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Who Will Survive The Ten-year Clause? A Backdoor To The Liberian Presidency
Saturday 13th August 2011

In this FrontPageAfrica analysis, the paper looks at many presidential candidates, including the incumbent Ellen Johnson-Sirleaf who 'fear' the upcoming referendum results in a ‘No’ vote on the ten-year clause question, it could all come down to a last resort battle at the Supreme Court which could be forced to weigh in and interpret the law for or against those eyeing the presidency.

A no-vote by voters on August 23rd could virtually put the elections at a standstill ruling out all of the major candidates from the presidential race. What are their options? Is there an entry point through the backdoor? What if the referendum, coming up in a few days ends up in a No vote? Charles Brumskine, Dew Mayson, Winston Tubman and even the incumbent Ellen Johnson-Sirleaf would not be qualified to contest.

What would this mean? Would the elections be called off because no candidate qualifies? Finding a candidate who has been in Liberia for ten years is close to impossible. The presidential race would then come down to the relatively obscure Simeon Freeman of the Movement for Democratic Change, Prince Johnson of the National Union for Democratic Progress and… well…very little else.

Sticky, tricky issues in play

The deadline for submission of candidates is August 15, 2011, just a week before the referendum. To date, according to Bobby Livingstone at the National Elections Commission, only Freeman and Liberty Party’s Charles Brumskine have submitted requirements to contest. But here is where things get a little bit tricky. Should candidates who have already submitted their names to contest fall in the current ten-year boundary and the referendum results in a No vote, leading political parties could be facing a daunting dilemma of fielding a party without presidential candidates to contest.

Some 1.7 million registered voters will have an option to vote yes or no to four propositions contained in the 1986 constitution. The propositions include a change in the date of elections from second Tuesday in October to the second Tuesday in November; a simple majority for all elected posts except for the vice president and president, which will be decided by an absolute majority; the proposition seeking a change to the retirement age of the chief justice and associate justices of the Supreme Court from 70 to 75 years and a change in the residency clause from 10 to five years. In its current form, the constitution requires that anyone wanting to contest the presidency must have lived in the country 10 years prior to the holding of elections.

No one qualifies, really

Where does that leave the current presidential field?

Amid rising dissent and disagreement over the pending referendum, opposition political parties have taken the incumbent government to task, accusing the government of conniving with the NEC to give Sirleaf an easy pass to a second term. Mayson, who heads the National Democratic Coalition, is urging his supporters to give Sirleaf and early eviction notice by rejecting the changes in the referendum. Says Mayson: “We cannot change our constitution to suit the whims and caprices of one individual no matter how important that individual may consider him or herself.”

“Why five years” Why not seven, or three, or something else? Well, I tell you why they are proposing to reduce the presidency requirement from ten to five years. It is because President Sirleaf has been living here since 2005 and as every other propose clauses in the referendum, this too has been seam-stresed to enable President Sirleaf to hold onto power.” But historians say Mayson’s facts are off the mark.

A closer look at the various candidates suggests that Brumskine arrived in Liberia in 2003 and promptly turned over his American green card to the Embassy in Monrovia.  Sirleaf arrived later that year after she failed to win a bid for the interim presidency in Accra. Tubman himself moved to Liberia a year later in 2004, after resigning his position as UN Special Representative in Somalia. All three have been living in Liberia since they first arrived without change in residence. However, if the residency clause is construed narrowly, as some would suggest, they all would be ineligible to contest the ensuing 2011 elections.

Others like Weah and Mayson have maintained residences elsewhere. Weah resides in the State of Florida, where he recently completed his university education at DeVry, and Mayson currently resides in Nigeria. Both of them make frequent political visits to Liberia. For them, the residency clock has not yet started running. Thus, many remain baffled over Mayson’s referendum stance since he stands to lose regardless of how the referendum is concluded. He misses the boat in both a five year and ten-year results. With both Tubman and Weah out of the picture, CDC could turn to former first lady Jewel Howard Taylor who may be the only high-profile figure that qualifies under the current ten-year requirement.

Ironically, all opposition candidates excluding Brumskine and the incumbent share similar views on the Ten-Year Clause question. The opposition currently opposes the 5 years referendum  proposition because they fear that the incumbent, Sirleaf will use her influence over the Supreme court to force an interpretation of  the vague article 52c that will qualify all of them Tubman, Mason, Brumskine and the rest. The current residency clause says one must have resided in the country ten years prior to his/ her election. The interpretation they (the opposition parties) are hoping for is: Any ten year before the 2011 elections.

The five years proposed clause is less desirable because it is not vague and it excludes a lot of them. The proposition says the words; immediately prior to his/ her election as opposed the current 10 years proposition that just says prior to his/her elections.

Opposition making sad mistake, some say

Some opposition observers fear that the opposition parties could be threading danger, making a sad mistake and misreading the true intention of the ruling Unity Party which some say is to cause the opposition to be the advocates suggesting the implementation of ten years clause; Get a stricter interpretation of the ten years clause that will qualify the incumbent and deny many of the so called leading opposition parties including the CDC, Liberty Party and others. Some opponents of the ten-year clause feel the Unity party wants to be able to deny these parties participation without being seen as draconian.

Which is why some have called for boycotts while others have been advocating for a no vote. The ruling party has in the past few weeks taken up front page advertisement in major daily newspaper, encouraging supporters to vote yes to all of the issues on the ballot. In contrast, opposition forces want a boycott or a no vote. Candidates like CDC’s Tubman are convinced that the process is stage-managed and is calling for a boycott. “Why are they carrying on the planned referendum anyway? Ambassador Winston Tubman, standard bearer of the Congress for Democratic Change, asked recently.

Tubman argues that Article 91 of the constitution states that the 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.” This portion of the constitution, according to the former UN envoy, shows a wanton violation of the organic law of the state.

Opposition stance baffling

It baffles many political observers that many opposition figures are advocating a no vote and expressing support for the current residency requirement even though they do not qualify under said arrangement. Their motives remain unclear even as many appear uncomfortable and are pressing for Sirleaf, the incumbent to excuse herself from the race. A no-vote not only disqualifies Sirleaf but also does Brumskine, Weah, Tubman and Mayson. Where does that leave the upcoming presidential race?

In only a matter of days, voters will help decipher the pros and cons by exercising their rights to vote. Whichever way it ends, political observers say, the ten-year clause could be a deciding factor and could require the intervention of the Supreme Court.

Backdoor: Options on the table

Opponents of the incumbent fear that the Supreme Court route benefits the incumbent should the case ever reaches the court. Options on the table include the court stretching the interpretation of residency to exclude several acts: taking refuge in a foreign country during times of war, taking up assignment in an international organization like the UN, ECOWAS, or AU, attending an institution of higher learning abroad, or taking up diplomatic assignment. Still strict constructionists would argue that during any period in which one obtains legal residency in a foreign country he/she could not also claim residency in Liberia.

Nevertheless, if the Supreme Court adopts the standard articulated above most presidential candidates would qualify. For example, a candidate like Weah could claim he was away attending school, Tubman could claim he was working on international assignment and candidate like Brumskine, Mayson and others could claim they were simply seeking refuge at a time of war.

And this is what the opponents of the referendum are hoping for. In the final analysis though, it will all boil down to voters who will have the final say over whether to keep the ten years as is or reduce the boundary to five years. For those eyeing the presidency, the clock is ticking. Yes or No, the August 23rd vote could make or break the political future of many within striking distance of the presidency with an outside chance of falling within a glimpse of what is no doubt a complicated residency requirement.
 

Who Stands To Win; Who Stands To Lose? A look at how key candidates could be affected by the upcoming ten-year clause on the ballot of the August 23rd referendum

CHARLES BRUMSKINE, LIBERTY PARTY

Brumskine arrived in Liberia in 2003 and promptly turned over his American green card to the Embassy in Monrovia, totally his uninterrupted presence in Liberia to eight years.

ELLEN JOHNSON-SIRLEAF, UNITY PARTY

Like Brumskine, Sirleaf arrived in Liberia later in 2003, after she failed to win a bid for the interim presidency in Accra. Her totally uninterrupted stay in Liberia amounts to eight years.

WINSTON TUBMAN, CONGRESS FOR DEMOCRATIC CHANGE

Tubman moved to Liberia a year later, in 2004, after resigning his position as UN Special Representative in Somalia. Tubman’s total uninterrupted stay in Liberia amounts to seven years. It baffles many political observers that many opposition figures are advocating a no vote and expressing support for the current residency requirement even though they do not qualify under said arrangement.

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