Liberia’s long-awaited constitutional referendum: Debate on alternatives to by-elections

 Liberia’s long-awaited constitutional referendum: Debate on alternatives to by-elections 

President Weah is pushing the submission of the outcomes of Liberia’s participatory constitutional reform process to referendum. Nevertheless, the emergence of new controversy over the abolition of costly and time-consuming by-elections may scuttle the referendum drive. A compromise proposal combining by-elections with local council appointments could provide the needed breakthrough – writes Ibrahim Al-bakri Nyei.

Seven years after Liberia’s former President Ellen Johnson-Sirleaf established a Constitutional Review Committee to comprehensively review Liberia’s 1986 Constitution and make proposals for reform/amendment, the country is yet to conclude the process of reform. For years, activists have called for a comprehensive reform of Liberia’s constitution to make provisions for new generation of rights such as rights on citizenship, women’s rights and political participation and the decentralization of power to local tiers of government. The process has been inconclusive largely due to a lack of consensus among the political leadership on the constitutional future of the country. Also, the lack of political support and commitment from Sirleaf herself to the reform was evident as her Government did not provide adequate financial and political support to the work of the Committee. For the bulk of its financing, the Committee relied on international donors whose support were determined by their own intervention objectives.

President George Weah, however, started his presidency with a call for constitutional reform, renewing hopes among activists and international supporters of democratic reforms in Liberia. In both his inaugural address and first speech before the legislature, he stressed the urgency of reforms – mainly emphasizing his support for proposals on dual citizenship and the repealing of the controversial ‘negro clause’ that limits Liberian citizenship only to people of Negro descent. His supporters in the legislature immediately began to work on these issues.

New controversy over abolition of by-elections could further complicate the debate on constitution reform that has been stuck in legislative committee rooms.

Nearly two years into his administration, the debate on the constitution has been stuck in legislative committee rooms. However, a recent meeting between President Weah and the legislature on constitutional reform issues emphasized the commitment of his government to reforming the constitution in line with prevailing demands. Weah was right to remind legislators that the laws of Liberia, and mainly the Constitution, ‘have been overtaken by time and circumstances’. Though adopted relatively recently, in 1986, Liberia’s current constitution is among the oldest on the continent. Since the 1990s, most African countries have parted ways with their post-colonial constitutions, some of which entrenched one-party rule and overly centralized states. Others promulgated new constitutions after years of de facto authoritarianism, or civilian uprisings to make provisions for new social and human rights and democratisation. Not much has been done in Liberia even after 14 years of civil war that repeatedly tested the responsiveness of the Constitution to political crises.

Weah’s recent call came with a rather new and controversial proposal - in addition to the ones already before the legislature - calling for an amendment to provisions on by-elections to fill vacancies in the legislature. This proposal, without even reaching the chambers of the legislature, has sparked a new level of debate on constitutional reform. Depending on how its nuances are thrashed out, it could reignite citizen and political interest in the overall reform process and potentially lead to the long-awaited constitutional referendum, which is necessary to approve constitutional reforms.

Abolishing by-elections – the novelty in Liberia’s constitutional debate

Under current laws, a vacancy in the Legislature is filled by a popular election in the affected constituency – electoral district or county for members of the House of Representatives or the Senate respectively. A candidate elected in a by-election serves the remaining term of the unexpired term of the previous occupier of the seat until the next regular election. This principle is invoked when a vacancy occurs either by ‘death, resignation, expulsion or otherwise’ and said by-election is to be held by the National Elections Commission within 90 days of notification. Liberians have been used to holding by-elections to fill vacancies in their legislature over the last thirteen years, mainly caused by the death of an incumbent legislator, the election of a representative to the Senate or Senators to the post of President and Vice President (as in the case of Weah and his Vice President). Largely, this has given constituencies opportunities to continuously decide who represents them, and in many ways to punish parties that are not meeting expectations, whether in opposition or in government.

Weah’s novel constitutional proposals would abolish by-elections completely as a means of filling vacancies in the legislature created by situations mentioned above. Popular by-elections are perhaps what have brought enormous financial weights on Weah’s administration. An open argument between the National Elections Commission (NEC) and the Ministry of Finance in 2018 regarding funding for the holding of by-elections to fill two senate seats left vacant as a result of the election of Weah and his Vice President led to delays in conducting those polls far beyond their constitutionally mandated time. In less than two years, his government has been faced with the burden of financing six by-elections (with one pending). The Government has been compelled to spend millions in fulfilling this constitutional principle even when it struggled to finance its payroll and support hospitals and schools with needed materials. For instance, in 2018, the NEC budgeted $3.9 million to conduct two by-elections to fill vacancies left as a result of the election of George Weah and Jewel Howard-Taylor to the positions of President and Vice President respectively; while in 2019 it requested an amount $2.5 million for senatorial and representative by-elections in Montserrado County.  But the failure to implement the constitution, particularly regarding electoral issues in an edgy political environment like Liberia, risks potential crisis. For President Weah, there should be a way of dealing with this without much cost to the state, particularly in the face of economic decline.

Liberia does not currently have elected local councils, making Weah’s proposal impractical without accompanying reforms to local councils.

The suggested proposal is to have ‘duly elected county councils’ fill vacancies in the legislature by appointment. This proposal leaves much to be settled. Currently, Liberia has no elected county councils. Existing county councils are decision-making bodies in the county without regular membership and meet once or twice a year to deliberate and decide on matters of development to be funded by the county development fund. Delegates to these councils are normally selected by national legislators and county superintendents with no specific qualification requirements. The struggle over resources and efforts to project power and control local politics have led to conflicts between the local county leadership and legislators in many counties, with some unable to constitute county councils for years. Their internal decision-making processes have been heavily criticized by local civil society organizations for being undemocratic and captured and controlled by national legislators, and in rare cases the executive through the office of the county superintendent. While they provide opportunities for local people to participate in decision-making processes, the overbearing influence of legislators and county officials have gravely undermined the objectives for which they were originally established in 2006. Thus there have been repeated calls for a reform of the county council itself.

The recent Local Government Law of 2018, which for the first time provides for the regular constitution of County Councils, promises to end the power struggle between legislators and local officials. However, the law makes no provisions for the election of council members. Instead, the Council in each county will be a 9-member local body made up of representatives of traditional chiefs, women and youth groups, people with disabilities and civil society organizations. Since the law was passed, no council has been fully constituted as provided. Given that the new proposals make no provisions for the reform of the council, such as broadening its powers to include selection of legislative candidates in events of vacancies, it is unclear how this reform, even if passed, is expected to be implemented in the counties.

The economic incentive for abolishing by-elections: How tenable is this argument?   

Proponents of the proposal to abolish by-elections suggest that it is a way of saving cost and freeing up money for much needed social services. Publicly supporting this claim is the Movement for Economic Empowerment (now allied with the ruling party), a party that campaigned in the 2017 Presidential election on a manifesto of sound fiscal management through austerity and the promotion of local enterprises. The Election Coordinating Committee, a civil society coalition that monitors elections and advocate for democratic participation, also supports the abolishing of by-elections ‘because of low turn-out and financial burden on the government’.  

Weah must have received the support of his Congress for Democratic Change party before introducing this proposal. With his partisans occupying the leadership of both Houses of the Legislature, the Speaker of the House and the Pro Tempore of the Senate are likely to support the proposals. But the positions of the majority members from other allied and opposition parties are yet unclear. A recent session of the House of Representatives on this issue held at an executive (secret) session was reportedly confrontational and ended inconclusively.

Weah has support from the leadership of both legislative houses, but that may not suffice to push the reforms forward.

For the main opposition parties, this is a no-brainer, and they stand to oppose it to the core. According to Senator Darius Dillon, a recent beneficiary of by-election, the constitution cannot bear the brunt of the poor state of the economy:  ‘We will not punish our constitution for an economy that we are creating out of our own hands’, he stressed. For Dillon and other politicians and activists opposing this proposal, changing the constitution due to the poor state of the economy would mean undermining the right of the people to freely choose their leaders. They may be right, but to succeed in defending this principle they will need to build a stronger coalition in a legislature led by close allies of the President.  

Among the general public, the reaction is that of collective angst and scepticism, mainly concerning the potential of this new proposal to be used as a window for increasing ruling party representation in the legislature, and reducing the role of citizens in selecting their representatives. Recent outcomes of by-elections support this scepticism and seem to back conspiracy theories that Weah has other motives than saving cost at the expense of holding by-elections.

For the ruling Congress for Democratic Change, there is a greater incentive now to support the proposal, not least to find ways around the party’s growing unpopularity.  Weah’s inability to deliver on electoral promises on fighting corruption, and the sluggish state of the economy continue to turn his own supporters against him.  After organizing six by-elections, his party lost three - all of which were seats previously held by his party and other constituent parties in his ruling coalition. In his putative traditional heartland of Montserrado County, the county he once represented in the Liberian Senate, his anointed candidate came a distant second to the candidate of the collaborating opposition parties in a Senatorial by-election held in July 2019. Months before this humiliating defeat, he suffered another setback after his party’s candidate lost in a by-election to an independent candidate in another constituency once loyal to his party. In a pending by-election in Grand Cape Mount County, his party announced they will not participate in the election, and would use the time to ‘vigorously pursue its path to recovery’, according to its National Chairman Mulbah Morlu.  This is the first time in Liberian history – and perhaps in Africa - that a ruling party has withdrawn from an election - without even declaring support for any allied party or candidate in said election - while it holds the seat.  

Can Weah get his way with this proposal?

The economic calculation as an incentive for abolishing by-elections may have generated temporary support in some quarters, not least because it appeals to sentiments regarding financing public services as opposed to financing the election of legislators who are already criticized for not doing enough to alleviate the problems of their constituencies. However, this proposal faces several headwinds for many reasons.

First, it carries the potential of denying the people the right to freely elect their representatives when there is a vacancy in the legislature, a constitutional tradition Liberians have been acculturated to at least since the return to civilian democratic rule in 2006.

Second, the resort to County Councils also makes the proposal more tenuous since they are currently not elected and infamous for being talk-shops of puppets of legislators and county officials. Local civil society organizations in the various counties, wary of the unpopular decisions of county councils, are likely to oppose this proposal in any referendum. As the debate picks up in the legislature, other selection mechanisms for filling vacancies in the legislature might be proposed as silver linings, should this proposal pose the risk of delaying the entire agenda for constitutional reform which includes other items as citizenship, reduction of tenure of elected officials, and proposals on affirmative action for women political participation.  Even without this new controversy, the constitutional amendment procedure is extremely cumbersome and requires approval by the legislature, president and with a supermajority in a referendum. A minimum of one year must pass between approval by the president and the referendum date, with a view to allow proper popular deliberation of the proposals.

Even without the added controversy over abolition of by-elections, constitutional amendment is extremely cumbersome.

No matter the selection mechanism approved, if the principle of by-election is completely abolished, the ultimate consequence would be a limited role for the electorate in the selection of legislators should a vacancy occur in between regular elections – an outcome the electorate are likely to reject.  A possible compromise proposal could combine by-elections with county council appointment, depending on the number of years to the next elections. Accordingly, by-elections could be required only if the remaining period is shorter than say half of the duration of the legislative term. In other cases, local council appointments would suffice. Alternatively, a greater role could be given to political parties in that they are allowed to fill a vacancy through their internal mechanisms should a seat be vacated by a person elected on the party’s ticket, and a by-election be called in the case of an independent candidate. After all, parties fielding candidates in elections shoulder the bulk of the responsibilities in meeting the requirements unlike those standing as independents.

A number of alternative proposals might emerge as means of balancing this economic incentive argument against that of the democratic participation one, but only through broad-based national debate and consultation would the legislature produce a consensus on this thorn of an issue.

Ibrahim Al-bakri Nyei is a Liberian activist, political commentator and blogger. He is currently a PhD Candidate at the School of Oriental and African Studies, University of London.