In my September 23, 2011 post, I discussed the August 23, 2011 referendum in Liberia, conducted largely in preparation for the constitutionally mandated general elections scheduled for October 11, 2011. The referendum included proposals that, if passed, would directly affect the conduct and outcome of the elections: a measure to amend the residency requirement for presidential candidates, and a measure to eliminate the absolute majority rule for legislative elections (also known as Proposition 4).
With election day approaching, I thought it appropriate to provide an update on key recent developments regarding these issues.
One notable development involved the question of whether or not Proposition 4 received sufficient votes in the August 23 referendum. Proposition 4 sought to amend art. 83(b) of the 1986 Liberian Constitution to require that elections to public office be won by a simple majority, instead of by an absolute majority as had previously been the case. After tabulating the referendum votes, the National Elections Commission (NEC) announced that all proposals in the August 23 referendum, including Proposition 4, had failed to garner the backing of two-thirds of the registered voters who took part in it, the minimum level of support needed to amend a constitutional provision.
The Unity Party (the ruling party in Liberia) quickly mounted a legal challenge, which led to the Supreme Court overturning the NEC’s decision. At issue was the manner in which the NEC counted the votes cast in the referendum. In its announcement of the referendum results, the NEC claimed that a total of 615,703 votes were cast, of which 364,901 were in favor of Proposition 4, 174,469 were opposed, and 76,333 were invalid. The NEC included the invalid votes in tabulating the referendum results. The Supreme Court found that the NEC’s means of tabulating the votes were defective. The Court held:
… the inclusion of the invalid votes by the respondent (NEC) in the final tabulation of votes to determine the two third votes [sic] required under article 91 of the constitution of Liberia for the purpose of ratification of the propositions to amend said organic document was in contravention of the laws applicable to the conduct of votes as required to general and presidential elections[,] by- elections or election for the conduct of a referendum. Consisted [sic] therewith, the invalid votes included by the National Election Commission (NEC) to determine by [sic] the full outcome of the referendum conducted on August 23, 2011 throughout the country are hereby set aside and ordered deleted for the full outcome of the referendum.
With the invalid votes eliminated, the measure was able to obtain the minimum support needed, with over 5,000 votes in excess of the two-thirds backing of the votership required under the Constitution.
The second interesting development involved the issue of the residency requirement for presidential candidates. Art. 52(3) of the Liberian Constitution specifically requires that a person who wishes to run for President must reside in Liberia for at least ten years immediately preceding the election.
In the last election season, held in 2005, a temporary reprieve allowed candidates, including President Ellen Johnson Sirleaf, the incumbent president, who fled Liberia due to the civil war, to stand for election. This was accomplished through a temporary suspension of art. 53(3) on the basis of the 2003 Comprehensive Peace Agreement (CPA) (art. XVIII) and the Electoral Reform Law of 2004 (§ 2), albeit through an unconstitutional method.
The current election cycle saw an attempt at a permanent solution to the residency requirement issue. The first attempt came in the August 23 referendum in which a measure seeking to amend the provision and reduce the residency requirement by half was put forward. However, the measure failed to garner the support of two-thirds of the referendum’s registered voters, and this outcome was maintained even after the Supreme Court’s decision regarding vote counting.
Soon after the referendum’s outcome was confirmed, a petition challenging the eligibility of President Sirleaf and five other candidates to stand for election was filed in the Supreme Court, which led to the second and what appears to be a permanent resolution of the matter. Petitioners in the case contended that these candidates, including President Sirleaf who lived abroad before her 2005 election to office, did not meet the minimum residency requirement to stand for election. On October, 5, 2011, the Supreme Court dismissed the petition and cleared President Sirleaf and others to compete in the October 11, 2011 elections. The Court held:
It is our opinion that the framers of the 1986 constitution could neither have contemplated nor intended that Liberians faced with the state civil crisis be resident because at some point in the future they may want to run for the office of president.
These two recent legal developments will undoubtedly affect the conduct as well as the outcome of the upcoming elections.
Here at the Law Library of Congress, we will keep monitoring the Liberian elections. Stay tuned!