analysisBy Ibrahim Al-bakri Nyei
A new constitution that sets and sustains a foundation for democratic governance and provides for a balanced distribution of power is the solution to the governance and developmental challenges of the Liberian state
Liberia's emergence from collapse to a fragile state status has been a marked achievement of the collective efforts of progressive forces in the country - the civil society, political actors and the Government of Liberia.
The local civil society has taken the lead to advocate and monitor efforts at peacebuilding and democratic governance.
While the present administration continues to engage international partners on the need for increased aid in security and reconstruction, local state-driven efforts towards good governance and democratization cannot be overemphasized in the process of sustaining the peace and stability in the aftermath of international presence and aid to Liberia.
In the process of state building, constitution making is a key issue that sets the foundation for democratic governance and the rule of law. If political uprisings and violent conflicts in Liberia were caused by poor governance and unaddressed popular grievances then constitutional interventions were needed immediately after the cessation of hostilities in 2003.
Ten years after the the civil war and eight years after the reestablishment of constitutional order, a process of constitutional reform has been initiated by the current regime towards which the Constitution Review Committee has been appointed to lead a process of reviewing the 1986 constitution and draft propositions for amendment.
This article is an analysis of constitutional reform in Liberia and a contribution to the popular debate on the way forward. This article argues that a new Constitution that sets and sustains a foundation for democratic governance and provides for a balanced distribution of power is the solution to the governance and developmental challenges of the Liberian state.
CONSTITUTIONAL HISTORY OF LIBERIA
The first constitution of Liberia dates back to 1847. This constitution essentially had several characteristics relevant to addressing the governance and security challenges of that era.
It can be said that the constitution was highly protective against the wave of colonialism and imperialism in Africa, and was at the same time imposing a pattern of settler-colonialism on the local indigenous population. It also included from its originality a bill of rights that guaranteed the fundamental rights of the citizens of Liberia.
In 1980, the constitution was suspended after a military coup that toppled the over 100 years of Americo-Liberian rule. Before then, the 1847 Constitution had gone through several amendments addressing emerging issues that had required constitutional interventions.
After the suspension of the 1847 Constitution, the military ruled by decree and in 1984 a commission was set up to draft a new constitution for Liberia.
The Constitution Commission's strategy of public dialogue on key issues opened up the space for the Liberian people to make choices on the form and nature of governance they preferred. The greatest aspiration of the people was to have a broad based participatory governance that gave more power to the people and reduced the 'imperial presidency'.
These aspirations were captured in the provisions drafted by the commission. Unfortunately, most of those provisions - particularly those that sought to reduce the powers of the president - were eliminated or revised by another body set up by the head of state called the Constitutional Advisory Assembly.
In the end, the Liberian people went to a referendum to adopt a constitution presented by the Assembly against no other alternative (See Sawyer 2005).
A real opportunity of providing for a responsive and participatory democratic governance in Liberia was available in the transition years following the coup, and this could have been done through the establishment of viable constitutional order.
However, this opportunity was missed. This was because the head of the military junta had a personal interest in becoming president, thus he had to ensure that any new constitutional arrangement would protect him and his associates.
It is therefore obvious that what Liberia has today is a constitution with vague provisions and one that overly concentrates power in the hands of the president, including provisions that grants blanket amnesty to members of the military junta that led the 1980 coup.
The failure or inability of the government emerging from the 1985 elections to establish constitutional order and the inherent limitations of the 1986 Constitution in providing for self-governance and democratic participation at all levels promoted and entrenched the culture of 'imperial presidency' even after the fall of the True Whig Party hegemony.
What followed was a catastrophic civil war during which the constitution was suspended on several occasions to provide for a governing order that accommodated all actors in the conflict - transitional and factionalized arrangements. This was a means of ceasing or managing the wars, rather than solving the problems and resolving the conflicts afflicting Liberia.
Since the end of the conflict, there has been no substantial effort to address the constitutional crises facing Liberia. The referendum of 2011 was a minimalist and selfish effort of the sitting regime.
It ignored the key issues that needed to be addressed to solve the governance challenges facing Liberia through constitutional interventions. The referendum was focused on protecting the interests of officials to hold positions under certain circumstances not guaranteed under the 1986 Constitution.
For example, the sitting president was deemed unfit for rerun under the requirement for residency; therefore, a fast tracked change in the residency requirement that favours the president and several members of the political elite was needed before the October 2011 elections.
The intentions of the political leaders that railroaded the 2011 referendum was not too different from that of the PRC members during the drafting of the 1986 Constitution.
Those intentions can obviously be analyzed as manipulating the constitution as a means of perpetuating themselves in power and protecting themselves and wielding more powers in the presidency through the constitution.
Other issues on the 2011 referendum were the election of members of the legislature on simple majority, an increase in the retirement age for justices of the Supreme Court, and an adjustment in the time for presidential and general elections.
These issues were logically inconsequential to the social and political crises facing the people of Liberia, thus they were denied by the people. What followed were a series of machinations and a smothering of the 1986 constitution revealing the kind of strongman/woman politics that have plagued Liberia and many other African countries for years.
CONSTITUTIONAL REFORM: LEAKAGE OF THE ACCRA PEACE AGREEMENT
The comprehensive peace agreement was another lost opportunity on constitutional reform in Liberia. Most nations that experience such civil and political breakdowns address constitutional issues before the return to civilian democratic rule and the restoration of viable constitutional order.
In most cases, like Kenya and Zimbabwe, transitional arrangements lead the constitution reform process; the population votes on a new constitution and then elections for a new government are held. The new government is formed based on the approved constitution and governs through it principles and provisions.
Liberia's political actors and the international community deliberately ignored, or fell short of considering, constitutional reform as a critical element of transitional processes that facilitate state reconstruction. Several other interests topped the table at the peace conference.
Warring factions were concerned with securing seats in a power-sharing deal and a general amnesty, among other concerns. Political parties and civil society took on accountability issues, ceasefire, disarmament, elections and the restoration of order.
The international community's primary concern was a halt to violence and the return of peace, stability and humanitarian services. No party pushed constitutional reform as a key concern during the peace conference that made way for the transitional period of 2003 - 2005.
Like other previous arrangements, the constitution was suspended to allow for a factionalized transitional government inclusive of warring factions, political parties and the civil society movement.
The lesson Liberian political actors have not yet learned is that if a constitution is continuously suspended, then that constitution is the problem, and until it is remade or reformed, there will be crises.
The 1986 Constitution of Liberia has proven to be the problem, and in addition to its weaknesses of providing for a broad based participatory governance, its provisions institutionalize predatory governance and power abuse. Provisions that promote good governance and democratic practices are even undermined by other provisions that support imbalance distribution of power and over-centralization.
NEED TO REFORM CONSTITUTION
The 1986 Constitution is not a completely flawed or outdated constitution. It includes several provisions that are relevant and wanting in every democratic environment. Chapter Two and Three are outstanding sections that every democratic society craves.
Its fundamental weaknesses lie in the fact that it does not lay a foundation for state building and also did not provide for effective distribution of power that ensures checks and balances between the people and their elected leaders and/or representatives. This is why it has become problematic over the years.
It also does not provide for strong institution building. It is institutions that enforce rules and once institutions are flawed in themselves, it becomes difficult to ensure proper interpretation and enforcement of rules. The need therefore to set rules and build institutions for their enforcement through a constitutional process has become imperative to state reconstruction in Liberia.
Key issues have emerged in post conflict Liberia and they can only be addressed through a constitutional reform process. For example, political and social discourses in Liberia have focused over the last few years on, but not limited to, the following (1) citizenship - who is a Liberian and who is not?
Should a person with Liberian citizenship be allowed to carry citizenship of another or more countries? (2) Government Decentralization - there is a convincing case that Liberia needs a decentralized governance system to break the chain of 'imperial' presidency and centrally-controlled national body-polity to provide for an effective participation of the people in local self-governance and social economic development; (3) Property rights - land ownership, tenure security and distribution is a critical issue in post conflict Liberia and the constitution will have to be clear on property rights: for example who owns the land, the trees on the land, and the resources beneath the land?
This issue as addressed in the 1986 constitution is perceived to be frequently abused by the state when expropriating land from the people.
The current political and social dynamics in Liberia have given compelling reasons for a thorough look at the current constitutional arrangement.
The current constitution does not sufficiently answer the looming political and social questions. In addition to these limitations, it is the key guarantor of the predatory and imperial nature of the Liberian presidency. Thus it has caused massive abuse of power in all branches of government.
Constitutional cases have emerged under the current administration, and the opinions of the Supreme Court have been greeted with rancor and grudgingly accepted.
One particular Supreme Court opinion passed in 2007 allowing for the President of Liberia to appoint mayors of cities did not only undermine the popular aspiration of the people towards democratic local self-governance, but reinforced the 'imperial' powers of the presidency on the local people.
DEBATES ON CONSTITUTIONAL REFORM
Sustainable constitutional reform needs to take place in consideration of the popular opinions of the Liberia people on a range of issues and problems facing the individual citizen, the local communities and the state.
A national debate therefore on the issues needs to gain traction and be framed in context to inform constitutional reforms. Over the years, there have been popular positions on reforming the constitutions of 1986.
While most of the debates have been limited to selected provisions, new arguments have emerged on the totality of the constitution.
One school of thought believes that the entire constitution needs to be remade. For this group of people, a referendum on selected provisions cannot address the range of constitutional problems facing the country, and that other issues on which the 1986 constitution is silent need to be addressed clearly.
Thus they propose that a new constitution be written and submitted for popular debate and a referendum. On the other hand, a second group believes that the constitution must be held in its present originality and be submitted for a referendum on provisions considered inconsistent, outdated or impractical to the reality of today or provisions that do not move in cadence with emerging social and development issues.
These two debates have merits and demerits in other ways, but the common consensus is that no matter what position is taken, there is a need to review the 1986 constitution and set it on course with contemporary realities.
This needs, however, to be done in a way that addresses the problems facing the people of Liberia and facilitates the realization of their collective national aspirations.
THE WAY FORWARD
The way forward is to identify the key problems undermining democratic governance, socio-economic development and peace in Liberia, and open them up for public debates through which the views and aspirations of the Liberian people can be elicited.
It is important to note from the start that the challenges of democratic governance and massive poverty and inequality in Liberia are underpinned by imbalance in distribution of power, inefficient use of resources, corruption, weak protection of property rights, power abuse, and the lack of accountability and transparency in the management of public affairs.
Other issues like citizenship, government decentralization, property rights, national identity and national symbols have risen to the public agenda sparkling controversial debates since the end of the civil war.
These issues, in addition to ones mentioned above, cannot be addressed in the absence of a national endeavor to change the contents of the current constitution and make it effective in the functioning of the state. Amendment of provisions will be a tinkering approach short of solving the problems facing the Liberian state and the people.
A comprehensive process of reforming the Constitution is therefore needed to address these issues in their generic, and all other specific issues can follow through enabling legislations. This means a new Constitution, that includes essential principles and provisions of the current Constitution is needed for Liberia.
The opportunity Liberians have in this constitution remaking process is that there has been popular consensus from the citizenry and competing political actors on the need to review the current constitution and find a way of solving the country's problems through a functional constitutional arrangement.
In addition, a strong will and support from political leaders will accelerate the process of constitutional reform. By the current constitution, the current President of Liberia cannot run for a third term of office.
The fact that this process has begun during her last tenure is an opportunity to have a new constitution free of manipulations and a flawed process that concentrates power at the presidency and give amnesty to individuals who violate humanitarian and human rights laws.
Liberians therefore have an opportunity of leading themselves into a sound constitution making process upon which the pillars of local self-governance and democracy can be sustained.
- Ibrahim Al-bakri Nyei is a policy analyst, Political & Legal Reforms - Decentralization Program, Governance Commission. He can be reached at: firstname.lastname@example.org