Moving toward Constitutional Reform in Liberia

Introduction

Constitutional reform could potentially set Liberia on a sustained path of peace and development, provided it produces a legitimate outcome and addresses the underlining problems of governance and power relations. The country’s history has been chequered by autocratic rule, economic decline, military dictatorship and long years of civil war (1989–2003). The election of a civilian government in 2006 to replace the transitional (factional) government – formed as part of the peace process in 2003 – paved the way for sustainable peace, and brought opportunities to carry out sweeping reforms in government. Inheriting a bloated civil service and the onerous task of reconstruction and peacebuilding, the government initiated a range of reforms touching nearly all sectors of national life – the public sector, civil society and the private sector have all been affected by the reform programmes initiated since 2006.

Many activists have made a case for constitutional reform as an imperative for post-war state-building and peacebuilding in Liberia. This has also been the practice in many other countries emerging from civil war or political crisis.¹ Interestingly, constitutional reform did not form part of the initial priorities of Liberia after the war in 2003 – much of the country’s post-war priorities have focused on tangible issues, such as infrastructural development and economic growth.

In August 2012, President Ellen Johnson Sirleaf appointed a Constitution Review Committee (CRC) “to examine constructively the Constitution of the Republic and lead a process that will produce appropriate constitutional amendment(s)”.² Accordingly, it was mandated to, among others, “arrange public discourses and debates on provisions of the Constitution with a view to ensuring the Constitution is in conformity with Liberia’s post-war democratic realities and aspirations, and craft proposals for amending the Constitution.”³ This mandate of the CRC sends a significant message that it must seek to produce a legitimate output through public consultations nationwide. A legitimate constitutional reform process is one done with full participation of all national actors and whose output is endorsed through consensus. This article examines the legitimacy of the Liberian constitutional reform process from 2012 to 2015, using the following normative elements (requirements) of legitimacy as a framework for analysis: inclusion, participation, transparency and consensus-building. The article presents a background to constitutional reform in Liberia; and analyses the extent to which the constitutional reform process from 2012 to 2015 met the key requirements of legitimacy. The conclusion is a summary of findings, implications and some recommendations.

Background to Constitutional Reform

Liberia’s first Constitution, promulgated in 1847, was among the oldest surviving constitutions in the world until it was abrogated in 1980 by the People’s Redemption Council (PRC) military government, after the overthrow of the True Whig Party government in a bloody coup. In 1986, a new Constitution was promulgated by the military cum civilian government, replacing the Constitution of 1847. Despite promises of reforms and a breakaway from past practices of malgovernance, the military rejected proposals for a more democratic and inclusive governance arrangement such as those that called for decentralisation and reduction in the powers of the president.⁴ The constitutional reform process of the early 1980s lost the opportunity to produce a legitimate and popularly accepted constitution when the military leadership appointed a Constitutional Advisory Assembly comprising loyalists, who ended up producing a constitution favourable to the military juntas. This left the nation wanting a democratic constitution. State centralisation, which promoted an imperial presidency and a system of control over local resources through agents of the central government, was strengthened through the Constitution. Further, this new Constitution granted amnesty to the PRC for all crimes committed during the period 1980–1986. The 1986 Constitution lasted only four years when war broke out, and its provisions were frequently suspended to accommodate terms of peace agreements during 14 years of conflict (1989–2003). By the time the war ended, the 1986 Constitution had become nearly obsolete, and was irrelevant to the political and socio-economic realities of the country.

Since the end of the civil war, there were proposals from politicians and civil society activists alike for constitutional reform. Many have traced the sources of the civil war to practices of bad governance, which include nepotism, corruption and weak institutions of accountability for public officials. Furthermore, there seemed to be consensus among politicians, civil society activists and Liberia’s development partners that long-term peace and stability depended on the reorganisation of state institutions for effective and efficient service delivery, the reform of obsolete laws that do not address contemporary issues, and the adoption of a system of participatory governance through decentralisation and the empowerment of local self-governance institutions. It therefore became imperative to initiate a national process for constitutional reform in Liberia.

The initial process of constitutional reform commenced in 2009, but was abandoned due to constraints in resources, and possibly because it was not then a priority of the political leadership. A committee, comprising of civil society organisations (CSOs), faith-based and interest groups, academics and government agencies was appointed as a Constitution Reform Taskforce. The work of this taskforce was to review the Constitution and make recommendations for reform or amendment. The taskforce, with a membership of 21 persons, could not move beyond regular planning meetings and quietly died, due to a lack of funding from the government. Later, in 2011, a referendum, proposed by the National Election Commission, was held on election-related provisions. Thus far, this referendum has been the only concrete attempt to reform the Constitution since the end of the war. Only one out of four proposals at the referendum was passed. This was partly because it was the political leadership – without consultations with the public – that decided the issues for the referendum. Even after the referendum, it became apparent that constitutional reform needed to be broadened to address issues such as property ownership, citizenship and power relations – salient issues emerging out of the civil war, and even recommended as priority items in the 2009 report of the Truth and Reconciliation Commission. Furthermore, the government had initiated a range of reforms since 2006 affecting power relations, institutional restructuring and security sector, civil society and private sector empowerment, and some of the reform initiatives could not take effect or be sustained without constitutional reform. While legislation and policy statements effectuated successful reforms in some areas, they have had limitations and have proven insubstantial in some cases. For example, a reform on decentralisation, which would largely reduce the powers of the central government and establish local governments with local deliberative councils, could not succeed without a reform of the Constitution.

The limitations of electoral laws and the unsuccessful outcome of the referendum, in addition to many other proposed reforms, meant that the government needed to move a step further in dealing with the ultimate reform – that is, constitutional reform. This necessitated the appointment of the CRC in 2012, with a mandate to review the 1986 Constitution and make recommendations for reforms.

Engaging Constitutional Review: How Legitimate is the Process?

Constitutional reform provides opportunities for countries in transition to deliberate and find solutions to the divisive issues that led to crises.⁵ Equally noteworthy is the fact that processes of constitutional reform – due to their polarising nature – could return a country to crisis if they fail to gain legitimacy through popular participation and consensus-building by the people. Legitimacy, in this case, refers to popular endorsement of the processes and outputs/outcomes of the constitutional reform exercise. This is very important, because a constitution proclaimed – in a post-war context – without the mandate of the people stands the risk of being rejected, deliberately violated or disrespected by groups who feel marginalised and excluded. For a constitutional reform exercise to be considered legitimate, the processes leading to a new or revised constitution must be inclusive, participatory and transparent, and the outputs must be based on popular consensus.⁶

This section examines the work of the CRC from its establishment in 2012 to the time of the National Constitutional Conference – held in Gbarnga City, Bong County, from 29 March to 2 April 2015 – for elements of inclusivity, participation, transparency, consensus-building and national ownership.

Inclusivity

A body reviewing the constitution must be inclusive of the diverse groups in the country in such a way that it represents the collective views and aspirations of the nation. A constitution-making body in a divided society such as Liberia must include, among others, ethnic groups, religious minorities, political parties, CSOs and the various regions of the country. A closer look would suggest that the CRC was constituted on regional (geographic) considerations. However, this was not much of an issue to Liberians, who are more attached to counties, tribes and religions. These key issues were overlooked, and except for one member, all the members of the CRC subscribed to a single religion. Prior to the establishment of the CRC, a Political Consultative Forum (PCF), comprising parties that participated in the 2011 elections, was formed to harmonise views and to integrate CSOs in moving forward with the establishment of the CRC. Despite this impressive beginning to include CSOs and political parties, in the end, there was no balanced representation of political parties on the CRC – known supporters of the ruling party were appointed to the committee, and its chairperson, a former chief justice, was an executive official of the ruling party. An opposition political leader served on the committee and later resigned to prepare for the next presidential election.⁷

Participation

The participation of citizens in a free, fair and informed way is critical to a legitimate outcome of a constitutional reform process. For such a process to be participatory, citizens must be educated about its intent, nature and processes. This can be done through civic education, town hall meetings and mass media. One method of ensuring citizens’ participation in constitutional reform exercises is through consultations. Public consultations in such a process give citizens opportunities to freely voice their concerns and aspirations to those tasked with the process of reform. They also present opportunities to those working on constitutional reform to better understand the problems of the society through the inputs of the citizens.⁸

As stated previously, the CRC was instructed to lead nationwide debates and dialogues on issues of constitutional relevance. These debates and dialogues were held at various consultative forums with citizens in electoral districts, with special interest groups, political parties, faith-based organisations and women and youth representatives. As part of ensuring that citizens in all districts participated, trained civic educators were deployed across the country, sensitising people in local languages, and suggestion boxes were placed on street corners and in popular places for citizens to write down and submit their recommendations to the committee. Public hearings on thematic issues such as citizenship, land rights and monetary policy (dual currency or single currency) were also held with subject matter experts and activists. Despite its efforts at reaching out, however, the CRC was criticised for not stimulating nationwide debates and that awareness and civic education programmes were largely insufficient to generate the kind of participation required for such a process. Other salient elements of participation include representation and decision-making. The CRC’s methodology of ensuring representation involved selecting district representatives through formal processes arranged with local state bureaucracy – this was restricted to a small number of people, based on the availability of donor funding. Delegates at the forums proffered recommendations that were noted, compiled and later voted upon at the national conference, which was also very restricted and held over only three days.

Transparency

An open constitutional reform process is critical to ensuring that citizens are fully aware of the progress, challenges and issues in the review process. Transparency increases the accountability of the process and enhances its credibility to citizens. Thus, a constitutional review process must ensure that citizens and all stakeholders – for example, political parties and CSOs – are aware of what is happening at each stage of the process. This should involve periodic reporting to the legislature, engagements with other non-state actors, publications in news media and announcements on radio. The review process in Liberia from 2012 to 2015 did little to keep the public aware of its processes nationwide. In fact, the fate of the constitution review process was assumed to be doomed when the committee went into prolonged silence between 2013 and 2014, and this silence was further exacerbated by the outbreak of the Ebola virus.⁹ Besides reporting to the presidency and the legislature, not much was done to debrief participants in previous consultations. As a result, participants at the national conference had little or no knowledge of what the key issues were. This led to a breakdown of order. Ultimately, the original agenda of the national conference was revised to accommodate the demands of the participants.

Consensus-building

Countries in constitutional transition, mainly those with a history of political violence, must seek to reform their constitutions through popular consensus, particularly in the stages of identifying issues and drafting propositions for referendum. At this stage, it is important that all actors engage, discuss and negotiate common positions on issues, rather than going through majoritarian politics, which could be highly divisive and disruptive.¹⁰ A constitution drafted through consensus-building can be popularly legitimate and respected by all parties, as it gives all groups the confidence that their views and concerns were respected. Issues for consideration by the CRC were initially identified during town hall meetings and thematic hearings, and delegates in most cases decided on issues without much debate – for example, reductions in the tenure of elected officials and the election of local officials were general concerns that were unanimously endorsed. Unfortunately, this opportunity for consensus-building at the National Constitutional Conference was lost when the CRC introduced a majority voting process without opportunities for delegates to understand, discuss and negotiate on salient issues. The conference further sharpened previously overlooked religious cleavages, pitting Christians against Muslims. A proposal to declare Liberia a ‘Christian state’ in the Constitution was overwhelmingly voted for by delegates at the constitutional conference, even though Muslim delegates (and some moderate Christians) had condemned the inclusion of such a proposal on the agenda. Even before the conference, the CRC itself was internally divided on this issue. Finally, the conference, which was held under tight security, ended up with ‘winners’ (Christians) and ‘losers’ (Muslims), instead of with an output popularly owned and respected by the Liberian people. This issue has sparked contentious debates and has since overshadowed all other issues in the constitutional review process.

Conclusion

Liberia’s constitutional review process is currently at an advanced stage, awaiting legislative deliberations in line with Article 91 and 92 of the Constitution.¹¹ The attempt at constitutional reform has been welcomed in Liberia and holds enormous potential for reconciliation, governance reform and development. The challenge for constitutional reform in every context is to gain popular legitimacy through inclusive and participatory processes. The above analysis suggests that the CRC of Liberia is not fully inclusive of the diversity of the nation, and cannot claim to represent the mosaic of the various conspicuous divides in Liberian society: ethnic, county, religious and political. The methodology adopted by the CRC for constitutional reform had the potential for ensuring massive citizen participation, and the deployment of civic educators to sensitise the public – including through numerous radio programmes – went far in pursuing this objective. However, the committee was constrained by donor rules and limited funding from the government. Therefore, it could not fully exhaust its plans for mass public participation. However, one can still conclude that the recent process had higher public participation when compared with the processes leading to the 2011 referendum. It fell short, however, of being transparent and engaging the public on its activities beyond the public consultations. With the sense of more accountability to the political leadership than the public, debriefings were held with only the presidency and the legislature. The lack of regular information-sharing on the status of the CRC activities caused an asymmetry between the agenda of the public and that of the CRC. This affected the national conference and further led to a chaotic and divisive outcome. If the outcome of the national conference is anything to go by, it can be concluded that the process and its outcome are not based on popular consensus – and the tense debates following the national conference suggest that the constitutional reform process, instead of uniting the country, has further sharpened its divisions. Liberia stands the risk of facing another political crisis and going through repeated constitutional crises if it fails to settle its political, social and economic problems through comprehensive constitutional review in the immediate term.

As this analysis of the process from 2012 to 2015 indicates, the constitutional review process is still wanting of legitimacy and stands the risk of failing, as key requirements to ensure that the outcome is popularly endorsed and respected have not been satisfied. However, there are still opportunities to salvage the process and seek greater legitimacy for its outcome through legislative deliberations and the referendum. With salient issues about national reconciliation, governance reform and decentralisation still being proposed, it is important that the legislature organises public hearings on these issues, to ensure that citizens’ groups with legitimate concerns present their cases for deliberation. Special legislative public hearings could lead to an expansion of the debate on constitutional reform and enhance its legitimacy through the processes of deliberation, negotiation and consensus-building on contentious issues.

Endnotes

1. Kenya, Zimbabwe, Tunisia, Morocco and Egypt are examples of post-crises countries that have gone through constitutional reform in recent times, as a means of addressing political and socio-economic problems.
2. Republic of Liberia (2012) Terms of Reference. Constitution Review Committee.
3. Ibid.
4. Sawyer, Amos (2005) Beyond Plunder: Towards Democratic Governance in Liberia. USA: Lynne Reinner Publishers.
5. Samuels, Kirsti (2006) Post-conflict Peace-building and Constitution-making. Chicago Journal of International Law, 6 (2), Article 10, Available at: <http://chicagounbound.uchicago.edu/cjil/vol6/iss2/10> [Assessed 30 June 2015].
6. Brandt, Michele et al (2011) Constitution-making and Reform: Options for the Processes. Switzerland: Interpeace; Gluck, Jason (2011) Constitutional Reform in Transitional States: Challenges and Opportunities Facing Egypt and Tunisia. Peace Brief, 92, Available at: <http://www.usip.org/sites/default/files/PB92.pdf> [Assessed 3 July 2015]; and Gherghina, Sergiu and Miscoiu, Sergiu (2014) ‘A Constitution by the People? The Legitimacy of Deliberation in the Romanian 2013 Reform’. Paper prepared for delivery at the ECPR General Conference Glasgow, 3–6 September 2014, Available at: <http://ecpr.eu/filestore/paperproposal/d9449d1e-52d9-4dc0-aaec-8ec7eff86ef3.pdf> [Assessed 6 July 2015].
7. Rev. Kennedy Sandy, leader of the opposition Liberia Transformation Party, resigned his post as CRC member in December 2014, citing the Code of Conduct (enacted 2014), which provides that officials of government planning to contest any election must resign three years ahead of said election. She hasn’t been replaced since. See <http://www.publicagendanews.com/?p=731>.
8. See Bisarya, Sumit (2014) ‘We the (Poor) People – Constitutions and the Economically Marginalized’, Available at: <http://www.developmentprogress.org/blog/2014/04/10/we-poor-people-constitutions-and-economically-marginalised> [Assessed 3 July 2015].
9. For a deeper understanding of how the constitutional process was stalling, see Nyei, Ibrahim Al-bakri (2015) ‘Lack of Money or Lack of Political Will: What is Stalling Constitutional Reform in Liberia?’, Available at: <http://www.constitutionnet.org/news/lack-money-or-lack-political-will-what-stalling-constitutional-reform-liberia> [Assessed 10 July 2015].
10. Samuels, Kirsti (2006) op. cit.
11. Article 91 and 92 of the Constitution of Liberia provide the procedures through which the Constitution can be amended.