The Liberian Constitution Does Not Guarantee Tenure Completion to Anyone


In recent weeks there have been a huge debate in Liberia on whether it is constitutional for Liberians to demand the resignation of their president before his tenure runs out. The supporters of the president have succeeded in cowing the stepdown proponents in backtracking on their calls on constitutional grounds.

Lamii Kpargoi, Esq, [email protected], Contributing Writer

The truth, though, is that the Liberian Constitution says nothing about elected officials being guaranteed the completion of their tenures. The only guarantee anticipated for the completion of one’s tenure is inherent in the prudential conducts of elected officials that stand up to legal and moral scrutiny, which ensures the “safety and happiness” of the people.

When the Constitution was crafted in 1847 and revised in 1986, it respectively included Section 2nd and Article 1. The 1847 provision at Section 2nd states that “All power is inherent in the people; all free governments are instituted by their authority and for their benefit and they have the right to alter and reform the same when their safety and happiness require it.” The phrasing of this part of the Constitution uses mandatory words which impose duties on the population. There is nothing permissive about these duties that make them discretional.

When the Constitution was revised in 1986, Section 2nd of the 1847 version was maintained verbatim in Article 1 with the addition of the following sentence: “In order to ensure democratic government which responds to the wishes of the governed, the people shall have the right at such period, and in such manner as provided for under this Constitution, to cause their public servants to leave office and to fill vacancies by regular elections and appointments.”

The prepositional phrase “to cause their public servants to leave office and to fill vacancies”, as used in Article 1, means to give rise to an action. What is this action the Constitution gives the people the power to give rise to? Impeachment for removal? Could it be demonstration for the purpose of forcing resignation? It is certainly not limited to elections.

Some people think that the addition to Section 2nd of the 1847 version means that the framers intended to limit the means through which elected officials of the Liberian Government can be made to leave power by the population to only elections. This interpretation of Article 1 is wrong.

From a textualist point of view, the inclusion of the word “appointments” at the end of Article 1 shows that the second sentence of the Article does not limit the people’s rights to alter their government only by regular elections. The people do not typically appoint elected officials.

It would be a distortion of democracy to limit the people’s rights to alter their government to the mere election day exercise that takes place every six or so years even as they face the worse peacetime economic pinch in the history of the country. Being elected for six years does not delegitimize the power and the rights of the people to demand your early exit when their wellbeing and happiness are at stake. Will the people not be guilty of passive complacency if they were to continue with a leadership that routinely urinates upon the Constitution and the principles of good governance on the basis that said leadership was elected for a fixed term?

Protest is a cardinal ingredient in any democratic culture. Engaging in direct action by taking to the streets is the only proactive mechanism available to the people to compel good governance, prevent a catastrophe and or checkmate a potential dictatorship.

Appointment is a different concept as compared to elections. The use of the conjunction “and” between elections and appointments in Article 1 simply shows that the framers meant that both be construed as having separate meanings and conferring different powers.

The second section of Article 1 was likely tagged on to emphasize that the right of the people to vote for their leaders is sacrosanct. It was meant to forestall the possibility of a nefarious cancellation of elections at some point in the future – a situation which is likely to happen in October 2020 when mid-term senatorial elections are constitutionally scheduled but will likely not happen because the government will claim that it lacks the funding to hold them.

It will be interesting to read what the current Liberian Supreme Court will rule when a case regarding the holding of those elections inevitably come before it next year.

Further, Article 38 gives each house of the Liberian Legislature the power to expel any of its members for cause. Article 43 gives the Legislature the power to remove the president and vice president from office by impeachment. These show that the Liberian Constitution does not guarantee that anyone will remain in office for the full length of their tenure regardless of how they conduct themselves.

The Current Legal Context

There are people currently arguing that the Liberian Constitution should be respected at all cost by allowing Mr. Weah to serve out the remainder of his term unimpeded. This is a flawed perception, because the Constitution gives no elected official a blank check to do as they please without suffering any jeopardy and it definitely does not support the lowering of moral and legal standards by elected officials.

In CDC et al v Executive Branch LRSC 5, decided on 11 January 2008, the Supreme Court said that “It is a principle of constitutional law that what a constitution does not grant, it withholds.” The Court went to quote 16 Am Jur 2d Constitutional Law, § 108 that “…the expression of one thing in a constitution may necessarily involve the exclusion of other things not expressed. Thus, when a constitutional provision assumes to point out certain exceptions to one of its own general rules, a court may not say that other exceptions were intended though not mentioned….”

Article 1 of the current Constitution not only gives powers to the population which involve electing people to occupy certain offices, it also gives the people the power to remove such officials where their “safety and happiness” so require.

There are people currently arguing that the Liberian Constitution should be respected at all cost by allowing Mr. Weah to serve out the remainder of his term unimpeded. This is a flawed perception, because the Constitution gives no elected official a blank check to do as they please without suffering any jeopardy and it definitely does not support the lowering of moral and legal standards by elected officials.

The current Constitution allows people elected to the offices of president, vice president and members of the House of Representatives to serve tenures of six years. It allows those elected as senators to serve a nine-year tenure. Though it has these time frames stated for each of these positions, nowhere does it say that someone elected to any of those tenures cannot be made to leave office prematurely.

Following the Supreme Court’s logic in CDC v Executive Branch, the Constitution does not in any way guarantee an unaborted tenure to any elected official in Liberia, hence to term calls for an elected official to leave office early as unconstitutional is a flawed and uninformed reading of the law.

The framers were clearly concerned about putting a check on the excesses of people elected to power and the possible inclination for such people to subvert the Constitution. So, they put in a clear safeguard by giving the people the ultimate power over their political leaders. All power is inherent within the people and all free government is instituted by their authority is the most powerful provision in the Liberian Constitution and we all must fight to give it its true meaning.

The Way Forward

Since the Constitution was voted in to force by popular referendum in 1985, many of its provisions have not been given full life by the country’s legislature. Though Article 1 does not directly say this, it was the responsibility of the legislature over the last 33 years to enact laws that will further clarify how the Article 1 powers may be exercised.

The legislature should have enacted a recall legislation for all elected offices. This recall legislation would have laid out clear measures and procedures that should be met in order to cause an elected official to be forced to go back to early elections or exit office.

The failure of the legislature to enact such a legislation clearly operates in favor of the people and has left the population with no option but to use mass citizen action to arrive at the same result. The Liberian Legislature still has time to railroad a bill through the two chambers to establish a recall standard. Doing that would serve as a means to forestall street demonstrations if people are dissatisfied with those in power.

With such a legislation, the basis for exercising Article 1 rights will not be through street demonstrations. It will be through the collection of signatures from registered voters across the country to cause a public official to relinquish his office and submit himself to the renewal of his mandate.

If such a law currently existed in Liberia, all the tension that pervades the country would have been avoided. The folks involved in the Council of Patriots would be canvassing the country for the signatures of registered voters to push Mr. Weah into early elections. They would not be calling mass protest to request his resignation from office.

If such a law existed, Mr. Weah would have been a lot more circumspect in the way he ran the county. He would have been a lot more cautious in his speedy, unexplained acquisition of personal wealth. Mr. Weah and his officials would have been a lot more cautious in going to play football on the daily basis instead of tackling the myriad of problems the country faced during his first few months in power.

Liberia is at a major crossroad when it comes to its continued democratic development. The desire of the Liberian people to exercise their Article 17 rights to freely assemble for the purpose of further exercising their right under Article 1 to alter and reform the present government because their safety and happiness so required it is a watershed moment in the country’s history.

Depending on how this process pans out, the history of governance in Liberia is going to be rewritten for generations to come. Never again will a government come to power and think that because it has a tenure it can run the country as it pleases unchallenged.

Lamii Kpargoi is a Liberian lawyer who currently pursues postgraduate studies in Labor Law and Corporate Governance at the University of Bristol in the United Kingdom as a Chevening Scholar. Mr. Kpargoi is a keen watcher of Liberian legal and political affairs. He is a 2015/16 recipient of the coveted Reagan-Fascell Democracy Fellowship. He is also a 2011 US State Department Community Solutions Fellow. He can be reached on twitter @lkpargoi.