In 2012, President Ellen Sirleaf issued Executive Order 35 to account for the lack of a code of conduct for public officials. The establishment of a code of conduct had eluded Liberia since it was proposed by the Brownell Commission in the aftermath of the April 14, 1979 rice demonstration.
The Liberian Constitution of 1986 at Article 5 (c) requires the government to “take steps, by appropriate legislation and executive orders, to eliminate sectionalism and tribalism, and such abuses of power as the misuse of government resources, nepotism and all other corrupt practices.” In regard of doing this, the presidential move is laudable as successive legislatures and Presidents, since 1986 have failed to perform their constitutional duties set forth in Article 5. But President Sirleaf, in performing this crucial constitutional task, made a very serious yet rudimentary error of including access to information issues in Executive Order 35. By definition an Executive Order is a law making power given to the president to address gaps in the legal systems of this country. It is not quite clear where the practice originated from and which President of Liberia was the first to take on such powers. While the Constitution of Liberia acknowledges the power of the president to issue executive orders, it in no way defines that power and the extent of it and crucially how it might be exercised or its limitations. The Gaffe of Executive Order # 35 So without regards to the existence of the Act to Establish the Freedom of Information in Liberia of September 2010, which covers all access to information issues in Liberia, President Sirleaf issued Executive Order #35 including provisions in the order which were directly in conflict with the statute. At the time, the Liberia Media Center raised the issues with the government citing the hierarchy of laws doctrine. By this doctrine, in Liberia, the Constitution takes preeminence over all laws; next in line, the statutes supersede all laws and regulations except the Constitution. The LMC’s argument at the time was that, considering this doctrine, it was wrong for the Executive Order to seek to bring in provisions on the confidentiality of information and how such information can be made available to the public. The freedom of information statute had already addressed the issue and set forth guidelines as to how they should operate. The Constitution is clear at Article 2 when it says: “This Constitution is the supreme and fundamental law of Liberia and its provisions shall have binding force and effect on all authorities and persons throughout the Republic. “Any laws, treaties, statutes, decrees, customs and regulations found to be inconsistent with it shall, to the extent of the inconsistency, be void and of no legal effect. The Supreme Court, pursuant to its power of judicial review, is empowered to declare any inconsistent laws unconstitutional.” Some may say, it is a matter of the courts to determine whether a law, treaty, etc. is inconsistent with the Constitution. Though this is true, it in no way takes from the fact that the President, the Legislature, and every other institution of government clothed with the power to make laws should do their utmost to refrain from instituting measures which are patently in violations of the constitution or statutes. The State of Emergency Legal Faux Pas On October 1, 2014, President Sirleaf wrote the Legislature a letter requesting it to endorse her attempt to rewrite several crucial provisions of the Liberian Constitution under the guise of seeking more powers to respond to the Ebola health emergency. Whatever the case was, the Constitution has specific procedures through which it may be changed in parts or whole. Nowhere in those laid down procedures does it allow the president and the Legislature to make those changes without seeking the endorsement of the population in a referendum. According to the Liberian Constitution, the only legal ways for changing it is either by a bill of amendment being passed by two thirds of each of the Houses of the Legislature or a petition signed by at least 10,000 Liberians which has to be subject to two-thirds endorsement by the Legislature. Either of these processes is then followed by a full year of discussions before a popular vote is held to decide whether it should become law or not. Any amendment has to receive the endorsement of two-thirds of the people who voted in the referendum to become effective. Article 91 states that “This Constitution may be amended whenever a proposal by either (1) two-thirds of the membership of both Houses of the Legislature or (2) a petition submitted to the Legislature, by not fewer than 10,000 citizens which receives the concurrence of two-thirds of the membership of both Houses of the Legislature, is ratified by two-thirds of the registered voters, voting in a referendum conducted by the Elections Commission not sooner than one year after the action of the Legislature.” Those are the only legal procedures to make changes to the Liberian Constitution, but President Sirleaf and her legal advisers in their wisdom decided to circumvent those legal procedures to make changes to the Constitution, which was irregular. The President sought to change Article One of the Constitution which she titled in her letter “Alteration of Election Time and Manner”. The letter stated that “The President may, by proclamation, alter the period and manner provided for under the constitution of elections, by which the people cause their public servants to leave office or to fill vacancies. Provided, however, that no deviation from the constitutionally prescribed period shall cause the extension or reduction of any term of office therein prescribed”. By comparison, the actual Article One of the current Liberian Constitution states that “All power is inherent in the people. All free governments are instituted by their authority and for their benefit and they have the right to alter and reform the same when their safety and happiness so require. In order to ensure democratic government which responds to the wishes of the governed, the people shall have the right at such period, and in such manner as provided for under this Constitution, to cause their public servants to leave office and to fill vacancies by regular elections and appointments.” The reason for the proposal to have the power to alter Article One remains a huge mystery to many people considering that Article One is the bedrock of Liberian democracy. The framers of the current Constitution were not mistaken when they included this provision specifically putting all authority in the people of the country. It was a dangerous quest by President Sirleaf not because she would have misused the powers she was trying to grab. It was dangerous because it could have set the wrong precedence for future governance in the country. Another person with less democratic credentials may one day have used her example as the excuse to do a lot worse. President Sirleaf also sought to use executive power to make changes to Articles 12, 13, 14, 15, 17 and 24 to affect labor rights, free movement, religious rights, speech, public assemblies, and property rights. The truth is that the president had no valid excuse to use constitutional changes to justify certain of the actions she wanted to take. For example, there was no need to change the constitution to expropriate private property for public use. The Constitution at Article 24 is quite clear on the issue. Many of the restrictions she wanted to impose were equally best implemented through appropriate court orders and established proper legal procedures. Legislative action was also available for restrictions to be placed on certain of the rights outlined in the president’s letter. Whatever the reasons were for the president to try to change the constitution by executive action is yet unknown, but what is clear is that the Legislature acted in a timely manner to reject the move overwhelmingly. The President has as advisers some of the best legal luminaries in the country. This makes it even harder to understand the motivations behind the actions as it is inconceivable to believe that her legal advisers would be the ones endorsing these faux pas.