Everything Liberia

Post Elections Reflections

By. D Othniel Forte

 

Reflections

 

The elections are over so it is time to reflect on the process, albeit some may believe it a bit premature to do so just yet. However I am more leaning to the notion that the sooner the dialogue takes place, the quicker the healing process can begin.

This paper is restricted mostly to the facts and their interpretation under the Liberian legal system. Some common law references may be applied but only as a back ground resource. The readings will then judge for themselves after reading. It will also be presented in two parts.

 

On October 11, the people of Liberia took a major step forward in the nation’s drive to strengthen her democracy. There was no outright winner in the first round so the two leading contenders proceeded to the run-off slated for the 8th of November.

However certain events occurred in rapid succession that pushed the nation to the verge of its dreaded recent past. The major opposition party the Congress for Democratic Change-CDC protested the results. As per law any such protest is firmly in the domain of the National Election Commission- (NEC). Failure to reach an amicable resolution any party may appeal to the Supreme Court for final judgment.

 

The process however did not reach this far. In fact it virtually ended just as it began. For one fact amongst the complaints filed by the CDC was the removal of the Chairman of the NEC and its restructuring. This created a problem in and of itself for the neutrality of the referee was called into question. Our legal system is still years behind and does not fully compensate for such gray areas.

 

Secondly the CDC in her protest made demands that the ruling party claimed ranged from legitimate to illegal. Some of these issues are also well situated in grey areas of our legal system. To compound matters time was just too short to address all of the issues fully. This risked hijacking the process and holding the nation hostage.

Just as the parties involved and the international partners were seeking a resolution, a disturbing issue came to light. The NEC made a critical error that risked hampering and gains made so far. This made the CDC more resolved and an unexpected event occurred for the first time in our national history. In the midst of this the NEC Chairman Fromayan resigned.

 

He remarked that this was not just an attempt to appease the opposition but an effort to ensure peace for all Liberians. Now I know that many views are held on this matter but now is not the time for that. It will only distract from the basis of this paper and lead to conjecture. So we will let it be for now.

 

Somehow the CDC took this as an attempt to step up the pressure and insist that all their other demands be met. This led the other opposition parties and the Unity Party UP to accuse them of grandstanding and holding the nation’s future hostage.

In the background of all this politics continued. The UP had received all the key endorsements from the other parties that lost in the first round thus, at least in principal, assuring her of victory or so it seemed. The CDC on the other hand failed to secure any and had a few problems of her own within her party. Almost like déjà vu all over the CDC found herself hard pressed for a serious strategy to win, at least in the fair way. So she announced a boycott of the run off. Even this pronouncement was not clear as top officials began sending mixed messages on the same issue.

 

The NEC offered the CDC the chance to prove her allegations as is required by the New Elections Laws of Liberia. This law amongst other things put the burden of proof in the court of the accuser. It is the accuser that has to provide evidence of wrongdoing. The fact is the CDC did not fulfill this. She insisted on a boycott.

The final straw was when she called on her supporters not to turn out and vote on November 8. She went a step further and called for a ‘march’ on the eve of election. This rally was violently broken up by the Liberian National Police resulting in the loss of life of few people.

 

These are a summary of the major facts of the recent elections. Now to some interpretations, deductions and conjectures;

 

Merits/Demerits

The weeks after the first round of election saw many claims and counter claims being made by both sides. Let us now look at the major ones. The UP (as well as many Liberians) accused the CDC of violating the Constitution on many counts and trying to hold the nation hostage. The CDC counter claimed that it is well within her rights to act as she did. For the sake of brevity all the justifications the CDC can be summed as civil liberties:

 

a)    Freedom of Speech

b)    Freedom of Assembly

c)    Freedom of Movement

d)    The Right to Boycott

 

The Liberian Constitution provides certain basic rights to all its citizens and residents therein. All of the above freedoms are part of these fundamental civil rights as provided by the law. In fact the Constitution and our founding fathers went out of their way to enshrine these rights/liberties for all. Thus on the face the CDC claims seem genuine.

 

But let us delve a bit into the two terms that cause all this confusion and try to clarify.

Civil Rights focus on the tenets of equality. It implies that the burden is on the state to provide equality for all within its borders. She should provide equal protection and opportunity for all citizens to fully exercise the freedoms/citizenship in an effort to improve nation building. This they should do regardless of tribe, sex, religion etc. This makes the state to have a positive role in the process. The key here is equality.

Civil Liberty on the other hand implies that these rights/freedoms are guaranteed to all. That everyone is assured of free speech, free assembly, press, religion etc. It goes one step further to ensure that the state is placed in check over how she interferes or limits individuals in the exercise of these freedoms. This time the pressure is placed on individuals (singularly or collectively) to check the state’s power in restricting these rights.

 

In short the tenet of equality and liberty are interrelated in a complex web. For equality to exist in a society there must be laid down rules of liberty that ensures that as people exercise their freedom it does not violate the freedom of others. While for liberty to exist people should be aware of the fact that they must act in a manner that is prudent and responsible such that others will permit and allow it; not be offended or be in danger by it.

 

Whatever the case may be it is important that we keep this in mind; that the principal tenet of civil liberty certainly lies in the right of every individual to claim the full protection of the laws whenever s/he has been injured. With this out of the way we can now focus on the merits of the CDC actions.

 

Merit

Free press is considered as a fundamental individual human right. Without free media, a democratic system of government would not be possible. By recognizing the right to dissent in a democratic and free society, governments encourage people to peacefully and orderly carry out social and political change.

 

Freedom of Speech – as was stated the laws of Liberia have enshrined this tenet. It is firmly placed in bold prints for all to see that come what may there should be no endeavor to willfully deny free speech within the borders of Liberia. This being the case it would seem that the CDC had every right to exercise this freedom as per law.

 

The key things to consider are these three questions;

Did the law entitle the CDC a right to free speech?

Did the law provide redress for the failure to receive it?

If so, was this redress legally obtained/followed?

 

It is already established that the CDC was legally entitled to free speech.

Yes, the law provides for injured parties to sue/demand action from the state if they are denied any of their freedoms/rights. That is partly the main function of the court and the legal system.

 

No. but many in the CDC have claimed that they need not seek government approval to exercise their constitutionally given right. Thus they feel well within their limits to exercise their free speech. They see no ill in having their media outlets preach their political message at will. They feel justified in having their party officials take to the air waves and make use of the freedom in spreading their political message.

 

Demerits

The tents of free speech are not limitless or absolute. The law provides for certain restrictions in the exercise of that right. Typically these include libel, perjury, bribery, slander, obscenity, sedition, or incitement to riot.

 

By inciting her supporters to riot or perform any actions knowing in advance that the potential for damage is foreseeable makes it criminal. It was highly likely that a riot would ensure when she called on her supporters to gather on the eve of the election.

It is an established principle that free press/speech should not be used in any way that present a “clear and present danger” or bring about serious harm to some considerable part of the population that the government has a right or duty to protect. Therefore by inciting violence she endeavored to cause harm to part(s) of the citizenry for which the government must protect.

 

For example free speech does not spare a person who in exercising his rights causes panic in a public place by screaming fire or danger. If in the event some get injured or kill, such a person will be responsible for the crime. It is true that the act was committed under a fundamental right by law but it crossed its boundary when it in ill fate led to the injury or killing of others who are equally protected by the law.

 

Finally two other aspects need to be looked at under free speech. They are Degree of/to Danger- if the speech would result in danger how high or to what degree is the danger going to be on the person(s) against whom it is directed. If this is high then such speech poses a threat and the one expressing said is liable under the law.  

Proximity to Danger – in this case the law looks at how close/near is the danger to the one to whom such speech is directed. Like in times of war or crisis speech that has the tendency to endanger a part of the citizenry is not absolutely free if it intended to cause harm to those in close proximity of any danger/harm that may result from it. The one making it is liable and is not protected under free speech.

 

Freedom of Assembly – free gathering is an integral part of any democratic society. This is more so in our case considering that the past events of this nation have demonstrated how far things can go if these basic rights are disallowed.

 

Because it is (to some extent) possible to have free assembly without free speech a somewhat lesser degree of protection is by default given to this right. This is not by design but just an occurrence. Nonetheless it is hard to disassociate free assembly from free speech. People can gather freely and still not be allowed the full benefits of free speech. It has happened in most dictatorships or communist regimes. People may gather but they do not benefit from free speech; on the other hand people need not gather to freely express their speech. In these restrictive regimes people still find means to express their opposition but not necessarily by gathering or at least not in the traditional sense.

 

Merits

In Liberia the Constitution makes it fundamental to our society survival and political activities that free expression (speech, acts, movement) cohabitate with peaceable free assemblage. Otherwise many major aspects of our national life will be hindered unduly. Therefore two or more persons can gather in expression of this freedom/right without having to fear the act in itself provided it is peaceful. The focal tenets here is twofold; a) first the act itself and b) the purpose of the act.

The first is the fundamental tenet the law seeks to protect. It concentrates on ensuring that the state is checked in how she attempts to restrict or limit this right/freedom. The second is a necessary means to ensure that in exercising this freedom others are not affected inversely in any way.

 

Thus the CDC had every right to exercise her freedom as per the laws of the land without fear of being apprehended in any way or intimidated.  She had the right not to be subjected to intimidation by law enforcers or anyone else. In fact she has a right to assert her rights for failing to do so is in a way a violation of the Constitution.

What I am trying to say is that the public violates the Constitution if she does not insist on getting ALL her freedoms/rights. The same applies if the state in part of whole denies its citizenry the right to exercise its freedoms/rights. The law guarantees that political rallies, parades, protest marches, picketing, and other forms of public gatherings are central to the Liberian way of life. It is integral to our existence as a people and a nation.

 

Demerits

The right to free assemblage is not absolute. It can be limited and restricted legally if cause is shown that it needs to be. The commonly agreed focus of the law in these instances is threefold: a) manner b) place c) time.

 

In what manner is the assembly held or to be held? The trick in this particular right of assemblage is in the one word peace. All other factors may be disregarded if the intent and purpose of the assembly is not peaceable. The Constitution underscores peace for a particular reason which will soon be addressed. As long as the assembly is not in line with this principle then it is illegal. The CDC is wanting in this regard. When weapons (stones, sticks etc) are thrown at others 9law enforcers or not it is no longer peaceful. A rally may begin peacefully but end deadly thus the law leans more on the side of cautioning in error. That is why it will tend to hold responsible the organizers of the assembly if it is known that such potential (violence) is high. The manner must be peaceful.

 

Place is another factor to consider. If an assembly is set for a potentially dangerous place the authorities have the right to stop it. It is legal in this case to restrict free assembly. This is so because lives are at stake. Thus assemblies that stand a high risk of danger due to the location it is intended to be held will normally be denied. For example holding or intending to hold one at the war front will put lives at risk but who will protect the protestors? Why didn’t the Iraq war protestors go to Iraq and protest or Afghanistan? The location was not suitable so in theory even if there are fanatics who may be willing steps will be taken to stop it.

 

Or in the case of a religious group that has a fanatic leadership and following who intend to kill themselves. If they seek a permit to host this rally (and the state knows fully that this is the plan) she cannot allow it to go on despite it is her right to assemble freely. The location/place is a factor in the restriction or permission of free assembly.

 

Lastly time; in the time of crisis free assembly may be restricted. In times of state emergencies or militia law free assembly is somewhat limited. Also in a regular system it is critical the time such free assembly is held. If Christians (peacefully) wish to protest the celebration of a Muslim holiday in Liberia choose to do so on the Ramadan, what are the chances the state will allow it? This is their right to assemble freely but the time chosen poses the threat of a high risk. Even though they may set out for a peaceful rally the risks are too high and the state may opt to restrict this right.

 

For example in Liberia as is the case with most nations it is illegal to campaign or conduct any mass gathering on the eve of election. This is done in part to allow people to think rationally away from the hype and noise. But it is also meant to establish the framework of peace for the next day. People are expected to go to the polls free of intimidation. This way the ruling party on any other party for that matter cannot take advantage of the security apparatus against others. Also it is in line with the campaign laws (the deadline for campaigning is the day before) therefore everyone goes home get some rest and hit the polls the next day. CDC violated this.

Lastly there is an additional reason why free assembly is curtailed at times. This is simple, whenever a group decides to gather freely or not it imposes or restrict the rights and movements of others who are not so inclined. This means that if no step is taken by the state to protect those parties there may be chaos. Thus it has become mandatory by law for states, Liberia not excluded, to regulate (to some extent) how and when protests are staged. They require the organizers to secure permits for such gatherings. Granted this process has been misused before by authorities but that is no excuse to scrap the process.

 

In the event riot breaks out there is strict or clear liabilities on the culprits. This is also necessary for the protection of those other citizens that are not similarly inclined. This offers them the freedom as well to go about their normal activities regardless of the protest of rally. They are equally protected by law to security and safety. The simple fact is this when people decide to rally they are in a way limiting the rights of others who are not aligned with them. Thus the state has to step in and do a balancing act between allowing some to exercise their rights without unduly restricting or harming others. Permits have become a common means to this end.

 

So while the police offers you (the ones protesting) protection from those that are opposed to you (so they can’t harm you), it also endeavors to protect and secure the homes and businesses of every other citizen that may be affected during the time of the rally. This means that those that have to travel that route for work or business, go to school, go about their affairs in that area or need to access it will all be affected regardless of their political or religious views.

 

That is why when the CDC or any political party sets a rally they are offered police protection as if it were the UP or a civil organization protesting some ills in society. This does not directly apply to churches and mosques for the fact that these groups gather freely on a regular basis. This has been proven over time that their gathering is PEACEFUL and endangers no one really. Thus as long as the church or mosque registers its address and fulfill the legal requirements they do not need to get a permit every Sunday or Friday. In principle the formal meeting of the registration laws is their permit.

 

However, if a church (in her exercise free assembly) decides to meet in a mosque or close to its facility under abnormal circumstances will the state hinder this or not. If it was reversed would it be allowed? Ponder this as we pause and bring part one to an end. Like I said you decide base on the facts herein presented.