The Liberian Supreme Court is the last place of hope to realize the democratic promise of governance under the rule of law. On the shoulders of five distinguished jurists rest the honorable duty to courageously direct our nation away from institutional lawlessness and constitutional violations. On April 4, as the international community summoned political stakeholders to sign the Farmington Agreement, providentially, the Supreme Court was hearing the Petition of the Collaborating Political Parties (CPP) against the National Elections Commission (NEC), for violating Article 80 (c, d & e) of the Constitution. Point 2 of the Guiding Principles of the Farmington Agreement affirms that "the 2023 presidential and legislative elections should be held consistent with the constitution and laws of Liberia, AND in line with all international standards governing the conduct of free, fair and transparent democratic elections."
The National Housing and Population Census mandated by Article 39 of the Liberian Constitution (1986) is both a critical electoral tool and an important socio-developmental gauge for the country. It provides figures and statistics for development planning and the conduct of constitutionally-prescribed fair elections so that constituencies are reapportioned, the votes of citizens are equal in meeting both constitutional and international standards of universal suffrage, and the representation of the people in the government is not arbitrary but consistent with the growth and movements of the population.
In his State of the Republic Address in January, the President announced that the census had finally been conducted. In February, LISGIS, the government agency responsible for the conduct of the census, announced "provisional results," in which it informed that Liberia had grown by 50.4%, and in some counties which historically showed low population figures, the population had ballooned by up to 88.9%. The international community qualified the census to have met and exceeded international standards.
On March 13, LISGIS wrote the Legislature to inform that it had conducted the census and issued provisional results, but due to ongoing post-conduct analyses and enumeration, it would submit final results in May. On March 20, starting in six counties, the NEC began the registration of voters. Three days to the registration, on March 17, the opposition CPP asked the Honorable Supreme Court to declare the registration of voters absent reapportionment of constituencies when census are conducted, "unconstitutional." At issue and cited in full is Article 80 (c, d & e) of the 1986 Constitution of Liberia:
c. Every Liberian citizens shall have the right to be registered in a constituency, and to vote in public elections only in the constituency where registered, either in person or by absentee ballot; provided that such citizen shall have the right to change his voting constituency as may be prescribed by the Legislature.
d. Each constituency shall have an approximately equal population of 20,000, or such number of citizens as the legislature shall prescribe in keeping with population growth and movements as revealed by a national census; provided that the total number of electoral constituencies in the Republic shall not exceed one hundred.
e. Immediately following a national census and before the next election, the Elections Commission shall reapportion the constituencies in accordance with the new population figures so that every constituency shall have as close to the same population as possible; provided, however, that a constituency must be solely within a county.
The CPP contends that constituencies into which a voter must be registered have not been reapportioned by the NEC. In a compelling affirmation and contravention of Article 3.5 (1) of the Elections Law of 1986 amended in 2014, which requires a voter's registration card to display the name of a constituency on its face, no voter registration card being currently issued displays the name of a constituency on its face. The NEC contends that it is registering in old constituencies and cannot reapportion new ones because the Legislature has not prescribed a new number of citizens (threshold) for a constituency in keeping with the new population growth and movements revealed by the census.
To register voters in any of the so-called 73 constituencies is fraught with constitutional problems. The increase from pre-war 64 to post-war 73 constituencies obtained over the issuance of LEG-002 (2010), a Joint Resolution/opinion of the 52nd Legislature. LEG-002 is self-limiting establishing no new figure (threshold) for constituencies, and conditionally and setting aside the 2008 census results by establishing "a Special Electoral Threshold for the conduct of the 2011 Presidential and Legislative elections." To therefore use the same 73 constituencies established by LEG-002 (2010) is to not only resurrect the unconstitutional opinion of a dead entity but also to subject the country, thirteen years later, to the same unconstitutional behavior against the expressed directive of the 52nd Legislature not to use its opinion for the conduct of future presidential and legislative elections. Citing the lack of conducive environment and conditions due to the breakdown caused by the war, the 52nd Legislature resolved as stated below:
a. That the sixty-four (64) electoral districts set up and used by the National Elections Commission (NEC) for the conduct of the 2005 Presidential and Legislative elections shall remain; and nine (9) additional electoral districts are hereby prescribed and established, for a total of seventy-three (73) electoral districts. The NEC shall reapportion the districts accordingly.
b. That the Legislature hereby resolved that following the 2011 Elections, at which time the conducive environment and condition would have obtained, arrangements will be made for conduct of a National Housing and Population census which will satisfy the requirements of Articles 13 and 39 of the Constitution, the result thereof to be used pursuant to Article 80 (d) and (e). Emphasis supplied.
The point cannot be stressed enough: The 52nd Legislature intentionally limited its Joint Resolution to only the conduct of Presidential and General Elections in 2011. It did not wish to institutionalize its opinion for use in future presidential and general elections. The NEC has reasons to also know that the 73 constituencies established by the 52nd Legislature unconstitutionally ranged from 13,000 voters, which is below the constitutionally-established minimum of 20,000, to as high as over 69,000 voters. This disparity provided for not just inequality in representation but also inequality in the votes of citizens in the election of representatives of the constituencies.
As the Supreme Court has consistently decided, the NEC has no option but to strictly obey the Constitution. Strangely, however, the governing electoral body has not allotted a period in its variously published and revised electoral schedules for the reapportionment of constituencies, a constitutional mandate assigned to it. Simply put, the NEC never intended to use the recent census results nor even the 2008 one, and does not still intend to use any census results critical to the conduct of free, fair and constitutional elections in Liberia. Since the commencement of the voter registration without the reapportionment of the constituencies, there has been various public reports of illegal and massive trucking of voters and the dangerous invasion into our democracy by non-Liberians from neighboring countries. This, too, is a consequence of the failure to obey the Constitution. Compounding a violation does not cure a wrong; it worsens the wrong to the detriment of the nation. There are always consequences for breaking the law.
As the Supreme Court puts it, "[A]dherence to the mandates and directives of the constitution by every citizen and authority is mandatory. No one has the right to ignore or disregard its mandate. All government institutions and officers thereof, are expected to meticulously perform the duties and functions which the constitution confers upon them and within the timeframe mandated for the performance of an assigned duty" (CPP et al vs NEC et al, October Term, 2020). This follows that the failure of the Legislature or incompetence of LISGIS to act within constitutional time in no way grants unto the NEC an excuse not to act in strict obedience to constitutional mandates. LEG-002 offers the NEC no constitutional shelter under which it can hide. Moreover, knowing the definition of a constituency - its population and boundary - is fundamental to conducting free, fair, constitutional and credible elections.
The constitutional duty of the NEC is not to conduct any elections or to simply assure that all registered voters have a place to vote. The constitutional duty of the NEC mandatorily extends to ensuring that elections are conducted as prescribed by and in keeping with the Constitution, and that each person's vote, especially for members of the House of Representatives, is worth the vote of another in other constituencies. From these constitutional duties, the NEC cannot be excused.
What if the Legislature does not act to trigger the NEC's constitutional action? The simple answer still is that the NEC must never act unconstitutionally. Where one constitutional action must trigger another, for the NEC to act absent such triggers, however good the intention of the NEC may be, only aids and abets institutional lawlessness. The NEC cannot be joined with the Legislature and other agencies of the Executive, whose members and leaders are contesting in the upcoming elections, in compounding rather than publicly resisting constitutional violations. The net effect is to rob the NEC of its credibility and independence into collusion to reward derelictions of duties to the Constitution and skew the electoral process and its outcome away from constitutional authority, security and integrity.
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Justice Wolokolie was right: We must not allow Liberia to slip into lawlessness, individual or institutional. However, to do so, Liberia now needs five men and women - perhaps even three - to do what is right, and to stand on the side of that which is lawful, because it is right. Paraphrasing Josiah Holland: God, give us men, and women, the time in Liberia demands.
God, give us men!
A time like this demands
Strong minds, great hearts, true faith and ready hands;
Men whom the lust of office does not kill;
Men whom the spoils of office can not buy;
Men who possess opinions and a will;
Men who have honor; men who will not lie;
Men who can stand before a demagogue
And damn his treacherous flatteries without winking!k.
Tall men, sun-crowned, who live above the fog
In public duty, and in private thinking;
For while the rabble, with their thumb-worn creeds,
Their large professions and their title deeds,
Mingle in selfish strife, lo! Freedom weeps,
Wrong rules the land and waiting Justice sleeps.
- Josiah Gilbert Holland
Ambassador Lewis Garseedah Brown is a former Chief Negotiator of Liberia's peace, and Permanent Representative of Liberia to the United Nations, in New York
Ambassador Lewis Garseedah Brown, Contributing Writer
