By Ahmed K. Sirleaf II
The December 7 landmark Supreme Court of Liberia decision in Liberty Party et al, versus the National Election Commission(NEC) was a pinnacle of rule of law reset in Liberia. Many hailed the Decision (and the fact that aggrieved parties sought remedies through due process of law) as a victory for the rule of law. It shows that Liberia has come of age, despite a plethora of other national challenges. So, what happened? To help us answer this question, let’s first begin with some context, and history.
Elections are tense and anxious enterprises, as they should be. They are characterized by heated political campaigning. The stakes are often high. Nerves are frequently raw. In Liberia, 20 presidential candidates, and nearly a thousand more running for seventy-three lower house seats, demonstrated how tension-packed elections can be. In particular, they tended to undermine the attempted so-called “smooth transition” from the Ellen Johnson-Sirleaf Presidency to “a democratically elected successor Government.” Tension-packed, the first round was. Nothing less is expected of the runoff, either.
All marred by deceit and political infighting. Observers characterize the backdoor duel as simply unprecedented. Tantamount to derailing the President’s dream of “a smooth transition.”
When Ellen Johnson-Sirleaf was elected Africa’s first female head of a sovereign African nation in 2005, the world was elated. That global elation earned her accolades as the ‘darling’ of the West. No doubt, it was a profound moment for the tiny West African nation-Liberia, which was reeling from nearly fifteen years of self-destruction. Vestiges of the war years probably allowed for less stringent attention to the rule of law, back then, much less transparent elections.
One only needs now to listen to the political leader of the Coalition for Democratic Change, Ambassador, Senator George Manneh Weah. The Senator has been quoted in recent times as suggesting that previous post-war elections were anything, but free, fair, transparent or credible. For example, he argues that parties contesting the outcome of the October 2017 elections should do exactly like he did in 2005, and 2011, respectively. All for the sake of peace. “I kept the peace, even though I was cheated twice”. However, no one has corroborated the Senator’s claims that the referenced two elections, which brought President Sirleaf to power, were essentially rigged.
The implications that during those elections the rule of law was compromised on the altar of expediency—so as not to plunge the country back into the abyss of political violence are far-reaching. They may now lead people to conclude that it is good to ignore possible flaws in the recently held elections so as to ensure a smooth transition of power and avoid a constitutional crisis. The tendency to compromise the rule of law for the expedient is not new to Liberia when it comes to elections.
The compromise of the rule of law, less respect for Liberia’s institutions is not new. Historians remind us that elections in Liberia have been anything, but free, fair and transparent.
Before we proceed, we first need to draw a distinction between elections in a hegemonic regime (where one party (Republican) and then another (True Whig)) won all elections, to a contemporary democratic dispensation that posits serious respect for the constitution and rule of law, not the political manipulations of an earlier era.
Professor emeritus Elwood Dunn of the Sewanee University of the South, recounts that Charles D. B. King was president, just a few years before Tubman ran for President in May 1943. King presided over a hegemonic regime, which rigged prior elections. “Tubman was not elected in 1943 or re-elected in 1955, in free and or credible elections, either,” because Tubman’s era was a hegemonic era where the TWP won all elections (Dunn, 2017- telephone interview).
An antithesis to the rule of law, for which Liberia was most remembered ; earning the country a place in the Guinness Book of Records, was the 1927 elections. President Charles D.B. King so rigged the election that, it was recorded “the most fraudulent ever” in world’s history. With the number of registered voters at 15,000, King won re-election with a whopping 243,000 votes over Thomas J. Faulkner’s 9,000 votes—more votes than there were voters.
More recently, the evolution of Master Sergeant Samuel Kanyon Doe, from a military ruling junta to a civilian presidency was a far cry from what is happening in 2017. In 1985, then Head of State and Chairman of the People’s Redemption Council, Master Sergeant Samuel K. Doe, had his instructions for his head of the Special Elections Commission(SECOM), Ambassador Emmet A. Harmon. Records show, Harmon had his marching orders—to deliver the Presidency to Chairman Doe. There was nothing like exhausting constitutional legal remedies through SECOM if anything went awry. Chairman Doe, at the time, was the remedy unto himself. Of course, needless to mention that context is important here, as Doe’s was a military regime; not so keen on democratic tenets (Dunn, 2017). Instead of counting the votes at polling places, per law, SECOM chief, Harmon, appointed a 50-member committee, who delivered Doe’s 51% of the popular votes to his (Doe’s) National Democratic Party of Liberia. Just enough to avoid a run-off.
Professor Dunn warns, “as I often tell people, Liberia is an old country heavy with history. That early history needs to be understood and appreciated, as do the events since the 1980 military coup.”
In 1985, Gabriel Kpolleh, Edward Binyah Kesselley, Gabriel Baccus Matthews and others had no recourses to apparent electoral fraud claims. Simply, there was no rule of law. State institutions like the Judiciary (the Supreme Court and other such state bodies) either did not work in and of themselves, or were not respected. Judges were afraid. For instance, one Supreme Court Justice during the times of Doe in 1985, stated, “I will not issue an order which will not be carried out,” according to sources familiar with this quote.
As stated elsewhere, this was not new to Liberia. The Press was muscled during the days of President Edwin Barclay as they were during the reign of Barclay’s successor, President William V.S. Tubman. Famous pamphleteers, Tuan Wreh and Albert Porte, were often victimized by Tubman because of their objective and fearless reporting.
Similarly, President Doe had no patience for straight shooting journalists, arguably, having learned the craft of suppression as a soldier from past regimes. My own elder brother, journalist and former Minister of Foreign Affairs, Cllr. Momolu V. Sackor Sirleaf, went to jail several times because he stood for the rule of law and respect for State institutions. His Footprints Today newspaper was shut down many times as were other papers like the Daily Observer.
Journalists were tortured and killed under the Doe Regime. So too were university students. In 1984, soldiers under the command and control of then Minister of National Defense, Major General Gray Dioh Allison, violently moved onto the main campus of the University of Liberia, Capitol Hill, to quell anti-government demonstrations. The details of what happened there are too traumatic to recall. Hence let us fast forward.
Then the war years
Alas, there’s no point mentioning rule of law or any real functional state institutions during the war years. Extra judicial and extra constitutional violations were too many to count or speak of. We, as a people were simply too unloving of one another. We pitted one tribe against the other. One religion against the other. We pitted whom we viewed as the oppressed against whom we viewed then as the oppressor so much so that victims soon became the victimizers. Both at home and abroad, we hated one another. Such ardent hatred and derisions still linger (I reckon that due recognition ought to be given the Ellen Johnson Sirleaf Administration for unprecedented efforts made in addressing some of the conditions that mired previous regimes-a discussion which is beyond the scope of this article).
Liberian communities in the diaspora would not cooperate with one another. We mushroomed multiple versions of the same community organizations and often, in our disdain for ourselves, urged those whom we needed most to help our communities not to work with us simply because we did not like our leaders and vice versa. All the while, back home, we were busy decimating our country to near nothingness. Regardless of where we were, be it London, New York, the DMV (DC, Maryland, & Virginia areas), Minneapolis or Southwest Philadelphia, we simply were too abused and incohesive as a people to realize how much we were tearing ourselves apart.
Hence, we are where we are. We are faced with picking up the pieces—pieces which only Liberians can truly pick up, themselves. There is no gainsaying that this requires a renewed compassion to which we are unaccustomed for we lack the collective will. If we can go by the celebrated author on development, David Dollar, the absence of collective success is collective action failure—we cannot afford to remain blinded to this fact.
A nation cannot develop, modernize and attain economic and social success when it is practically a ‘welfare state’, its sons and daughters competing to live off of what they do not grow, make nor manufacture—branded often as an incompetent rent seeking people. The patronage shenanigans must end.
Regional and International Interventions
The Economic Community of West African States(ECOWAS), the African Union, the United States of America through its Agency for International Development (USAID), the European Union, the United Nations Mission in Liberia (UNMIL, and the United Nations itself), all have invested in Liberia. They have a stake in Liberia’s future.
They stepped up and forward, particularly ECOWAS with its unprecedented military quick think during the early days of the Liberian Civil War, which amount to an act of self-annihilation. They stood for Liberia. They are still here. They are not our enemies now as they keep reminding us to remember from whence we have come—to think more importantly about where we want to go in this 21st Century, as a people. That we are so far behind because of our accidents of history.
These donors and international friends have invested millions of their tax payers’ dollars in the standing up and improving the very rule of law institutions which are now seemingly working. They cannot now be seen as undermining Liberians’ understanding of the rule of law. That is not what we are reading. If anything, we read that they are saying, stick with the rule of law—in good faith. Go to elections; do not be afraid to compete against each other, albeit, in a civil manner. Conduct yourselves in good deportment. Be transparent, fair, objective, and sincere because no one Liberian is more Liberian than the other.
No matter how long it takes, we now see a reset of respect for Liberia’s democratic institutions. Just recently, it was unimaginable to be fooling around with courts, hearing officers and the likes. Unlike earlier periods in our history, we are NOT running to the streets; burning cars, hurting and killing ourselves over infinitesimal disagreements—what a feat! For Liberians to now see rule of law as a better way to seek redress is not a small beer.
We must work to maintain this reset of the rule of law in such a way that ensures the days when the press was not free are gone for good. We must make sure that there is no return of the days when the constitutional rights to freedom of assembly was non-existent; when the mere act of political association was a crime. What we read is that they are saying, do not wittingly stall in bad faith. That rumors of an interim government because of a potential self-orchestrated constitutional crisis does not portend well for Liberia. Democracy does, they say.
Conversely, the Liberian adage goes, “we talk so and talk so”. African elders tell us, “the child who does not allow its mother to sleep invariably does not sleep itself.” Just as our international friends hold us to high-standards, so too they must not meddle by picking sides. Liberia belongs to all Liberians. Anyone who eventually emerges as Liberia’s next leader must be chosen by the will and desire of Liberians themselves—not through some machinations. We must remember that if we undermine peace in our country, we ourselves will not be at peace, just like the child who does not allow its mother to sleep will itself not sleep.
After the Dust settles—likely scenarios
Lest I remind you, Liberia is a Republican State. Our form of government is state centric, yet liberal. For example, we saw extra constitutional [sovereignty] arrangements during state transition to bring peace after the civil conflict, which the (1986) constitution did not envisage. So too, a scenario could arise where we would have to do something outside the law, if we do not move quickly to meet the constitutional inauguration deadline (the 3rd working Monday) or January 22, 2018.
Everyone has reasons to be nervous because time is of the essence. Constitutional experts tell us, the language of Article 64 is plain, simple and clear. It does not supplant a smooth transfer of power—the framers’ intent was that we would be a “reasonable” people, who would hold elections in reasonable enough time as prescribed in the Constitution to ensure a seamless transition, averting an unnecessary constitutional crisis.
The language of Article 64 states, “Whenever the office of the President and of the Vice-President shall become vacant by reason of removal, death, resignation, inability or other disability of the President and Vice-President, the Speaker of the House of Representatives shall be sworn in as Acting President until the holding of elections to fill the vacancies so created. Should the Speaker be legally incapable or otherwise unable to assume the office of Acting President, then the same shall devolve in order upon the Deputy speaker and members of the Cabinet in the order of precedence as established by law. The Elections Commission shall within ninety days conduct elections for a new President and a new Vice-President.” (LBR Const Art 64, 1986).
If we wittingly stall, none of these would suffice as the Constitution would be moot in this instance because, there would have been no president, neither Vice President, nor a Speaker of the House of Representatives. None, whatsoever—not a president-elect to be sworn in nor a sitting president. Even the 54th Legislature would still not be seated, yet. Succession will not devolve.
Simply, the constitutional term would have elapsed. There would be no going down an ascension list to the President Pro Tempore or a Cabinet Minister because the law does not provide for that, under the circumstances.
What one imagines thereafter would be totally unconstitutional. “The people could acquiesce and allow a superficial arrangement because the country must move on, but any such arrangements outside the Constitution, would be illegal,” said one constitutional law Professor at the Louis Arthur Grimes School of Law, University of Liberia.
Promote the Dividends of Peace Over Violence
No one Liberian should threaten the very peace of our country under the guise of fighting for democratic principle. Kofi Annan, former UN Secretary General calls it, “larger leadership”. Larger leadership is a visionary leadership which is larger than oneself. Any leader who does not recognize that an opportunity to lead one’s people is a sacrosanct privilege and an honor, but not a right, must be disabused of such shortsightedness. One must provide mega, magnanimous, wholesome, and selfless leadership to the Liberian people. To do so means promoting the dividends of peace over overt violence, and over self-interest.
The fact that Liberians did not take to the streets; engage in violence over the elections, but allowed their state institutions to work, despite the acrimonious and contentious nature of their differences, speaks volumes. The rule of law is now reset. The rule of law and respect for constituted authorities is now a thing in Liberia, too. Our disagreements over alleged election imperfections did not relapse in chaos. Liberians are so patiently waiting for their ‘system’ to work so that matters are settled not by violence but by due process of law.
About the author:
Ahmed Sirleaf consults on international development, government and policy issues. Sirleaf has advised political candidates in elections in the United States, Ghana, Nigeria, and Liberia. He finished school at Hamline University in Saint Paul, Minnesota, USA, where he earned his BA in Legal Studies. He has a Masters in international Law and the Settlement of Dispute at the United Nations mandated University for Peace in San Jose, Costa Rica, and MPA (public affairs) at the Hubert H. Humphrey School of Public Affairs, University of Minnesota, Twin Cities. He adjunct teaches international relations, defense & security, leadership & governance at the Kofi Annan Institute for Conflict Transformation, University of Liberia’s Graduate School. He can be reached at: [email protected] or +(231) (0)778-629-332 or +(231) (0)880-365-457.