme Court ruling reads:

“WHEREFORE AND IN VIEW OF THE FOREGOING, the alternative rate of prohibition issue is sustained, and the peremptory writ prayed for is granted. The NEC is hereby prohibited from printing ballots for the Referendum contrary to Joint Resolution LEG-002/2019 of the Legislature and Article 92 of the Constitution.”

The Role and Decision of the Judiciary

You remember I told you that as a Republic Liberia has three separate but equal branches and that each branch has its unique function to perform? For instance, the CPP and Rainbow Coalition realized that certain portions of the Constitution of Liberia was being violated so they went to the branch of the government that interprets the law (the Judiciary/ or Supreme Court) to find out if the Constitution was violated by the National Elections Commission and the Executive branch (NEC) that is responsible to run elections in Liberia. There were three cardinal issues raised: 1. The date of the midterm elections and referendum; 2. The argument whether enough information was provided the electorate in a timely manner; and 3. The way the propositions were placed on the ballots.

Of the three arguments, the Supreme Court ruled that it had no issue with counts one and two because in its opinion the NEC and the Executive Branch of Government did not violate the Constitution. Accordingly, the Supreme Court ruled that prohibition should lie in the third argument because the Executive Branch combined and condensed the eight propositions into three ballots, whereas Article 92 of the Liberian Constitution mandates that if there are several propositions, each one must be printed separately. Therefore, there was an issue regarding the ballots.

In this light, the Supreme Court ruled the referendum cannot be held if the ballots are not properly printed in accordance with the Constitution. Note that once the Judiciary interpreted the law and passed its judgment, it had performed its constitutional role. Moving on, the ball is then in the court of the Executive Branch through the appropriate agency responsible for elections (NEC) to do what the law instructs. Let us see in the following passage if the Executive Branch EXECUTED Article 92 correctly.

Who Is Elections Commissioner of Liberia: Nathaniel McGill or Davidetta Brown Lansanah?

Midterm elections and the Referendum are scheduled on Tuesday, December 8, 2020. The Supreme Court passed its decision on November 18, 2020 requesting the Executive Branch through the NEC to change the ballots before referendum can be held in 20 days. What is baffling is that Elections Commission is supposed to be ‘neutral’ or ‘independent’ of the government but the Minister of State, Mr. Nathaniel McGill recently usurped the responsibility of the Elections Commissioner to hold press conferences to decide what goes on in an election in which his political party is contesting for senatorial seats and the Chief Executive is campaigning for change in the tenure of the President of Liberia.

McGill hurriedly stated ballots will be printed in 20 days and indeed ballots are printed in twenty days as promised but what was not done according to law is that President Weah did not instruct the printing of a new Official Gazette to inform the electorate the current ballots were changed due to constitutional error. Below is Article 92 as follows:

“Proposed Constitutional Amendments shall be accompanied by statements setting for the reasons thereto and shall be published in the Official Gazette and made known to the people through the information services of the Republic. If more than one amendment is to be voted upon in a referendum, they shall be submitted in such manner that the people may vote for or against them separately.”

My Concerns about Electoral Violence and Constitutional Violations

While I personally do not oppose the holding of a national referendum which is indeed a very important function of our democracy, it is equally important to stress that many crucial issues regarding the climate, road conditions, sufficient civic education must be taken into consideration to give voters the opportunity to think over the propositions and ample time to travel to voting sites on the day of elections. Equally so, the entire Liberian voting population must be adequately engaged and not just a fragment of the electorates that live in Monrovia and its environs.

Most Liberians living in remote areas that are inaccessible by motor roads, and that have no radios to listen to the national or local  radio stations, etc. Most Liberians are not aware of what it means to hold a national referendum. Some of the people may be aware there will be special senatorial elections but whatever else that is to take place along with the election of senators is far beyond the comprehension of many Liberian voters.

In addition, over 85% of Liberians cannot read, write, speak, understand the English language but most of the government’s messages are broadcast in English. Yes, some attempts were made to communicate the message to the people in local vernaculars but not many Liberians in the hinterland have radios to even listen to the announcements that are made regarding the referendum and the senatorial elections scheduled on December 8th four days from now. 

Hence, it is very important for the government to understand that Monrovia is not Liberia, so to speak. Therefore, going around informing people through a loudspeaker about the referendum is not voters’ education per se. You must provide literate members of the electorate pamphlets to read, conduct workshops teaching them how the voting process works, and reach out to first time voters in every nook and cranny of the Republic of Liberia.

The Executive and Legislative Branches Tampered with the Constitutional Review Commission’s Report

Another issue that has come to light in the wake of constitutional violation is the fact that both the Executive and Legislative branches tampered with the Constitutional Review Commission’s recommendations submitted to the Liberian Government under the chairmanship of Justice Gloria Musu Scott. For instance, the people of Liberia (at home and in the diaspora) during the two-year CRC review process resolved/proposed, to wit:

                        1. That the tenure of the President, VP and Representatives, be four (4) years; and

                        2. That the tenure of the Senators be six (years).

In the current so-called referendum proposal, the tenure of the President is changed to five (5) years instead of four (4), and Senators from nine to seven ( 9-7) years instead of from nine to six (9-6) years. Against this backdrop, if these discrepancies are left unchecked and Liberians are allowed to go to the polls to vote “Yes” or “No”, the process itself will be unconstitutional and fraudulent by virtue of the fact what is written on the ballot for the referendum contradicts or contravenes the mandate of the Liberian people as per the CRC document.

Also, without a second Official Gazette published after the Supreme Court’s decision to inform voters about the recent change in the ballot, the referendum process will be illegal based on Article 92. To restore democracy and genuine rule of law to post-genocide Liberian society, we must be law-abiding to maintain the fragile peace of Liberia. We must stop butchering our constitutional democracy and republican governance structure in Liberia, to attain sustainable peace and national unity in post-genocide Liberian society.

The Author

Rabbi Prince Joseph Tomoonh-Garlodeyh Gbaba, Sr., Ed. D. is a Liberian Playwright & Scholar.

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