A. Introduction

Please find below the ANC’S positions on the proposed amendments adopted by the recently concluded National Constitution Conference (Conference) in Gbarnga.


By way of background, the Constitution Reform Commission (CRC), whose members were appointed by the President and charged with the responsibility of overseeing a process that would lead to reforms to our Constitution, presented delegates at the Conference with 25 proposed amendments. The CRC claims that the proposed amendments were the result of consultations it had in all 73 legislative districts of Liberia and the Diaspora.

We believe that there are many reasons to question the process the CRC used to come up with the 25 proposed amendments it presented the delegates—whether the process as designed was capable of producing results that broadly reflected the views of Liberians on the key issues they would like to see addressed as part of a constitutional amendment process. There are also many reasons, we believe, to question the way in which the delegates who voted on the proposed amendments were chosen and the way the voting process was conducted in Gbarnga, and we will raise whatever questions we may have separately.

For now, though, we want to focus on presenting you our position as a party on each of the proposed amendments presented to the delegates at the Conference in Gbarnga and the rationale for every position we adopt.

After each proposed amendment or after each group of related proposed amendments, we then state the ANC’s position and the rationale for our position.

One final point: We found most of the proposed amendments to have sound policy rationale and thinking behind them. However, we should caution all of us against the belief that all we need to do to solve a problem is to assert the problem or its solution as a constitutional provision. Merely stating a policy goal as a constitutional provision does not, standing alone, guarantee that we can attain that goal as a society. To achieve it, we must work hard at devising and enacting the right mix of policies and have the political will to stick with them.

Our Constitution of 1847 and our current Constitution were not perfect documents but they did a good job in laying out the fundamental rights of Liberians and the duties and obligations their Government owes them. The failures we have suffered as a state and the massive economic and development challenges we still face today are therefore due to no fundamental defect in the Constitutions that have governed us. The setbacks we have suffered and the immense development challenges we face today are simply a result of the failure of Government, not of the Constitution. So while we believe that there may be a need to include in our Constitution the ideas expressed in some of the proposed amendments, it is worth pointing out that doing so is only half of the battle. The greater fight is in getting to power the right Government that can follow through with devising and implementing policies that give life to those principles we hold so dear that we include them amongst the rights and obligations enshrined in our Constitution.

B. The Proposed Amendments and the ANC’s Positions/Rationales

1. REDUCTION OF THE PRESIDENTIAL TERM OF OFFICE FROM SIX TO FOUR YEARS

2. REDUCTION OF THE SENATORIAL TERM OF OFFICE FROM NINE TO SIX YEARS

3. REDUCTION OF TERM OF OFFICE OF REPRESENTATIVES FROM SIX TO FOUR YEARS

ANC’S POSITION & RATIONALE:

WE AGREE with all three proposed amendments regarding reductions in terms of office for the President, Senators, and Representatives. The democratic goal of popularly elected government is best served when, as frequently as possible, people can pass on the performance of their elected leaders by subjecting them to the scrutiny of the election process. Terms of office of nine years (for Senators) and six years (for Presidents and Representatives) simply do not provide people the opportunity to frequently review the performance of their elected leaders by way of the election process.

4. PRIVATE PROPERTY OWNERSHIP SHOULD INCLUDE MINERAL RESOURCES

5. PROPERTY OWNERS ON WHOSE LAND MINERALS OR NATURAL RESOURCES ARE FOUND SHOULD SHARE THE BENEFITS ACCRUED BY GOVERNMENT AND BE PART OF THE NEGOTIATIONS

ANC’S POSITION & RATIONALE:

WE AGREE in principle with Propositions 4 and 5. Subject to the principle expressed in Article 7 of our Constitution that the country’s wealth should be used for the benefit of all of its people, we agree with the general proposition that owners of property containing mineral or other natural resources should in some way directly share with the Government the benefits gained from the exploitation of those resources. The exact formula to determine how to compensate property owners while keeping faith with the directive of the Constitution to use the country’s natural resources for the benefit of all of its people is something that can be decided with the aid of economic and other experts. We are not sure what is meant by that such property owners should be “part of the negotiations.” We do, however, agree with the general notion that a person may assert and seek to protect his or her property interest in any land or real property at any time.

6. PERSONS OF NON-NEGRO RACE SHOULD NOT BECOME CITIZENS

ANC’S POSITION & RATIONALE:

WE AGREE. The historic imperative behind the non-negro clause in the citizenship article in the Constitution is still relevant today. There are still reasons for Liberia to keep faithful to her founding mission: to serve as a refuge or haven for Black people fleeing persecution from anywhere in the world or simply looking for a homeland they can call their own.

7. DUAL CITIZENSHIP SHOULD NOT BE ACCEPTED IN LIBERIA

ANC’S POSITION & RATIONALE:

WE DISAGREE with the proposed amendment abolishing dual citizenship. In a globalized world where multi-citizenship is increasingly common and necessary for a person to achieve his full potential in whatever society he may find himself, Liberia shortchanges herself and those of her children compelled by various factors to adopt the citizenship of another country if, on account of that, she denies them full participation in the life of their country of birth.

8. DUAL CURRENCY SHOULD BE ABOLISHED IN LIBERIA; THE LIBERIAN DOLLAR SHOULD NOT BE REJECTED AS TEAR TEAR

ANC’S POSITION & RATIONALE:

WE AGREE that the Liberian dollar should under no circumstance be rejected as legal tender in Liberia; we also favor a single currency economy but believe we should first put in place policies that would ensure our economy can survive the transition to a single currency (Liberian Dollar) economy.

However, we do not believe that the question of dual currency is something we need to include in our constitution—making it a constitutional matter may tie the hands of future policy makers who may have to change policy on currency issues to deal with particular economic emergencies and may not have the luxury of time to amend the Constitution before effecting a change in policy.

9. THE VICE PRESIDENT SHOULD NOT PRESIDE OVER THE SENATE BECAUSE OF THE PRINCIPLE OF SEPARATION OF POWERS

ANC’S POSITION & RATIONALE:

WE DISAGREE. As President of the Senate, the Vice President plays the crucial role of casting the tie-breaking vote when the Senate is split fifty/fifty on an issue. Other than that, the Vice President’s role as President of the Senate is largely ceremonial. He or she takes no part whatsoever in the key law-making function of the Senate.

The proposition that Vice President should not serve as President of the Senate because by doing so he violates the “principle of separation of powers” ignores the fact that a complementary and necessary counterweight to the principle of separation of powers is the principle of “checks and balances,” which allows one branch of government a limited role or say in another branch’s exercise of its core functions.

For example, making law is a core function of the Legislative Branch. The principle of checks and balances allows the President, however, to check the Legislature’s exercise of its core law-making core function by the use of his or her veto power. That is why when the President vetoes a bill, we do not say he or she is violating the separation of powers principle and infringing on the law making duties of the Legislature.

Similarly, it is the core function of the President to appoint cabinet ministers and ambassadors. However, our Constitution by design allows the Senate to check the President’s exercises of his or her appointment powers by requiring that nominees for cabinet and other positions be approved by the Senate. This is why when the Senate rejects a person nominated by the President for a cabinet or other position we do not say the Senate is violating the principle of separation of powers and infringing on the appointment powers of the President.

It is for the same reason that it is wrong as a matter of constitutional law to say that the Vice President violates the principle of separation of power when he sits as President of the Senate. The Constitution by design establishes the Vice President as President of the Senate, where he has the very limited role of breaking a tie in the Senate and thus checking the Senate’s ability to create deadlocks that could stymie the functioning of government. This is a design that works well; there is no need to tamper with it.

10. THE CHIEF JUSTICE SHOULD BE ELECTED

ANC’S POSITION & RATIONALE:

WE DISAGREE. Of all of the judges in Liberia, the Chief justice, who is the top judge in the land, should be above politics. Subjecting the Chief Justice or any other justice of the Supreme Court to elections and hence to the political process could have far reaching consequences for the independence of the judiciary. Political calculations are more likely to be factored into the decisions of judges who gain their office by way of elections rather than by appointment. A judge who needs popular support to win an election may rule a certain way in a case not because he or she believes that is what the law requires but because publicly sentiments favor a particular outcome. Election of judges also raises the specter of money, which is so part and parcel of politics, corrupting the judiciary. Elected judges would need money to run campaigns and the independence of judges in cases involving their campaign donors could, fairly or unfairly, be called into question.

11. SUPERINTENDENTS, COMMISSIONERS, MAYORS, AND CHIEFS SHOULD BE ELECTED

ANC’S POSITION & RATIONALE:

WE AGREE. Devolution of power to the local level and providing people the right to directly elect their leaders is the best way to ensure a leadership that is accountable, and thus responsive, to the people.

12. RESPECT AND RECOGNITION FOR PERSONS WITH DISABILITIES SHOULD BE ENSHRINED IN THE CONSTITUTION AND EDUCATION AND JOB OPPORTUNITIES ACCORDED THEM

ANC’S POSITION & RATIONALE:

WE AGREE that as a country and a people we must enact and implement policies that accommodate and provide for the disabled, and that we should consider how to give expression in our Constitution to a national commitment to devote special attention to, and accommodate the needs of, the disabled.

13. ELECTION COMMISSIONERS SHOULD BE ELECTED AND NOT APPOINTED BY THE PRESIDENT

ANC’S POSITION & RATIONALE:

WE DISAGREE. We appreciate and understand the reasoning behind this proposed amendment, which is to ensure that we have independent and fair election commissioners. However, we believe that electing election commissioners will produce more harm than good and possibly even corrupt the election process. Electing election commissioners effectively means that people (election commissioners) who should be monitoring the election process as neutral parties would themselves be participants in the process. Moreover, election commissioners are likely to run for office under the banners of various parties. We could thus easily have election commissioners who have run on the banner of one party monitoring elections involving candidates from an opposing party. This could certainly create the appearance, if not the reality, of bias by election commissioners who will be perceived as partisans and unfair, something that could undermine public confidence in our election process.

We believe that we can achieve the goal of having independent and fair election commissioners without subjecting them to partisan and divisive elections. We can do so, for example, by limiting the President’s powers to appoint all of the election commissioners. The President may appoint two of the five election commissioners; the two opposition parties that achieved the next highest number of votes in the preceding election could each appoint one commissioner each and the other commissioner could be appointed by civil society groups. Also we could require that all election commissioners should not be registered members of any political party. We can also maintain the requirement that election commissioners are appointed for fixed 5 year terms during which they cannot be removed by the President or anyone else, except for proven criminal or unethical conduct. Importantly, we can do all of this without even amending the Constitution. Article 89 of the Constitution provides for the establishment of the Elections Commission as an autonomous agency of Government. Nothing in Article 89 gives the President the power to appoint election commissioners. Instead, Article 89 expressly provides that “The Legislature shall enact laws for the governance” of the Commission. Accordingly, it is the Legislature that passed a statute granting the President the power to appoint all election commissioners and the Chairperson of the Elections Commissions. The same Legislature can pass a statute repealing the old statute and limiting the President’s powers to appoint election commissioners.

14. CONCESSION NEGOTIATIONS SHOULD INCLUDE THE LOCAL AUTHORITIES AND CITIZENS OF THE LOCALITY IN WHICH THE NATURAL OR MINERAL RESOURCE IS SITUATED

ANC’S POSITION & RATIONALE:

As we have stated above in response to Propositions 4 & 5 and as we state below in response to Proposition 17, we believe that subject to the general principle expressed in Article 7 of the Constitution that the Country’s natural resources should be exploited and used for the benefit of all Liberians, the Government should share with the owners of property on which minerals or other natural resources are found the gains derived from the exploitation of those resources. As we have also stated, we agree with the general notion that a person may assert and seek to protect his or her property interest in any land or real property at any time and the Government should take those interests into account when negotiating any agreement involving the exploitation of land or mineral resources. We should, however, give serious thoughts to striking the right balance between the extent to which we want to constitutionally protect people’s property rights by having them as parties to all negotiations with investors, and the extent to which we may scare off potential investors wary of the burdens and legal complexities and uncertainties that result from having to negotiate with multiple individuals or entities, with each having potentially competing or conflicting interests, before entering agreements with Liberia.

15. CONSTITUTIONAL PROVISIONS SHOULD PRIORITIZE THE PARTICIPATION OF LIBERIANS IN ECONOMIC ACTIVITIES AS REFLECTED IN ARTICLE 7

ANC’S POSITION & RATIONALE:

Article 7 of our Constitution provides that:
“The Republic shall, consistent with the principles of individual freedom and social justice enshrined in this Constitution, manage the national economy and the natural resources of Liberia in such manner as shall ensure the maximum feasible participation of Liberian citizens under conditions of equality as to advance the general welfare of the Liberian people and the economic development of Liberia.”

The ANC agrees that as a Country we should consider how to include provisions in the Constitution that give Article 7 teeth particularly when it comes to Liberianizing our economy,

16. CHILDREN’S RIGHTS SHOULD BE REVISITED SO THAT IT DOES NOT INTERFERE WITH PARENTAL DUTY TO DISCIPLINE THEIR CHILDREN

ANC’S POSITION & RATIONALE:

We do not understand what this Proposition means and thus cannot state a position on it at this time.

17. TRADITIONAL PEOPLE SHOULD OWN THEIR OWN LAND AND BE A PARTY TO ANY NEGOTIATIONS WITH INVESTORS OR CONCESSIONAIRES ON SAID LAND

ANC’S POSITION & RATIONALE:

We agree that “traditional people” should have ownership rights to lands they have occupied through the years. As we stated in our position on Propositions 4 & 5, subject to the principle expressed in Article 7 of the Constitution that the country’s wealth should be used for the benefit of all of its people, we agree with the general proposition that owners of property containing mineral or other natural resources should share the benefits gained from the exploitation of those resources by the government. We are not sure what is meant by that such property owners should be “part of the negotiations” or “party to any negotiations.” We do however agree with the general notion that a person may assert and seek to protect his or her property interest in any land or real property at any time and the Government should take those interests into account when negotiating any agreement involving the exploitation of land or mineral resources. However, as we have said before, we should give serious thoughts to striking the right balance between the extent to which we want to constitutionally protect people’s property rights by having them as parties to all negotiations with investors, and the extent to which we may scare off potential investors wary of the burdens and legal complexities and uncertainties that result from having to negotiate with multiple individuals or entities, with each having potentially competing or conflicting interests, before entering agreements with Liberia.

18. THE CONSTITUTION SHOULD ENSURE WOMEN’S PARTICIPATION IN GOVERNANCE AND NATIONAL AFFAIRS

ANC’S POSITION & RATIONALE:

WE AGREE. Despite the command of Article 11(c) that all people, including women, should enjoy the equal protection of the law, we believe that because of cultural and other reasons, women have been at a historic disadvantage when it comes to fully participating in national governance. We are thus open to seeing how our Constitution can compensate for or prevent the effects of cultural practices that have so disadvantaged women and thus ensure the fullest participation of women in national affairs and governance.

19. THE CONSTITUTION AND ALL LEGAL DOCUMENTS SHOULD CARRY THE PRONOUNS “HE/SHE”

ANC’S POSITION & RATIONALE:

WE AGREE. It is simply time to promote gender equity in every way possible.

20. AGE OF MARRIAGE FOR GIRLS SHOULD BE AT LEAST 18 YEAR

ANC’S POSITION & RATIONALE:

The policy objective behind this proposition, which is to prevent the early marriage of girls in their preteen or early teen years in certain segments of our society, is laudable. To the extent we cannot achieve this same objective by passing statutes, we may consider appropriate amendment to the Constitution. In order to avoid the appearance, if not the reality, of discriminating on the basis of sex or gender, any statute or amendment to this effect, should also speak to the age of marriage for boys.

21. WOMEN SHOULD HAVE ACCESS TO EDUCATION EQUAL ECONOMIC AND SOCIAL OPPORTUNITIES (EMPLOYMENT AND EDUCATION)

ANC’S POSITION & RATIONALE:

As stated above in response to Proposition 18, we are aware that despite the command of the equal protection clause of Article 11(c) of the Constitution, which effectively guarantees equal opportunity for all irrespective of gender, women, by virtue of our culture and tradition, have been at a historic disadvantage when it comes to equality of opportunity. We thus agree that as a country and a people we should do all in our powers to grant women equal access to economic and social opportunities by first enacting and implementing appropriate policies and, where necessary, by constitutional prescriptions.

22. THE CONSTITUTION SHOULD GUARANTEE INHERITANCE RIGHTS FOR TRADITIONAL WOMEN

ANC’S POSITION & RATIONALE:

WE AGREE. Too many women are robbed of their property rights, including rights to property improved and developed by the sweat of their brow, because of the operation of traditional inheritance practices in various segments of our society. Anything we can do, including appropriate amendments to the Constitution, to prevent this travesty is most welcomed buy us.

23. PEOPLE IN PROLONGED CO-HABITATION SHOULD ENJOY MARITAL STATUS

ANC’S POSITION & RATIONALE:

We understand that the reasoning behind this proposition is to prevent the all too frequent circumstance where one party to a relationship (usually a woman) who, after investing all of her time, energy and resources to the material development of the other party to the relationship, is abandoned by the other party without any legal recourse. We agree that to the extent there are laws now on the books that deal with this problem, i.e. recognizing so-called “civil” or “common law” marriages, they need to be rigidly enforced. If there are no such laws, we should work to enact them. Amending the Constitution may be considered as a last resort, but we should be wary of turning the Constitution into a legal code.

24. LIBERIA SHOULD BE A CHRISTIAN NATION

ANC’S POSITION & RATIONALE:

WE DISAGREE. We understand and appreciate the historic role Christianity played in the founding of our country. We are aware of the role Christian churches continue to play in the development for our country through the provision of education and health care to people all over Liberia. However, we strongly believe that including language in our Constitution that “Liberia should be a Christian Nation” is destructive of our body politic as it would suggest that Christians occupy a special status in our Country vis-a-vis people of other faiths and religions. This would violate the equal protection clause of Article 11 as well as the separation of religion and state clause of our current Constitution of Article 14. Moreover, we only need to look at other countries, including ones in Africa, that are torn apart by sectarian strife, to appreciate what can happen when we throw the very incendiary device of religious division onto the already highly combustible mix of social problems we face today. Also, simply because there may be majority support for designating Liberia a “Christian Nation” in the Constitution does not make it the right thing to do. One of the basic tenets of a constitutional democracy is that there are certain rights so sacred that they should not be subjected to the whims and caprices of a prevailing majority. We thus carve out those rights, which include the right to freedom of religion, and put them in the Constitution where they are supposed to be beyond the reach of any majority. The fact that one may be able to muster the two thirds vote required by Article 91 to amend the Constitution in a referendum and trample on those rights simply means that we have a tyranny of the majority, which is as dangerous as the tyranny of a single dictator.

Imagine it this way: what if, by virtue of demographic and other changes, today’s minority becomes tomorrow’s majority and wants to use its majority power to amend the Constitution to essentially designate its religion as the official religion of Liberia. How would members of today’s majority feel?

25. CUSTOMARY LAWS SHOULD BE MADE CONSTITUTIONAL

ANC'S POSITION & RATIONALE:

We understand the thinking behind this Proposition, which is to harmonize customary laws with civil law, or laws based on western tradition. We agree with this goal in principle. However, we must keep in mind that there are certain customary laws that simply cannot comport with the basic precepts and principles that undergird or Constitution. Accordingly, where there is no conflict between a particular customary law and the Constitution, we have no objections to that customary law being “made constitutional.”

 

 

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