April 11, 2020
Hon. Eugene Nagbe
Ministry of Information, Culture and Tourism
Dear Minister Nagbe:
A number of Liberians, including myself, are concerned about the successful management of the National State of Emergency (NSOE) declared by President George Weah, which came into effect at 11:59 P.M., April 10, 2020.
I submit that the President has taken the appropriate measures required of him by Articles 85, 86, 87 and 88 of the Liberian Constitution. However, there appears to be some confusion regarding sequencing and timing for compliance with procedures the Legislature must follow in performing its constitutional duties.
The concern is that the State of Emergency will automatically be revoked without effect if, in seventy-two (72) hours of receiving formal notice from the President regarding the national state of emergency the 54th Legislature should fail to pass a Joint resolution, stating in no uncertain language that the reasons for declaring the Emergency are justified, and that the measures taken by the President are appropriate. Should this occur, it could result in the death of thousands of Liberians and many foreign nationals.
Permit me, Mr. Minister, as a civic duty, to provide the following points of advice as to how we ought to navigate the constitutional process. I make these points after reading the explanation you provided recently in a press briefing to allay the concerns of those who are anxious to know whether the Legislature has not yet acted as required by Article 88 of the Constitution.
My decision to write this letter is the result of consultations with constitutional scholars, as well as present and former Lawmakers of Liberia. This is not intended to provoke a debate if what I have presented is incorrect. On the contrary, I am inclined to support totally, whatever protocol is constitutionally appropriate.
To ensure successful, constitutional management of the Emergency, we must strictly adhere to the letter and spirit of the Constitution, without which corridors could be opened for illegal and inappropriate behavior, as well as missteps.
Point-1: I believe our national health experts in conjunction with the World Health Organization (WHO) has advised the President that imposition of a national state of emergency is necessary to contain the spread of the coronavirus in Liberia. This means that the matter is completely outside of politics.
Point-2: It is obvious the magnitude and scope of the health experts’ advice is such that the President has found it compelling to invoke Chapter IX of the Constitution. In his declaration speech, the President informed the nation that he had complied with Article 86(a). However, this pre-announcement consultation cannot be considered or construed as a formal notice to the Legislature.
Point-3: The confusion, in part, is about whether the Legislature had met or failed to meet immediately following the President’s declaration of the state of emergency, because in his speech the President said that the Legislature would convene a joint session on Thursday, April 9, 2020. Of course, this was not possible because legislators were on their statutory Easter Break. But, Article 86(b) states that “…Where the Legislature is not in session, it must be convened immediately in special session.”
Mr. Minister, according to experts, the pre-declaration consultations by the President, required by Article 86(a) do not qualify as formal notice to the Legislature, laying the facts and circumstances leading to the declaration. Further, the Legislature could not have been formally notified of the declaration prior to the effective date of the measures pronounced. In fact, the notice from the Executive has to be dated not later than seven days after the date on which the emergency measures became effective; in this instance, 11:59PM. Friday, April 10, 2020.
Furthermore, we must note that a Legislative Joint Resolution in support of the President’s declaration of the state of emergency should be accompanied by appropriate funding for management of the emergency. Perhaps, a few days delay, not to exceed seven days following the President’s pronouncement, might enable the Legislature to debate the amount of appropriation for the situation.
It would be perfectly constitutional if the President were to formally serve the notice on the sixth or seventh day (April 16 or 17) after his speech. And, the Legislators could take another three days (72 hours), as provided by law, to consider passage of the Joint Resolution. This means, within the context of the Constitution, legislative action could be forthcoming on April 19th or 20th, assuming the President has not already served the formal notice. This may provide clarity as to the timeline for the execution of the Joint Resolution. It also cannot be overstated that a constitutional default could complicate the emergency crisis the country now faces.
As a means of ending the ongoing debate about notice to the Legislature, Mr. Minister, it might be prudent for your office to publicly disclose (without necessarily displaying the communication) the date of the formal submission of the President’s declaration, so that the public will have a better understanding of the process.
We are confident that members of the 54th Legislature will perform their duty in compliance with the Constitution, and will cooperate with the President given the severity of the COVID-19 pandemic and its potentially devastating impact on the Liberian people.
United People’s Party