SPEECH DELIVERED BY CLLR. T. NEGBALEE WARNER, SENIOR PARTNER, HERITAGE PARTNERS & ASSOCIATES, LLC., & FORMER DEAN OF THE LOUIS ARTHUR GRIMES SCHOOL OF LAW, UNIVERSITY OF LIBERIA

AT PROGRAM MARKING LAW DAY CELEBRATION HELD AT THE EJS MINISTERIAL COMPLEX TUBMAN BOULEVARD, OLDEST CONGO TOWN MONTSERRADO COUNTY, LIBERIA

MAY 5, 2023

 

Her Honor, Sie-A-Nyeneh Gbour Yuoh, Chief Justice of the Honorable Supreme Court of the Republic of Liberia;

Associate Justices of the Honorable Supreme Court of Liberia

Former Chief Justices and Former Associate Justices of the Honorable Supreme Court of Liberia;

Her Honor Nancy Sammy, President of the National Association of Trial Judges of Liberia, and Officers and Members of the NTJAL;

Cllr. Sylvester Rennie, President of the Liberia National Bar Associations, and officers of the LNBA;

Cllr. Dr. Jallah Barbu, Dean of the Louis Arthur Grimes School of Law, University of Liberia (UL);

Platform Guests, Fellow Lawyers Students at law

Distinguished Ladies and Gentlemen:

Three days ago on May 2, 2023, I received and accepted the invitation of the Leadership of the Liberia National Bar Association (LNBA) to serve as the Keynote Speaker of this auspicious occasion marking the LNBA 2023 Law Day celebration on the theme: Episodes of Electoral Violence and Prospects for Constitutional Democracy in Liberia.”

Despite the obvious time constraint presented by the short notice and my limited practice of elections law, I gladly accepted the invitation because the theme is topical and grounded on constitutional law which every lawyer engages with every day, and must remain engaged with throughout his/her practice.

Episodes of electoral violence come in various forms and shapes, including physical, verbal, and psychological. They have also been seen in varying degrees in nearly all our recent elections, and this is worth bearing in mind as we approach the October 10, 2023 elections.

Fellow colleagues, the October 10, 2023 polls are significant for a number of reasons, including the fact that they represent the first post-war general elections to be solely managed by Liberians. We have heard and read about some confusions, disputes and clashes here and there, but overall the electoral process has been good thus far. We must therefore applaud the National ElectionsCommission and the Government of Liberia as well as all Liberians and our international partners for the good job done thus far in managing the electoral process and ensuring a violence-free electoral process.

But risks of electoral violence remain. These risks should engage our attention. Hence, the timeliness of the theme of this year Law Day.

Distinguished ladies and gentlemen, violence is not inevitable nor is it generally spontaneous. I also reject the idea that people engage in violence mainly because they choose to. Instead, I believe violence is caused. The cause may be immediate, but most often it consists of a series of actions and inactions. Hence, electoral violence—like political violence, military violence, or violence of any kind—is caused by the little things and big things we do or fail to do as a people, a government, an electoral body, a legislature, a judiciary, or an association of people such as the Bar. A study carried out by an organization called the American Friends Service Committee (AFSC) into what it called “Electoral Violence: Causes and Prevention”, found that “electoral violence is more likely when…political systems are based on patronage and clientelism” and when “Electoral management bodies, such as electoral commissions, are weak.” www.afsc.org/electroalviolencereportOther studies have similarly linked electoral violence to preventable causes known and ought to be known by those responsible to prevent them.

For these reasons and more, I have opted to discuss the risks and actual cases of electoral violence in the context of how to identify and address or preventing such electoral violence, as contrasted with describing the awful details of destruction caused, properties damaged, and lives lost on account of electoral violence.

When and where the rule of law is promoted, better communications had, and the right of every person is recognized, the causes of electoral violence are diminished and the prospects of constitutional democracy are substantially enhanced. Stated in other words, constitutional democracy based on the rule of law is in part both a cure and a prevention of electoral violence. Accordingly, I will focus my brief remarks on the topic: Preventing Electoral Violence through Demonstrated Commitment to Constitutional Democracy.

Distinguished ladies and gentlemen, constitutional democracy is premised on and sustained by free and fair elections, which in turn are based on the rule of law. Indeed, democracy, as a government bythe people, cannot exist unless by and through the existence and conduct of elections. It is for this reason that Article 1 of the Liberian Constitution, like similar provisions in the constitutions of many democracies- declares that:

1. all power is inherent in, and all free governments are instituted by, the people; and

     2. that “in order to ensure democratic government which responds to the wishes of the governed, the people shall have the right …in such manner as provided for under this Constitution, to cause their public servants to leave office and to fill vacancies by regularelections”.

Free and fair periodic elections are therefore the life blood of a constitutional democracy. In order to constitute the free, fair and democracy-sustaining elections “provided for under this [Liberian] Constitution”, the elections must conform to the fundamental principles and specific provisions setforth in the Constitution. Some of the key principles set forth in the Constitution include thefollowing:

1. “All persons are equal before the law and are therefore entitled to the equal protection of the law.” Art. 11 (c);
2. “No person shall be held in slavery …nor shall any citizen of Liberia nor any person resident therein deal in slaves or subject any other person to forced labor, debt bondage, or peonage”;
3. “Every person shall have the right to be registered in a constituency, and to vote in public elections ONLY in the constituency where registered…provided that such person shall have the right to change his voting constituency as may be prescribed by the Legislature.” Article 80 (d);
4. {E} every constituency shall have as close to the same population as possible”. Article 80 (e);
5. “The Elections Commission shall have the Power to examine into and order certified audits of the financial transactions of political parties and independent candidates and their organization” and the audit shall be “by a certified chartered public accountant, not a member of any political ”

I submit to you that the legality and democratic quality of all our national elections are proportional to their level of compliance with the fundamental principles and specific mandates of the Constitution. The democratic quality of elections diminishes as the elections fail one or more of the key principles and requirements of the Constitution. I further submit to you that the upcoming October 2023 elections might rank as one of the least constitutional, democratic, legal, and/or free and fair elections unless all Liberians, including especially this Bar and the Bench, contribute to promoting enforcement of and compliance with the explicit and implied requirements of the constitutional principles of equality under the law, one man, one vote, prohibition against slavery, and free and fair competition/process.

I will discuss at least three areas in which we lawyers-the bench and bar- have a critical role to play in supporting all other stakeholders to promote the integrity and legality of the upcoming elections as some positive ways of preventing electoral violence and enhancing constitutional democracy in Liberia.

1          Combatting Voters Trucking that Degrades Voters and Votes

It is an open secret that the phenomenon of transporting significant number of voters from one area to another area solely for the purpose of having them register and vote in the area for the transporter is widespread, and seems accepted by Liberians. What does not appear to be appreciated, and ought to be noted, is that such practice is unlawful and/or unfair.

Trucking of voters is by its nature at the request of and for the benefit of the transporter. It is therefore not much different from human trafficking, which is defined by Black’s Law Dictionary as “the illegal recruitment, transportation, transfer, harboring, or receipt of a person…with the intent to hold the person captive for or exploit the person for labor, services, or body part.” Black’s law Dictionary, 10th ed (2009). The definition and nature of human trafficking indicate that there are three (3) key elements to a finding of human trafficking:

1. Transportation of person(s)
2. “intent to hold the person captive OR exploit the person”; and
3. The ultimate goal of transporting the person is for the person’s body part, services, or right, including the right to vote.

Certainly, each of the three (3) essential elements of human trafficking are present in the current mass trucking or transportation of voters by candidate(s) for obtaining their services-which are basically to register where they are transported and then return to vote for the candidate(s). To those who may argue that the practice of voters trucking does not equate to trafficking because the voters transported do agree, the response is that consent is not a defense to the offense of trafficking. If consent was a defense, we would not have problem with a poor person being transported to donate their body parts. Further, and even if consent was a defense, it should be noted that he law focuses on effective, free consent, and not consent that is coerced by monetary reward or an indecent promise to keep a public office.

Obviously, a non-insignificant number of the voters trucked have no effective choice in being transported and/or to register and vote where they have been transported. And if there is still any doubt about the absence of effective and free choice by the voters trucked, the doubter(s) should consider evidence of the additional, related practice whereby every transporter of voters reportedly (i) seizes the voting card(s) of the transported; and (ii) also requires proof of the transported person having voted for him or her before paying the person the balance of the consideration-for procuring the person’s vote.

I would think that a person seizing another person’s voter registration card is no different from seizure of a passport in other human trafficking cases. I also think that the practice of requiring poof of voting is sufficient evidence of the person being exploited for their voting services.

In summary, trucking of voters is nothing but trafficking of voters, which is a form of human trafficking. It is also a form of modern-day slavery, which is prohibited by Article 12 of the Liberian Constitution, which says that “no person shall be held in slavery …nor shall any citizen of Liberia nor any person resident therein deal in slaves or subject any other person to forced labor, debt bondage, or peonage”.

Voters trucking is human trafficking. The sooner we start to see and treat trucking of voters for what it is-i.e., as an act of human trafficking and modern-day slavery- the sooner we will appreciate the need to deal with it urgently and holistically. Besides investigating and prosecuting it as a criminal offense, one way to combat voters trafficking it is to make it less profitable by disabling the transporter/trafficker from being able to know how the transported voters actually voted. This can be achieved simply by prohibiting the carrying in the pooing place of phone or any other electronic device that is likely to be used to take photo of completed ballots. Another well-established means to deal with voters trafficking is to implement the procedure the Liberian Constitution established in part to deal with the menace of this unlawful practice-i.e. establish appropriate, stringent procedures for change of constituency. The regulation of change of constituency is mandated by Article 80 (c) of the Liberian Constitution, which states that a “citizens shall have the right the right to change his voting constituency as may be prescribed by the Legislature.”

2.             Illegal Campaign Financing Violates the Principle of Free and Fair Elections

 Contributing to, but independent of voters trafficking is the massive commercialization of the Liberian electoral process by uncontrollable and unaudited flows of huge sum of money to campaigns and candidates. It is again no secret that some candidates spent more than ten (10) times their annual income, as disclosed and presumably taxed. Almost all political parties also spent far beyond their known means, and some political parties spent tens of millions of dollars with no indication of the source(s) of such funds.

Our constitution clearly recognizes the ills and destructive effects of illegal campaign financing, and provides some good measures to combat this menace. Article 82 (c) of the Constitution provides that “the Elections Commission shall have the Power to examine into and order certified audits of the financial transactions of political parties and independent candidates and their organization” and the audit shall be “by a certified chartered public accountant, not a member of any political party.”

The Liberia Anti-Corruption Commission (LACC) also has within its mandate the right to investigate unknown (and presumably illegally sourced) campaign funds received and/or used by candidates.

Unfortunately, there is hardly any evidence of investigation(s) that were ordered conducted and/or carried out into the campaign finances of candidates and political parties. I am also not aware, and have no evidence, of a public audit ever commissioned or conducted into the finances of a political party by the National Elections Commission pursuant to its constitutional mandate and right.

Illegal campaign financing undermines the integrity of electoral processes, and offends the principle of free and fair elections. Where money is used to get an unfair advantage in any contest, it undermines fair competition. This principle equally applies in nearly all sports where fair-play rules are designed and implemented by sports management bodies to combat what we in Liberia commonly called “money violence” or “cash violence”.

3.             Upholding the Principle of One man, One Vote

 The principle of one person, one vote is the cornerstone of constitutional, representative democracy. It means equal value of every vote such that my vote has the same weight as your one vote; 500 votes are equal to another set of 500 votes in one area, and 20,000 votes in one area are similarly equal to 20,000 votes in another area. The other side of one man, one vote is equal representation, which means that, in representative democracy such as ours, a law maker represents the same population as much as possible. This means that where a population of 40, 000 has two votes when a population of 35,000 has one vote is unfair and unconstitutional for reason that the 40,000 has almost as twice the representation of the 35,000. (To be explained briefly).

To realize the principle of one man, one vote, the idea of constituency was developed and is established in the Liberian constitution. It is solely for the purpose of ensuring that every person is entitled to one vote, and that there is equal representation of people in the Legislature that Article 80 (e) provides that “every constituency shall have as to the same population as possible.” Provision similar to Article 80 (e) is found in Article 3 of the US Constitution, which states, in part, as follows:

“The Number of Representatives shall not exceed one for every thirty thousand, but each State shall have at Least one Representative”.

The principle of one man, one vote or equal representation was interpreted by the US Supreme Court in a case brought by voters of Fulton County in the state of Georgia Fifth Electoral District where a single congressman represented “from two to three times as many Fifth District Voters as are represented by each of the congressmen from the other Georgian congressional districts.” Claiming that “these population disparities deprived them… to have their votes for Congressmen given the same weight as the as the votes of others Georgians”, the voters asked that the challenged 1931 Georgian congressional apportionment statute be invalidated and the electoral authorities of Georgia be enjoined from conduction elections under the statute. Agreeing with the Georgian Fifth Electoral District voters, the US Supreme Court held that equality of votes and voting -one person, one vote- “means that, as nearly as practicable, one person’s vote in a congressional election is to be worth as much as another’s.” Wesberry v. Sanders, 376 U.S. 1 (1964).

The Court also concluded in Wesberry as follows: “While it may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution’s plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives. That is the high standard of justice and common sense which the Founders set for us.” Several decisions of the US Supreme Court before and after Wesberry have all held similarly. See, for example, Harris V. Arizona Independent Redistricting Commission, 578 U.S. (2016); and Evenwel v. Abbot, 136 S. Ct 1120 (2016).

Applied to Liberia, the limited case law on the principle of one man, one vote as reflected in Article 80 of the Constitution has been less than responsive. The first known case on the subject was brought by Cllr. Marcus Jones and others in 2010 wherein they asked the Supreme Court “to determine whether or not the Legislature can ignore or set aside the results of a national census conducted to determine population growth and movements in Liberia and at the same time apportion seats to counties rather than setting a threshold as mandated by Article 80 (d) of the 1986 Constitution?” Despite the clear and significant issue it raised, the Supreme Court dismissed the petition on ground of raising a political question.

The second case was Liberty Party v. NEC, (decided 14 June 2011) which was a petition for a writ of prohibition filed against the NEC reapportioning constituencies in all counties although the joint legislative resolution under which it was acting had decreed that all the existing constituencies be maintained and only nine (9) additional constituencies be added in only six

(6) named counties. The Supreme Court acknowledged at the beginning of its ruling that the 52nd Legislature attempted to set aside a threshold to enable the NEC “reapportion electoral constituencies for the conduct of the ensuing… elections, but to no avail” and “twice passed threshold bills, which were sent to the President but twice vetoed”. Notwithstanding the foregoing and the obvious fact that the joint resolution was intended to circumvent the establishment of the required threshold, the Supreme Court ruled that the Joint Resolution LEG: 002 (2010) was clear and needed no further statutory interpretation by the Supreme Court, and that the NEC, pursuant to the said Joint Resolution, was authorized  by the Legislature to reapportion all the constituencies inclusive of the newly created nine (9) constituencies.

In the third and most recently decided case on the same matter-In Re: The Constitutionality of the National Elections Commission Planned Conduct of the Voters Registration without the Demarcation of the Constitutional Electoral Constituencies, the Supreme Court held that while the NEC indeed has a duty under Article 80 (e) to reapportion constituencies, the said duty is not self-executing. The duty to reapportion constituencies can only be executed based upon the preconditions stated supra, viz, a concluded national Census Report, the Legislature’s threshold, then the NEC’s duty to reapportion the constituencies pursuant to Article 80 (e). The Court held that absent the preconditions, NEC is not at fault, and will not be enjoined.

Without attempting a critique of the decisions-which cannot be done meaningfully in these short remarks-it has to be noted that the Supreme Court’s decision in each case was formalistic, and not reflective of due regards to the significant constitutional issues raised. The decision in the first case is curious because there is hardly any justiciable matter than that asserting noncompliance with a constitutional mandate or determining the constitutionality of a given public act.

The second case is also very procedural in that the Court acknowledged the constitutional requirement for establishing a numerical threshold to be used by NEC to reapportion constituencies and that the joint resolution in question did not set such threshold, but only decreed the maintenance of existing constituencies and the addition of nine new ones not based on any precise numerical figure to ensure equal representation. Yet, the Court ruled that (i) “we will not pass on the legality of Joint Resolution LEG-002:”;  and (ii) the resolution “is clear on its face” and “this court has held that where the statute is clear on its face no further construction or interpretation is needed”. It does not seem to me that the focus was on the ambiguity of the resolution. Even if that was the sole issue raised by the petitioners regarding where reapportionment could take place, the implied issue that was also raised is whether constituencies could be established and/or reapportioned without establishing and faithfully adhering to the constitutional requirement for a numerical threshold that would ensure the population in each constituency be the same as in all others.

The third case is not much different from the others. Like the Liberty Party case, the Court correctly observed in this case that the precondition to the performance of NEC had not been done by those responsible-the Legislature. While this conclusion seems to indicate that NEC should therefore not engage or undertake a process for which the preconditions had not been satisfied, the Court declined to enjoin from doing commencing voter registration without established constituencies, notwithstanding the admitted and explicit recognition that the foundation for such voters registration has not been laid. This particular decision of the Court could be interpreted to excuse any administrative agency from performing a constitutional or statutory duty if a precondition to the performance of the agency has not happened irrespective of the cause or motivation for the nonperformance. It could also encourage the Legislature and other duty bearers to avoid doing what will trigger implementation of a legal requirement they do not wish to be implemented.

In any case, the point is that having electoral constituencies not based on equal number of voters as much as practicable is illegal, and unconstitutional, irrespective of who is at fault. A constitutional court, as is the Supreme Court, may well have been expected by others to have used one of the previous decided cases to see how a remedy could have been fashioned to address the evident and continuing illegality. I could also go on to mention exclusionary practices, rules and laws like the Code of Conduct. Of particular note is the Code of Conduct, which jurisprudence has gone from a full throttle affirmation of the two-year prior resignation requirement to an “egregious breach” test, coupled with a reduction of the period of the prior resignation from two years to one year, and now to a few months. While I have to avoid any detailed discussions about the Code of Conduct for reason of not running afoul of sub judicie rules, the general point is that we as a people and particularly lawyers ought to affirm and protect the constitutional principles of equal protection, equal representation, inclusion, and fairness through liberal construction of the applicable constitutional provisions while rejecting or giving strict interpretation of discriminatory statutes and rules that benefit mainly a few especially those make such laws and rules.

Distinguished ladies and gentlemen, for constitutional democracy to thrive, it would require the collective effort of everyone, particularly for us lawyers, who are presumed to be the gatekeepers of society. A lot depends on our judgement and inputs – our sense of equity, our advocacy for liberal or strict interpretations of law, and our support for sound public policy.

Apart from those in the active practice of law, some of us lawyers are legislators as well as judges and should have it in us, for the sake of upholding the constitution, to equitably put up the fight in our various areas of influence in order to ensure constitutional democracy is sustained based on rule of law, inclusion, and equal treatment under the law.

Constitutional democracy is one of justice and fairness; it gives power to the people; it upholds people’s rights to life, liberty and property; it makes mother Justicia proud. With hearts and hands, lawyers must defend this democratic space; we must put our education and expertise at the service of the country. We must not bend the law and think constitutional democracy will blossom seamlessly.

In the words of the poem “Songs of the Deal” by our own Edwin J. Barclay, “When they see their prospects open, first and foremost, – on they rush!” Let us rush at the prospect of upholding constitutional democracy in our beloved country, as it is that silver lining – the path of which we must follow.

I thank you.