• By: Edmond Remie Gray (Op Ed)

The Residency Clause, Dual Citizenship, and Code of Conduct Laws Are Legally Inadequate to Stop Anyo

The Republic of Liberia was established on the basis of self-protectionism. Unlike most nations on the continent of Africa, Liberia was not colonized per se. By the close of the 18th Century, Great Britain, Spain and Portugal had lost their colonial prowess over the United States and South America. Equally, Holland was having troubles maintaining its grip over the East Indies.

Nonetheless, between the end of the nineteen and early twentieth century (1880-1900), Liberia began facing a new threat of colonial annexation by Britain and France, in a new wave of imperialism campaign by European powers, in the so-called “Scramble for Africa.”

However, the persistent threat by Britain and France to annex Liberia, created avenues for the so-called resettlement of former slave-descendants by the American Colonization Society (ACS).

In his books, “Liberia: The Evolution of Privilege” (Cornell University Press) and “Liberia: The Quest for Democracy” (Indiana University Press), Professor J. Gus Libenow argued that, had the American Colonization Society (ACS) not gone in to rescue Liberia in the 1800s, the country would have been walloped by English and French Colonial powers that were frantically scrambling over Africa at the time. Libenow’s justification for saying that is owing to the fact that Liberia’s neighbors to the Southwest and Northeast of Liberia (Sierra Leone, Guinea, and the Ivory Coast) had all fallen under colonial rules.

On the other hand, in his book, “The Practice of Indirect Rule in Liberia,” Nigerian-born Professor Monday Benson Abasiattai argued that, the symbolism of the ACS’s intervention in Liberia is due to the fact that the United States did not want to directly involve in the protection of countries caught up in the European conquest of Africa. As a result, it indirectly used the ACS to avert Europe’s ambition.

However, whether among settlers, settlers and indigenous Liberians, or indigenous to indigenous, Liberia’s emergence as a nation is replete with division and political alienation.

It should be noted that, in addition to political alienation, is the mistreatment and dehumanization of indigenous Liberians by their so-called Americo-Liberian counterparts that ruled Liberia over a century and half. One can further argue that Liberia’s political divisions started well before the advent of the ACS.

There were various clan wars and tribal clashes well before the coming of the ACS in 1816, when two of its officials along with two U.S. Government agents visited what was then, The Grain or Malaguetta Coast. Liberian historian, Abayomi Karnga traces our very first Liberian conflicts to those between the earliest Gola and Kissi inhabitants who had initially migrated from the hinterland of Central Africa into Liberia, where they met Bushmen who primarily survived on wild roots, and dwelt in caves and the void of large trees.

Then there was another wave of migration from perhaps Western Sudan around 6.000 B.C., who clashed and defeated the Gola and Kissi people that stood in their way into Liberia. They later set up an empire headed by King Kumba (The Kumba People). Accordingly, Kumbas comprised of the Kpelle, the Lorma, Gbande, Mende, and Mano. The Kumba people were very worrisome. Toward the eastern front of Liberia, arrived the Kru, Bassa, Dei, Mamba, and Grebo tribes as late as the 1600s. The last waves of migration to precede ACS settlers of the included the Mandingo-group, comprising the Vai and Mandingo people.

To protect themselves and their newfound homeland, members of the ACS residing in Liberia, started crafting protective laws that will shield the homeland from colonial aggression on the one hand, and further enslavement by former American slave owners. .

This legacy of creating laws that keeps others out of Liberia senselessly hurts us as a people unabatedly. Amongst God’s creation, mankind is said to be the most superior. I doubt if these senseless laws make us any superior than other mammals.

For its part, the 1847 Liberian Constitution defined “Liberian Citizens” as former inhabitants of North America who were resettled in Liberia. That law excluded indigenous Liberians for decades. At least it was not till 1973 when this travesty was spotted by an indigenous constitutional scholar, Counselor Truan Wreh. This was the same year of the so-called Alien Nationality Act.

In 1986, under the tutelage of Dr. Amos Claudius Sawyer, a new Liberian Constitution was adapted as the law of the land. The 1986 Constitution perpetuates exclusionary laws that seemingly stifle natural born Liberians from seeking elected offices, if they have not resided in the country for the last ten years (Residency Clause). There are mixed reactions to this law, depending on where one stands politically. However, the benefits of stifling those who have lived outside Liberia for ten years or more, have yet to be seen?

Nonetheless, there is little precedence to support the Residency Clause Legislation as enshrined in our constitution. The closest applications of this law included those of the former Minister of Public Works, Lusene Donzo, and one junior minister of defense for coast guard affairs. However, Minister Donzo was later confirmed on grounds that he had renounced his U.S. Citizenship.

On October 5, 2011, 1st Petitioner John D. Balone along with Abraham G. Massaley, Sekou Kromah et al., filed a petition for a writ of prohibition. The petition states three basic premises for the challenge:

(a) that the aspirants certificated and qualified by the 1st respondent National Elections Commission to contest the presidency in the ensuing October 11, 20111 Presidential and General Elections did not meet the residency requirement set out in Article 52( c) of the Constitution since none of the said aspirants had resided in Liberia for ten "consecutive" years;

(b) that the 1st respondent National Elections Commission's action, in certificating and qualifying the named presidential aspirants of the 3rd respondents political parties, was not only in violation of Article 52( c) of the Liberian Constitution, but that 1st respondent did so knowing that the certificated candidates did not meet the constitutional requirement of Article 52(c); and that the action of the 1st respondent National Elections Commission, with the acquiescence of the 2nd respondent Ministry of Justice and in conspiracy with the 3rd respondents political parties, was tantamount to an act of treason, as defined by Article 76 of the Constitution.

The 3rd respondents, whose qualifications are being challenged, include the Congress for Democratic Change (CDC), represented by its Standard Bearer, Winston A. Tubman; Liberia Transformation Party (LTP), and its Standard Bearer, Reverend Kennedy; Unity Party (UP), represented by its Standard Bearer, Ellen Johnson-Sirleaf; The National Union of Democratic Progress (NUDP) and its Flag Bearer, Prince Y. Johnson; Liberty Party, and its Standard Bearer, Charles Walker Brumskine; The National Democratic Coalition (NDC), and its Standard Bearer, Dew Tuan Wleh Mason; and all aspirants who, [although petitioners did not specifically name] but elected to refer to as "similarly situated".

There were a number of contentions raised by the respondents in this writ. The first contention was on the process of contending an electoral violation.

That whilst t is true that Article 52(c) provides that "No person shall be eligible to the office of President or Vice President unless that person is a resident in the Republic ten years prior to his election", the provision does not require a citizen wishing to contest the position of President of Liberia to be a resident for ten consecutive years as contended by the petitioners; that the provision is unambiguous and needs no interpretation; and that the petitioners interpretation to that effect that it means ten consecutive years prior to election has a deliberate ulterior motive designed to misinterpret the provision.

During argument before this Court, the petitioners questioned the constitutional propriety of the entire extra-constitutional arrangements, especially those of 2003 through January 6, 2006, which paved the way for the ushering of the current constitutional order.

The argument ignores completely the fact that Liberia, in many respects during the course of our civil conflict, simply ceased to constitutionally exist. We wondered how, under these circumstances, the petitioners could make the argument that the Constitution should have been strictly followed, since such a position would even lead to questioning the legality and legitimacy of the 1st petitioner itself.

The court therefore held that the circumstances at the time justified the course followed and that therefore the provision cannot be said to operate against the respondents. Indeed, given that it was only in January 2006 that constitutional order was restored to Liberia, the provision in question will become operative on in January 2016.

Further, as a matter of law, can a citizen be barred from contesting the 2011 presidential election on account of the suspended Article 52{c), a non-governing law during the periods of war as well as constitutional suspension, without offending the principle of Ex post facto articulated under Article 21 of the Liberian Constitution?

The ex post facto principle, articulated in Article 21(a) of the (1986) Constitution, says Inter alias: "No person shall be made subject to any law or punishment which was not in effect at the time of commission of an offence...." An authoritative legal source, Black’s Law Dictionary, Sixth Edition, at page S80, defines ex post facto law as "[a] law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed....". [Emphasis supplied).

In denying the petition, the supreme court further said, that it would be ludicrous to hold someone who fled Liberia because of the civil war be permitted to file their complaint before a court of law otherwise outside the statutory time period, but at the same time disallow similarly situated Liberian citizens from exercising their right to compete for the presidency on account of Article 52(c).

And then the court asked, will doing so not amount, for all intents and purposes, to disparate treatment of individuals who are indeed similarly situated? It is our considered opinion that it does. This Court therefore dismisses the claim of the petitioners in respect of the attack against the presidential aspirants in reliance of Article 52(c).

As a matter of law, the Supreme Court noted further, and with great concern, that the petitioners, in making the allegation that the respondents presidential aspirants had failed to meet the requirements of Article 52(c) of the Constitution, had failed to provide any evidence to substantiate the claim.

Our Liberian law is clear on the issue: He who makes an allegation has the burden of proof and must meet that standard. This Court will not countenance and will not entertain any action wherein allegations are made and not substantiated, for this Court neither has the authority to provide advisory opinion or base its decision on the mere speculation of a party.

Accordingly, the Supreme Court states that where there is such violation of the procedural requirements set forth in our laws, the Court will, in looking upon the allegation as mere speculation, will refuse to entertain the action.

Counsels were therefore admonished that if they fail to meet that standard stated herein by providing the necessary evidence to substantiate the allegations made, their matters could form the basis for dismissal of the entire action.

It is therefore, the view of this editorial that the recent Code of Conduct though constitutional, is not yet a fully developed law to date, and so falls under similar circumstances as contained in the writ of prohibition case capped above. As such, under exp post facto principle, articulated in Article 21(a) of the (1986) Constitution, says Inter alias: "No person shall be made subject to any law or punishment which was not in effect at the time of commission of an offence...." Part II of this editorial will outline how the Code of Conduct is a law simply in construction.

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