Liberia: Constitutional Amendment Likely Impossible as Referendum Results Show Constitutional Two-thirds of Votes for Approval Unattainable

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MONROVIA – The December 8 Referendum has hit a dead-end – all eight propositions have failed to meet the two-thirds requirement of valid votes for each proposition from all counties, independent calculations indicate.

The National Elections Commission (NEC) has so far fully tallied the valid votes from 10 of the 15 counties and the numbers coming out show very slim chance for any of the propositions to attain the required two-thirds or 66.66 percent of the valid votes cast in the referendum.

What is even more noticeable about the referendum is the manner in which the invalid votes outnumber the valid ‘yes’ and ‘no’ votes combined in some counties.

Article 91 of the Constitution states that, “This Constitution may be amended whenever a proposal by either (1) two-thirds of the membership of both Houses of the Legislature or (2) a petition submitted to the Legislature, by not fewer than 10,000 citizens which receives the concurrence of two thirds of the membership of both Houses of the Legislature, is ratified by two-thirds of the registered voters, voting in a referendum conducted by the Elections Commission not sooner than one year after the action of the Legislature.”

However, the Supreme Court in September 2011 opined that the invalid votes shall not be included in the sum of total votes.

Section 4A.4 of the Elections Law, under Referendum results states:

“The fraction of two thirds (2/3) required for approval of a question in a referendum is calculated by dividing the number of valid votes cast in approval of the question by the total number of the valid votes cast on the question”.

The total valid votes are calculated by adding the ‘Yes’ votes to the ‘No’ votes.  Of this sum, the NEC would ascertain whether the ‘yes’ votes on each proposition reach two-thirds requirement for approval. If they do, the proposition is approved. If not, the proposition is rejected.

And because the proposition is a national election, the ‘yes’ and ‘no’ votes from the 15 counties (on each proposition) must be added together to determine whether the yes votes reach two-thirds requirement for approval. This process is done for each of the proposition.

But Larmii Kpargoi, a renowned Liberia lawyer who believes that the Supreme Court’s opinion on this provision of the Constitution has thwarted the true meaning of the Constitution opined:

“The language in the Constitution (Article 91b) is clear, but yet someone was able to convince our Supreme Court to read it differently. On the two thirds threshold for holding of a referendum, the Constitution requires that each proposition is “…ratified by two thirds of the registered voters, voting in a referendum conducted by the Elections Commission…”

“There is nowhere in that clause that even implies that the framers were bothered by whether the vote cast has to be a valid one. The voter’s intention has nothing to do with the threshold. This provision only requires an eligible voter to participate in the process by going to the poll and casting a vote. Whether the person votes yes, no, or spoils the ballot doesn’t feature in determining the threshold.

“Sometimes I really wonder where we get the people who make these kinds of decisions in our country.”

The propositions for the referendum are reduction in the tenure of representatives, shorten time for NEC to hear complaints, reduction of term of senators, dual citizenship, reduction in the term of Speaker and Deputy Speaker, reduction of the term of President and Vice President, reduction of the term of office of the office of President pro-tempore, change in the date of elections.

Constitutional Amendments Hurdles

History shows that amending the Liberian Constitution has often not been successful due to the two-thirds requirement.

The two-thirds of registered voters requirement is a very daunting task and it was glaring that the government did not give it sufficient thought or perhaps did not understand the full magnitude of the task of amendment.

In the last 12 elections conducted in Liberia’s recent history, only seven had a turnout that surpassed two-thirds of registered voters, and if these elections were referendum, to get a proposition approved, more than 90 percent of the votes must be ‘yes’ votes to attain two-thirds.

Mathematically, getting that constitutional requirement of two-thirds for any proposition is very challenging.

A government would need to limit the number of propositions and do years of thorough education of the public to get that level of buy-in as opposed to having a long list of propositions which were barely understood by the electorates.

How the Numbers Failed

Also weighing in on the results of the Referendum is a lawyer and researcher Hassan Francis Whitfield who stated, “With 10 counties (Montserrado, Lofa, Grand Bassa, Margibi, Grand Cape Mount, Maryland, Bong, Bomi, Rivercess and Rivergee) fully tallied, it appears to be very impossible that any of the propositions will meet the two-third (2/3 or 66.66%) requirement. NB: The ten counties tallied represent 2/3 of Liberia’s political subdivisions. We are left with 1/3 to go. Guess what then? The 1/3 don’t have the numbers.”

In his analysis, he stated that using the NEC formula to calculate the two-thirds, the total votes cast in the referendum (Educated Montserrado Inclusive), valid votes account for 50.94% while invalid votes account for 49.06%.

Of the total valid votes tallied by the National Elections Commission (NEC), none of the eight propositions have been able to obtain 60% of the votes thus far. At present, the highest YES Votes accumulated thus far apply to changing of the election date from October to November. As it occurs, this proposition (election date) has accumulated a total of 56.92% while reductions in the Senate and Representatives tenures have accumulated 55.18% and 55.31%, respectively. The rest of the propositions have struggled and accumulated between 50 – 55% with the least being the proposition that seeks to reduce the time the NEC has to handle electoral disputes with 50.14%. These figures put the propositions in a critical and difficult position to survive. If a single proposition must pass, it needs 66.66% (2/3).

However, reductions in the tenures of the Senate, Representatives, Senate Pro-Temp, Speaker and Deputy Speaker met the constitutional two-third threshold in a few counties to include Rivergee, and Maryland. However, those votes have made no change to the overall votes which will be used to reach a decision (pass or not). Grand Bassa, Maryland, Rivergee, Lofa and Rivercess also voted to change the election date from October to November, but the results also have no bearing on the overall result thus far.

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