GC’s Recommendation Is Cogent, But Can NEC Act Alone?

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The Governance Commission (GC) has recommended to the National Elections Commission (NEC) that it declare the Code of Conduct “inapplicable.”

In its Annual Report to President Ellen Johnson Sirleaf, the GC strongly recommended that NEC make this declaration because of “the doubts about the constitutionality of” the Code of Conduct.

The GC made reference to Part V, Sections 5.1 and 5.2 of the Code of Conduct which seeks to exclude from candidacy high officials of the Executive Branch of government who did not resign from their positions at least three years prior to the holding of elections.

“The provision should be considered inapplicable to the presidential and legislative elections in the same manner and spirit that the 10-year constitutional provision was considered inapplicable to the 2005 and 2011 elections,” the GC told NEC.

This is exactly the point the Daily Observer raised in its Editorial of October 15, 2015, when the Code of Conduct was submitted to the Legislature for enactment. But the Executive Branch, headed by President Sirleaf, and the Legislature ignored the newspaper’s position as well as similar reservations by several civil society organizations. Both Branches proceeded to enact the Code of Conduct into Law.

In its recommendation to NEC, the GC recalled that the 10-year clause was declared “inapplicable”; and that paved the way for Ellen’s election as President of Liberia. The question on everyone’s mind is, how could Ellen repeat, 10 years later—2005-2015—Head of State Doe’s mistake, born of selfishness, fear and corruption—interfering with the constitutional process—to block any powerful politician who had lived in exile since the 1980 coup from contesting the 1985 elections.

Oh how soon do we humans forget!

Now the GC, which is sworn to uphold “good governance” in Liberia, has hinted that, just as the Daily Observer said over two years ago, the Code of Conduct may be unconstitutional because the Liberian Constitution clearly defines who should run for any elective office, including the presidency.

The problem we see in the GC’s recommendation to NEC relates to whether NEC has the authority to declare the Code of Conduct “inapplicable.” NEC’s authority consists in planning, preparing and executing elections; not so much as to determine which legislative act is applicable to elections and which is not. That, it seems to us—and we have stated this in earlier Editorials—is a judicial function, particularly that of the Supreme Court.

The Supreme Court already has before it some cases challenging the Code of Conduct. One is Bong County Superintendent Selina Polson Mappy, who plans to contest a seat in the House of Representatives and has sought redress in the Supreme Court. There are others. But the High Court seems to be dragging its feet—why? No one knows. Is the Court waiting for the last minute to pull a stunt? Such a thing is not in the character of the Supreme Court to do—or so we hope. It is too important an institution to do such.

We are, therefore, appealing to the Chief Justice and Justices of the Supreme Court to do their duty by making a declaration on the Code of Conduct. It seems to us that there is only one decision the Court can make—to declare the Code of Conduct unconstitutional.

The High Court is not clothed with the authority to change the Constitution, only to interpret it.

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