Liberia as a nation state in sub-Saharan Africa is going through a very turbulent period in its history. This national turbulence has been orchestrated by the outbreak of virulent human enemy, the Ebola Virus Disease (EVD) that has inarguably brought the entire state machinery to a virtual standstill.
The negative ramifications growing out of the spread of the disease across the country is nothing to write home about. The debilitating Ebola scourge has sent the nation on a partial holiday, forced international partners and investors out of the country and invariably imposed paralysis in every strata of the society. This is sad, despicable and leaves much to be desired.
On the heels of the Ebola crisis has also come what can easily pass as a looming constitutional crisis. This fast snowballing crisis is subsumed in the debate surrounding the suggestion for the postponement of the Special Senatorial Elections.
Though we have listened to many differentiated views on the postponement of the Special Senatorial Elections, it is the installments made by Dr. Joseph Korto, Former Education Minister and the response from Cllr. Tiawan Gongloe, for Labor Minister and Solicitor General, that have spurred yours truly to contribute to this worthy debate.
In a nutshell, Dr. Korto thinks if issues surrounding the postponement of the Special Elections are not appropriately addressed in the lead-up to the date originally set for the conduct of the election there could be a constitutional crisis. He further averred that any attempt to postpone the Special Senatorial Elections without doing due diligence, we could run into constitutional crisis.
For his part Cllr. Gongloe, the venerable human rights lawyer is of the view that the election should not be conducted as originally scheduled owing to the tragedy that the Ebola malady has unleashed on Liberia.
Both men, in my mind, have set the debate rolling on the right trajectory. For it is prudent for us to commence discussing the legal and constitutional ramifications underpinning the decision we will make relative to the postponement of the Special Senatorial Election.
Admittedly, there are couples of issues to appraise if we are to get to the bottom of the simmering constitutional crisis in the bubbles of our body politics. It is relevant to make this appraisal now and open the debate before it is too late.
I am reminded how on the eve to the conduct of the 2011 Presidential and General Elections, we as a nation almost allowed our politics to run into a constitutional crisis. The source of this was clearly the misunderstanding of Article 80 (e) of our 1986 Constitution. That article states: “Immediately following a national census and before the next elections, the Elections Commission shall reapportion the constituencies in accordance with the new population figures so that every constituency shall have the same population as possible; provided. However, that, a constituency must be solely within a county.”
This simple constitutional misunderstanding, almost derail the entire electioneering process in the lead-up to the 2011 polls. Lots of mundane legal argumentations were adduced by differentiated groups especially folks from the legislature. The bickering and political infighting went on until the eleventh hour to the election before some people became to see reason. By then it was too late and we had to make some kind of constitutional compromise again.
That compromise meant that, instead of implementing Article 80 (e), a Joint Resolution was passed thus forcing the NEC to carve up Electoral Districts using amalgamated voter registrants from Voter Registration Centers. The very lawmakers, who were responsible for this constitutional detoured, unjustifiably went on to charge the NEC with gerrymandering. The rest is history. That kind of constitutional blunder should not be allowed to be made again.
Special Senatorial Election
The substantive electoral management body of Liberia, National Elections Commission (NEC), set the time for the conduct of the Special Senatorial Election for October 14, 2014. This was done in keeping with Article 83 (a) of the 1986 Liberian Constitution which states: “Voting for the President, Vice President, members of the Senate and members of the House of Representatives shall be conducted throughout the Republic on the Second Tuesday in October of each election year.”
But realizing the political cum social anomalies that the Ebola scourge has visited on the country and the attendant disarrangement in serious national programs, the NEC wrote the Liberian Legislature expressing the need for the postponement of the Special Senatorial Elections. The Liberian Senate eventually agreed with the NEC observation. Senate Pro Tempore, Gbehzohngar Findley was quoted as saying ‘it was not practical, prudent and logical to call for election in October when those who should be voting are dying in their number because of the Ebola epidemic…” (Daily Observer, September 9, 2014)
In the same article quoting Pro Tempore Findley, it is said that following the Senate’s Joint committees on Autonomous Commission and Agencies and Judiciary perusal of the NEC communication, it advised that …with such expression of inability by the NEC for understandable reasons and underlined supra, the Liberian Senate should now commence immediate discussions with the Executive, which has the constitutional power under the State of Emergency.”
My reading in this whole development is that the Liberian Senate and by extension the Liberian Legislature, has tacitly endorsed the postponement of the Special Senatorial election but is cleverly passing the bulk onto the Executive Branch of government. Though I am not a constitutional lawyer nor am I purporting to be a legal luminary, some legal issues clearly need legal interpretations here. For it is often said, anything that is not done legally is not done at all. Apparently, the way things are unfolding relative to this Special Senatorial Election postponement, we could be dangerously proceeding illegally.
For instance in Chapter IX Article 87 (a) of the 1986 Liberian Constitution it is explicitly stipulated that “Emergency powers do not include the power to suspend or abrogate the Constitution, dissolve the Legislature, or suspend or dismiss the Judiciary; and no constitutional amendment shall be promulgated during the a State of Emergency…”
By calling on the President to change the election date from the second Tuesday in October to another date, are we not unwittingly attempting to breach our constitution?
It is no gain to say that Ebola is a serious national distraction and concern but why we have got the time can we avoid what will portray us as a people who do not care of what become of our constitution. Granted that all of the arguments are worthy, are we ever giving thoughts to whether they are constitutionally and politically correct?
It is a fait-accompli that in our jurisdiction we do not have a constitutional court hence logically the onus is on the Supreme Court to provide some legal interpretations on the matter before it is too late. As a matter of fact, we are about two and the half week away from the statutory period for conducting the Special Senatorial Election and nothing substantial has been put in blue towards this end. The sooner we act the better.
It’s over to you, Honorable Supreme Court.