Liberia Must Joggle More Than One Ball To Avert A Potential Constitutional/Governance Crisis

Monrovia, 22 September 2014.

As Liberia concentrates all its energies and resources, with the help of its international partners and friends to batter the Ebola Virus Disease, which it must – it must also convene a special election before year’s end in order to avert a potential governance/constitutional crisis. Here is why.

In January 2015[i]when the President meets with the Joint House of Representative and Senate to deliver her next State of the Republic’s Address, in the absence of an election before year’s end, 15 or 50% of the seats in the Senate will be vacant. Liberia has a bicameral legislature, a lower house called the House of Representatives comprising 73 elected members and an upper House called the Senate, comprising 30 elected members. Bills and budget proposals must pass the approval of both houses; most key appointments of the President must meet Senate approval.

Article 46 of the Constitution of Liberia staggers the different tenure of the 30 Senators in the interest of ‘legislative continuity[ii]’. As a result, there are two categories of Senators. Those in the second category serve a first term of six years, and the Senators in the first category serve a term of nine years. Thereafter, all Senators are elected to serve a term of nine years. The categorizations into first and second categories occur only during the starting elections.

Following the end of the civil wars, the starting elections were held in 2005. In 2011, elections were held for the vacated seats of the 15 senators in the second category. The tenure of the Senators in the first category will expire at year end 2014, when they shall have exhausted their nine-year term.

It is in Article 33 of the Constitution that there lies the potential for a governance/constitutional crisis. It requires ‘a simple majority of each house shall constitute a quorum for the transaction of business[iii]’. In the absence of elections before year end, the remaining 15 Senators in the Senate will not be enough to attain the simple majority for the transaction of business.

But there is a State of Emergency imposed, won’t this provide the basis for the postponement of the elections? The answer to this question lies in Article 87 (a) of the Constitution which provides limits to emergency powers: ‘emergency powers do not include the power to suspend or abrogate the Constitution, dissolve the Legislature, or suspend or dismiss the Judiciary; and no constitutional amendment shall be promulgated during a state of emergency[iv]’.

Civil Society leaders in consultation with the National Elections Commission, the authority charged with the organization of elections have raised concern that ‘elections date is set by the Constitution of Liberia and adjusting it would have legal and Constitutional implications[v].’ This concern by the Civil Society leaders is in keeping with Article 83 (a) of the Constitution of Liberia which provides that  ‘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’.

The specificity in dates as outlined under Article 83 (a) of the Constitution governs the notion of general elections as defined under Section 1.2 (c) of the New Elections Law of Liberia ‘any election for the offices of the President, Vice President, Senators and Representatives held every six (6) years’.The elections of the 15 soon-to-be vacated Senate seats is classified as ‘Special Elections’ which includes elections pursuant to Article 64 (vacancy caused in the Presidency or Vice Presidency), Article 91 (constitutional referendum) and ‘to include election to fill the vacancies created for the election of fifty percent of the members of the Senate[vi]’. Special elections have been held on dates other than as prescribed under Article 83 (a). Therefore, there exists a wiggle room for the Elections Commission to convene the elections with a deadline veering towards year end.

Yet time is running out. Events have outpaced the initial timetable proffered by the elections authority which devoted 12 August to 12 October as campaign period and 14 October 2014 as Elections Day. The NEC has written both houses of the Legislature and the President to inform them that due to the ‘contagious Ebola Virus Disease, the Commission will not only be inhibited in fulfilling its mandate to recruit, but also to undertake the training of more than 25,000 temporary polling staff for deployment in the 4,701 polling Centres across the country[vii]’. As a result, NEC proposes a series of consultations to enable the authority set a new timeline for ‘conducting the Election any time before January 15, 2015 in order to meet the constitutional date for the seating of senators to be elected[viii]’

Liberia will need leadership of all aisles of its political divide, including independent civil society in finding a solution to avert a potential constitutional crisis. The National Elections Commission must develop a contingency plan for the holding of elections. Such plan should foresee for example the possibility to hold limited number of elections in geographical regions of the country least affected by the Ebola Virus Disease, so that at least the minimal threshold under Article 33 for convening the Senate can be met. In any event the new notion of ‘Ebola politics,’ should be avoided through inter-party code-of-conduct. Ebola politicking should be the new violence that should be removed from electioneering. This is important so that politicians on all sides do not use Ebola response failure or success to their different political advantage. This last plea is one derived not from legal consideration, but a moral one.

The opinion expressed here takes full cognition of Liberia’s Constitutional order, in particular the principle dealing with the separation of power. As such, it is the country’s Supreme Court that exists as the final arbiter in situations of contested interpretation of the letter and or spirit of the constitution.

Charles Lawrence lives and works in Liberia and writes in his personal capacity.

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[i] Article 58 of the 1986 Constitution of the Republic of Liberia requires on the fourth working Monday in January of each year, for the President to address both Houses of the Legislature on the State of the Republic.

[ii]The 1986 Constitution of the Republic of Liberia, Article 46

[iii] Ibid, Article 33

[iv] Ibid, Article 83 (a)

[v] National Elections Commission, ’In the Wake of Ebola Outbreak, NEC holds Consultations with Civil Society Organizations on Special Senatorial Elections’ www.necliberia.org/elecal.php

[vi] Section 1.2 (f) of New Elections Law approved 1986, amended January 29, 2003 and December 23, 2003 incorporated and published by the National Elections Commission of Liberia.

[vii]Front Page Africa, ’Liberia’s Elections Commission Committed to Senate Vote’  16 September 2014, www.frontpageafricaonline.com  

[viii] Ibid