Teetering on Constitutional Crisis in Liberia: Election Postponement a Dangerous Gamble
In recent weeks there have been indications that the Liberian government is working actively to postpone this year’s midterm (as per the current arrangement it always happens in the middle of the terms of the president and House of Reps) senate elections. Those elections will see half of the country’s senate vying for the renewal of their mandates. The speculation is that the election will be put back a year. Further to this discussion is the decision to also postpone the 2023 presidential and legislative elections by a year to 2024.
By Lamii Kpargoi, Contributor
Before submitting the legal argument on why the postponement of these elections would be illegal and a total violation of the Liberian Constitution, let me state for the record that these maneuvers are extremely dangerous undertakings that could eventually spell disaster for constitutional rule in the country.
In 2014 the government of Mrs. Ellen Sirleaf postponed elections by two months from October to December under the pretext that conditions were not suitable for the mid-term elections to have happened because of the Ebola outbreak at the time. Mrs. Sirleaf and her people violated the Constitution then, and any attempt to use her model now will be no less a violation.
The Concept of Constitutional Authority
Obviously, the Liberian system was patterned after the American system in terms of the governmental structure of having three co-equal branches and granting universal suffrage to the people on electing those who run the legislative and executive branches encased in a constitutional framework. A curious footnote to this is that the initial Liberian constitutional experiment was one based on segregation and disenfranchisement of the majority. Before the creation of the United States of America in 1776, constitutional forms of government, as we today know it, did not exist. The governments at that time were either monarchies or theocracies. However, the coming into being of the American constitutional republic changed all of that.
While no one branch, in this system, has absolute control over the running of the state, the Legislature is constitutionally authorized to monitor the activities of the other two branches. Though Liberian legislators do not seem to know this, the Legislature also has a veto over how the national resources are allocated and spent. Above these branches of government are the people who carry the ultimate veto over everything.
The country’s judiciary is responsible to interpret the laws and decide whether the Constitution has not been followed. It has no authority to suspend any part of the Constitution, though it may declare a statute, in whole or in parts, unconstitutional. The most recent exercise of this constitutional prerogative was when the Liberian Supreme Court, in the case CDC et al v Executive Branch  LRSC 5 severely setback the country’s electoral democratic process by striking down the parts of all statutes that required the election of municipal officials.
No Room for Electoral Date Changes in the Constitution
In 2014, Mrs. Sirleaf and her government decided that they would postpone the midterm senatorial election scheduled for that year because of the outbreak of Ebola in the country. Ebola is a deadly disease, but the only reason it got out of hand was because of inaction and admitted incompetence of the government. With the backing of some people who did not seriously consider the long-term implication of violating the Constitution, the elections were postponed from October to December 2014. The country recoiled from the cliff edge of constitutional crisis because the date change did not reach the expiration date of the tenures of the senate seats the elections were meant to fill.
Contrary to what Mrs. Sirleaf and her government did in 2014, no branch of the Liberian government has the legal authority to suspend or ignore the implementation of any part of the Constitution. The only room for constitutional changes is via two-thirds of Liberians voting in a referendum to make the change which will not entail suspending a provision.
The Constitution is the instrument through which all elected governments in Liberia derive their legitimacy. It provides a range of protections to the people who govern if their authority is derived from and maintained under it. All those protections vanish when someone usurps the constitutional order. After their coup of April 1980, the People’s Redemption Council faced this dilemma in the lead up to the restoration of constitutional rule. Their inclusion of an amnesty clause (Article 97) in the 1986 Constitution was their way of protecting themselves from possible criminal charges for the coup. Whoever advised them to do this appreciated the predicament those soldiers faced for their coup.
There is a good reason why the Constitution does not provide for the postponement of elections. This reason, simply put, is that the framers of our Constitution recognized that Liberia has had a history of autocracy and leaving room for the constitutional process to be tinkered with was a dangerous recipe for disaster.
When Mr. William V. S. Tubman was inaugurated president in 1944, the Constitution at the time stated that the president was entitled to serve just one 8-year term. His predecessor had served one 8-year term under the same constitutional arrangement. When Mr. Tubman’s one 8-year was nearing its end, he realized that he was not willing to exit the stage as he should. So, he orchestrated a change to the Constitution adding that the occupant of the office was eligible to as many subsequent 4-year terms as they liked. He went on to serve 19 further years under that arrangement until he died in 1971.
The relevant parts of the new Section 1st of Article III of the 1847 Constitution as Tubman caused it to be changed read as follows: “The Supreme Executive Power shall be vested in a President who shall be elected by the people and shall hold office for a term of eight years. No President may be elected for two consecutive terms of eight years, but should a majority of the ballots cast at a second or any other succeeding election by all of the electors voting thereat elect him, his second or any other succeeding term of office shall be for four years.”
Bearing this history in mind, when the Constitution was redrawn in 1986, it included language at Article 50 that directly restricted the term of the president to two terms of six years by stating succinctly that “No person shall serve as President for more than two terms.” This constitutional measure made it impossible for any future Tubman-styled shenanigan to reoccur. Furthermore, Article 93 of the Constitution imposes an additional rigid measure to ensure that the incumbent president who presides over the amendment of the presidential term does not benefit from such change. The framers could not have been any clearer about NOT repeating the Tubman-era debacle.
The framers of the current Liberian Constitution and the people of the country were quite clear in their inclusion of very strict measures to make it difficult for people in office to tinker with the document for their selfish political motives. That is the reason why, just like the rigid provisions on presidential term limits, there is no room for postponement of elections in the Liberian Constitution. Article 83(a) of the text uses mandatory language and leaves no room for ambiguity: “Voting for the President, Vice President, members of the Senate and members of the House of Representatives shall be conducted throughout the Republic on the second Tuesday in October of each election year.” All lawyers and anyone with commonsense will agree that this provision leaves no room for changing the election date.
It does not say “may” or use any other conditional language. The Constitution mandates that there “shall” be elections on a fixed day in a fixed month and in a fixed year. The framers attached a high degree of importance to the holding of elections and thus decided to leave no wiggle room for undemocratic elements who might want to unnecessarily prolong their time in office without the people’s consent.
What About Extraordinary Situations
Some may ask what may happen in extraordinary situations like the outbreak of war or epidemics or pandemics like the Ebola Virus Disease or Coronavirus. These are legitimate concerns, but they are not good enough reasons to postpone something that the Constitution mandates and which is also essential to ensuring the legitimacy of the governors.
It is worth noting that the initial reason behind calls for postponement of the Liberian elections had nothing to do with the current Coronavirus situation. Those calls for postponement all centered on the country not being able to fund the process. As ridiculous as that claim seems, the government was running around with it without realizing that its credibility was being undermined by saying that it was incapable of doing its work by failing to properly prioritize the expenditure of country’s resources.
The no-money excuse is not only unpersuasive but utterly ridiculous because, the funding of elections is a constitutionally mandated expenditure that should be planned far in advance. Secondly, the “no-money” argument is an illogical one in a country where leaders who had no money before taking office can in a few short months build mansions. For instance, if money can be found to construct roads which are not a constitutionally mandated responsibility, why can money not be found to hold elections which are required by the Constitution? There is no violation of the Constitution when roads are not construction, but there is a serious violation when elections are not held as required.
In the United States of America after which our governance is patterned, federal elections have never been postponed in that country’s 243 years of existence. This is the situation even though the US fought a very bloody civil war from 1861 – 1865; fought the First World War between 1914 and 1918; went through the great influenza pandemic starting in 1918; and fought the Second World War from 1939 to 1944. The country did not, at any of those points, cancel its electoral process on account of any of those calamities. The US is also not likely to postpone its elections in November 2020 even though it is the worst hit by the ongoing Coronavirus pandemic.
Understandably, people will be worried about exposing others to electoral politics during a major healthcare crisis. That is a legitimate concern, but that concern is only legitimate if the crucial question concerning whether a safer mode of conducting the electoral process cannot be used to ensure that the voting happens. Those who support an outright postponement of the elections say nothing sensible about why it cannot be held other than the fact that there is a healthcare problem. There is a healthcare problem, but there are ways that elections can be held without exacerbating the health situation.
There could be a ban on Liberian-styled public election rallies that see people parading the streets. The Public Health Law could be used to restrict all campaigning to posting of billboards, distribution of flyers and radio/TV and social media messaging. On election day itself, there can be more polling centers to avoid queuing and even where there is the possibility of queuing, appropriate distancing measures could be put in place to limit the interaction of members of the public who go out to vote. The government might even want to invest in voting technologies that will make the electoral process more innovative and efficient. For example, similar measures were put in place during the nationwide general election held in South Korea amid COVID-19 on April 15, 2020.
Likely Scenarios if Elections are not Held
A lot of the people, especially elements in the government, who are clamoring for a postponement of elections wrongly think that they would be able to legally hold their offices if elections were not held and their terms of office expire. Others think that it is an opportunity for them to demand and therefore participate in a transitional government arrangement. Both perceptions are dangerous and must be avoided! These groups have no idea what they are talking about. They have certainly not informed themselves of the legal huddles that stand in their way. None of them has taken into consideration the nightmarish possibilities that might exist if what they are contemplating happens, starting with midterm elections not being held this year and if general elections are not held in 2023.
If the midterm senatorial elections are not held this year and the terms of the incumbents expire, it will mean that the Senate will be run by only 15 senators, which will mean that absent the vice president, no legislative business will be possible in the senate. If any of the remaining senators become incapacitated, the entire senate will be thrown into disuse in such a situation. No senator with an expire term can legally remain working in the senate. That group will have to all go home until they can renew their mandates at the ballot box.
With only 15 senators remaining, Article 43 of the Constitution will not function and possibility of impeaching any official that is subject to impeachment will be off the table as the senate will not have the required numbers to constitutionally perform the task. Judges, the president and other senators will not have to worry about removal from office by impeachment or expulsion. While in the short term that may not seem like a problem, it will be in the long-term.
What happens if the 2023 elections are deferred by a year as is being rumored? If that happens, all members of the House of Representatives, the President and Vice President, and the remaining 15 members of the Senate would also have torelinquish their offices in January 2024 when their terms expire. In such a scenario, there will be no one available in the constitutional (Article 64) and statutory lines of successions to take over the reins of the executive branch.
If this scenario plays out, will it mean that the country will not have anyone to head the executive branch of government? Not likely. Because the President, Vice President and their appointed officials will all have no legal mandate to remain in office, in such a situation, the most senior civil servant at the Ministry of Foreign Affairs likely becomes the acting president provided that that person meets the other eligibility criteria like age.
But just in case the midterm senatorial elections are held sometime before 2023, the possibility of a civil servant ascending to the office of president will be avoided. In that situation whoever is the president pro-tempore of the Senate takes over the presidency, if the person is not one of the people whose tenure will have expired in January 2024. Though not impactful on the succession issue, the issue of the length of the tenure of those senators will be another potential issue as an election outside the 2020 time frame would throw the concept of legislative continuity (Article 46) into turmoil and make it difficult to realign.
If the mid-term elections due this year are not held for senators and the election is put back a year, for example, the country will then be put in a situation whereby a gap year will be created where there will be only 15 senators until some sort of change can be made to readjust the terms of elected officials so that the concept of legislative continuity can be restored. Senators are elected for 9 years as the system currently stands. It will be unconstitutional for anyone to try to shorten the term.
The leaders of the current government and sadly those of the country’s opposition do not seem to appreciate the magnitude of the decision to postpone elections and that there is no legal authority for doing so. Those in power do not know that it means that their legitimacy is called in to question and that there will be no legal basis for any of them to hold office without elections being held. Right now, all those who were elected to the senate in 2011 or those completing the terms of people who were elected at that time should take heed of this situation and push for the holding of elections before their tenures expire. If elections are not held, none of those 15 senators can legally retain their seats.
Let both the government and its opposition interlocutors take heed of the fact that the failure to hold these elections will signal a total reversal of what little progress the country has made since its transition to democracy in January 2016. Such a move will show that the blood and treasure expended by the international community to restore peace and democracy to the country were wasted.
For a society, especially one like Liberia to function properly and put behind all its demons, the rule of and by law must be the minimum standard. Those who take on the mantle of leadership must ensure that they remain within the strictures that the laws impose upon them. Their failure to do this is a recipe for disaster. All Liberian professionals, regardless of their political affiliation must join and demand that the government holds the elections as scheduled.