Liberia report_FINAL - August 2009

LIBERIA CONSTITUTIONAL REFORM PROJECT
prepared by
Urban Morgan Institute for Human Rights
University of Cincinnati College of Law
for
Catholic Justice and Peace Commission and
Robert F. Kennedy Center for Justice & Human Rights

edited by
Robin Burch &
Claire Bushorn

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Copyright © 2009 Urban Morgan Institute for Human Rights
All Rights Reserved
Printed in the United States of America

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TABLE OF CONTENTS
ORGANIZATIONS INVOLVED..................................................................................................... IV
FORWORD BY BERT B. LOCKWOOD .......................................................................................... VI
LIBERIA CONSTITUTIONAL REFORM PROJECT...........................................................................1
INTRODUCTION ..................................................................................................................................................................................2
CHAPTER 1: BACKGROUND TO THE SITUATION IN LIBERIA ...................................................................................................10
CHAPTER 2: LESSONS FROM AN AFRICAN CONTINENT IN CONSTITUTIONAL REFORM ...................................................18
CHAPTER 3: PRESIDENTIAL TENURE AND THE LIBERIAN CONSTITUTION .........................................................................33
CHAPTER 4: MOVING TOWARD A FUNCTIONAL INDEPENDENT JUDICIARY IN LIBERIA...................................................43
CHAPTER 5: RECOMMENDATIONS FOR ACHIEVING CONSTITUTIONAL GUARANTEES WITHIN LIBERIA’S PRISON
SYSTEM ...............................................................................................................................................................................................60
CHAPTER 6: NECESSARY REFORM FOR LIBERIA’S DISHEVELED CONTRACT LAW..............................................................72
CHAPTER 7: THE CONVENTION ON THE RIGHTS OF THE CHILD IN LIBERIA’S CONSTITUTION ......................................85
CHAPTER 8: THE RIGHT TO EDUCATION IN LIBERIA ...............................................................................................................93
CHAPTER 9: THE AFRICAN UNION, LIBERIAN CONSTITUTION, AND CONFLICT RESOLUTION IN MODERN AFRICA111
CHAPTER 10: THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS AND AMENDING THE LIBERIAN
CONSTITUTION ...............................................................................................................................................................................121

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ORGANIZATIONS INVOLVED
THE CATHOLIC JUSTICE AND PEACE COMMISSION
The Catholic Justice and Peace Commission (JPC) of Liberia was established in November 1991 in response
to a century-long history of widespread human rights abuses and injustices accentuated by a brutal civil war
that began in 1989. It was founded by the Catholic Archbishop of the Archdiocese of Monrovia, the Most
Reverend Michael Kpakala Francis, one of Liberia’s most renowned human rights defenders and a leading
voice for social justice. Archbishop Francis founded the JPC in an effort to address the widespread human
rights abuses and injustices in his country.
In 1999, Archbishop Francis received the Robert F. Kennedy Human Rights Award for his work and his
vision for Liberia. The JPC is a Liberian national organization that postulates the Christian principles of love,
justice, and freedom and addresses itself to issues regarding social, economic, political, and religious justice as
well as respect for human rights. The organization offers information, education, research, and legal aid and
promotes the Archbishop’s social justice goals of promoting sustainable peace and a vibrant civil society.
Unfortunately, Archbishop Francis was afflicted by a stroke in early 2004. In February 2005, Monsignor
Andrew Karnley was appointed the Apostolic Administrator of the Archdiocese of Monrovia by the Vatican,
and he is carrying on the social justice goals identified by Archbishop Francis.
Contact Information:
J. Augustine Toe, National Director, Catholic Justice and Peace Commission
P.O. Box 10-3569, 1000 Monrovia 10, Liberia, West Africa
Mobile: 231 (77) 513 977; Email: jnmahtoe49@yahoo.com; justiceandpeacecommission@yahoo.com
ROBERT F. KENNEDY CENTER FOR JUSTICE & HUMAN RIGHTS
Founded in 1968, the Robert F. Kennedy Center for Justice & Human Rights (RFK Center) works to realize
Robert F. Kennedy’s vision of social justice. In 1984, in order to better reflect the global nature of RFK’s
work, the RFK Center established the Human Rights Award, and provides support to the award laureates.
The RFK Center has recognized the courage and sacrifice of thirty-seven community activists, political
prisoners, environmentalists, union organizers, and human rights defenders in twenty-two countries.
By forging long-term partnerships with its RFK laureates, the RFK Center ensures that its work concretely
contributes to important social movements and impacts the global human rights movement. RFK Center
combines innovative human rights tools and advocacy campaigns with a rights-based approach driven by
grassroots partners around the world. The RFK Center engages a Global Advocacy Team of pro-bono
experts, professional human rights staff, the Kennedy family, and their networks to advocate for the change
its partner activists seek; these include changing policies and actions of governments, intergovernmental
organizations, international financial institutions (IFIs), and corporations.
Archbishop Michael Kpakala Francis was awarded the RFK Human Rights Award in 1999. Since that time
the RFK Center has been working with the Archdiocese of Monrovia on human rights projects in Liberia,
specifically with the JPC and Radio Veritas, to achieve the Archbishop’s social justice goals. To that end, the
RFK Center and JPC have partnered on numerous advocacy and human rights projects including this
Constitutional Reform project.

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Sushetha Gopallawa, Advocacy Director, Robert F. Kennedy Center for Justice & Human Rights
1367 Connecticut Avenue NW, Suite 200, Washington, DC 20036
Phone: 202 463 7575 x 270; Fax: 202-463-6606; Email: Gopallawa@rfkmemorial.org
Website: www.rfkcenter.org
URBAN MORGAN INSTITUTE FOR HUMAN RIGHTS
For thirty years, the Urban Morgan Institute for Human Rights (UMI) has educated and trained human rights
lawyers, promoting and protecting human rights in the international arena. Established in 1979, the UMI
serves as a model for many human rights programs.
The UMI emphasizes three areas: teaching, research, and service. Students have the opportunity to participate
in externships that take them around the world with human rights groups fighting injustice. Some examples
are serving as election observers in South Africa and working to strengthen women’s rights in foreign
countries.
At the core of the UMI’s success is the Human Rights Quarterly, published by The Johns Hopkins Press and
recognized as the leading academic journal in the human rights field. The Quarterly covers the range of human
rights matters encompassed by the Universal Declaration of Human Rights.
Professor Bert B. Lockwood, Distinguished Service Professor, Director of UMI, and Editor-in-Chief of the
Quarterly, is a graduate of St. Lawrence University (B.A.), Syracuse University College of Law (J.D.), and the
University of Virginia Law School (LL.M. with a specialization in International Law). He was Assistant
Director and Senior Fellow of the NYU Center of International Studies, Program Director of the World
Peace Through Law Center, and Associate Dean of the Washington College of Law at American University.
In 1978, he co-founded the International Human Rights Law Group in Washington, DC and has served in
various advisory capabilities since.
Professor Lockwood has served as the Director of UMI since 1979 and is in his twenty-eighth year as Editor-
in-Chief of the Quarterly. In 1988, he became Series Editor of the Pennsylvania Studies in Human Rights, a
human rights book series that has published sixty volumes, many of which are award winners. Professor
Lockwood is also an International Advocacy Team Member for the RFK Center.
Bert B. Lockwood, Director and Distinguished Service Professor of Law
Urban Morgan Institute for Human Rights
University of Cincinnati College of Law
P.O. Box 210040, Clifton Avenue and Calhoun Street
Cincinnati, OH, 45221-0040
Phone: (513) 556-0068; Fax: (513) 556-2391
Web: www.law.uc.edu/academics/morgan_directory.shtml

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FORWORD BY BERT B. LOCKWOOD
We were honored to have Monsignor Andrew Karnley, Apostolic Administrator of the Archdiocese of
Monrovia and representative of The Most Reverend Michael Kpakala Francis, the Catholic Archbishop of
Monrovia, and the Recipient of the Robert F. Kennedy Human Rights Award in 1999, visit the Morgan
Institute and discuss his important work in Liberia as it sought to recover from civil conflict that ravaged the
country. Subsequent to the visit we received a request to review the Liberian Constitution with an eye toward
suggesting changes that might promote respect for human rights. The present report grows out of that
request.
My colleague, Professor Chris Bryant, and I organized a research seminar with a group of law
students at the University of Cincinnati. As an educational experience it was thoroughly engaging and
stimulating. None of us was knowledgeable about the Liberian Constitution. It must be emphasized that this
report discusses principles and possible changes that might promote respect for human rights and peace in
Liberia; however, we recognize that there is no magic piece of paper that transforms a country. In the end it
is wise leaders working with a vigilant citizenry that hold the key.
We express our gratitude to Sushetha (Siro) Gopallawa, Advocacy Director at the RFK Center for
Justice & Human Rights, for promoting this project and providing guidance during the course of its fruition.
To the people of Liberia, we hope this modest effort contributes to the cause of peace and respect for
fundamental human rights and freedoms.
Bert Lockwood

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LIST OF ABBREVIATIONS
AU African Union
CRC Convention on the Rights of the Child
ECOMOG ECOWAS Monitoring Group
ECOWAS Economic Community of West African States
ICESCR International Covenant on Economic, Social and Cultural Rights
JPC Catholic Justice and Peace Commission
NGO non-governmental organization
NPFL National Patriotic Front of Liberia
NTGL National Transitional Government of Liberia
OAU Organization of African Unity
RUF Revolutionary United Front (Sierra Leone)
UNMIL United Nations Mission in Liberia
WFP World Food Programme

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INTRODUCTION
1
The Catholic Justice and Peace Commission (JPC), founded by Most Reverend Michael Kpakala
Francis Archbishop of Monrovia, is the oldest and most respected human rights organization in
Liberia. The RFK Center for Justice and Human Rights has worked with the JPC on numerous
human rights projects in Liberia since Archbishop Francis, one of Liberia’s leading voices for
sustainable peace and reform, received the Robert F. Kennedy Human Rights Award in 1999.
The JPC advocates for human rights in Liberia, and one of its main objectives is to prevent
the country from once again being governed by individuals acting for personal gain. Government
officials’ respect for the rule of law is implicit in preventing history from repeating itself in Liberia.
Thus, the JPC believes that a review of the Constitution of Liberia is vital to ensuring that
constitutional safeguards exist to promote peace, security, and human rights. The last constitutional
review took place in 1984. Years of civil war and massive abuses of power demonstrate that the
constitutional amendments of 1984 did not serve their purpose. With the landmark democratic
election of President Ellen Johnson-Sirleaf in late 2005, the opportunity to revise the constitution
exists now more than ever. In fact, President Sirleaf set up a task force in early 2009 to review the
constitution in its current form.
In light of the progress towards constitutional reform, this report is submitted as a manual
for the JPC, as well as other civil society organizations in Liberia, to help prepare for meaningful
participation in advocating for constitutional reform in the country. This report provides examples
of how civil society may look to international legal obligations and comparative foreign law to make
concrete recommendations for constitutional reform that will lead to greater respect for human
rights within Liberia’s domestic legal framework. To reach such objectives, the legal research within
1 Written by Claire Bushorn, University of Cincinnati College of Law Class of 2010. The author would like to
acknowledge with thanks Sushetha Gopallawa, Advocacy Director of the RFK Center for Justice & Human Rights and
Amanda Klasing, RFK Social Justice Fellow of the RFK Center for Justice & Human Rights for their valuable
contributions to this section.

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the report is tailored specifically for constitutional reform in Liberia, as it relates to Liberia’s
international human rights obligations. It is our hope that this report will serve as a useful tool for
human rights advocates in Liberia.
A central theme throughout this report is that Liberia must amend its constitution if it wants
to effectuate the international obligations it agreed to undertake as a party to multilateral human
rights treaties. Although there are four sources of international law2
from which a country may
derive international legal obligations, this report deals solely with Liberia’s obligations under the law
of treaties. More specifically, it is concerned primarily with Liberia’s international obligations
according to the human rights treaties to which Liberia is a party. Treaty law is considered a primary
source of international law for its ratifying parties, partly due to the highly contractual nature of
treaties. Implicit in the concept of treaty law is the principle that the obligations agreed to within the
treaty become binding on the ratifying states in order for each party member to the treaty to be able
to rely on the performance of the treaty by the other party or parties.3
The treaty is an evident source
of formal law and was codified in the 1969 Vienna Convention on the Law of Treaties.4
This report focuses on Liberia’s obligations under the following six major human rights
treaties to which it is a ratifying party: Convention on the Elimination of All Forms of Racial
Discrimination (CERD),5
International Covenant on Civil and Political Rights (ICCPR),6
2 The four sources of international law are: treaties, customary law, general principles of law, and judicial decisions and
expert teachings. Custom is based on the concept of an established practice and a subjective belief in the establishment
of the rule. General principles of international law are evidenced through national legal systems. Subsidiary sources of
judicial decisions and expert teachings have limited degrees of authority. See Statute of the International Court of Justice,
art. 38, annexed to U.N. Charter, signed 26 June 1945, 59 Stat. 1055, T.S. No. 993 (entered into force 24 Oct. 1945).
3 This generally recognized maxim is ‘Pacta sunt servanda’ and is translated to mean “Every treaty is binding upon the
parties to it and must be performed by them in good faith.” Hugh Thirlway, The Sources of International Law, in
INTERNATIONAL LAW 115, 122 (Malcom Evans ed., 2003).
4 Id. at 122; Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF.39/27 (1969), 1155 U.N.T.S. 331 (entered
into force 27 Jan. 1980), reprinted in 8 I.L.M. 679 (1969).
5 International Convention on the Elimination of All Forms of Racial Discrimination, adopted Dec. 21 1965, U.N. Doc.
A/6014 (1966), 660 U.N.T.S. 195 (entered into force 4 Jan. 1969) (accession by Liberia 5 Nov. 1976) [hereinafter CERD].
6 International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res 2200 (XXI), U.N. GAOR, 21st
Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 3 Jan. 1976) (ratified by Liberia 22 Sept.
2004) [hereinafter ICCPR].

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International Covenant on Economic, Social and Cultural Rights (ICESCR),7
Convention on the
Elimination of Discrimination Against Women (CEDAW),8
Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT),9
and Convention on the Rights of
the Child (CRC).10
This report, therefore, is limited in scope, as its recommendations for
constitutional reform find legitimacy within the international human rights obligations Liberia has
promised to be bound by in the above-listed treaties. The last two chapters, however, focus on
African Union (AU) treaties to which Liberia is a party.
The Liberian Constitution is modeled after the United States (US) Constitution.11
However,
rather than providing stability and freedom, it has been used to exploit the social, political, and
economic rights of its citizens. As with the US Constitution, Liberian founders created three
separate branches of government: the executive, the judiciary, and the legislative.12
Unlike the US
Constitution, however, the executive branch in Liberia holds a disproportionate amount of power in
relation to the other two branches. With regard to international law, the Liberian Constitution
constructs a dualist system like the US system, in which law promulgated under the constitution is
separate from, and primary over, international law, unless it has been incorporated into domestic
law.13
The constitution was last amended in 1984 by former President Samuel Doe, who had seized
power through a military coup in 1980. Although President Doe initiated constitutional reform
under the guise of ensuring Liberians’ rights, his political regime, and those that followed,
7 International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N.
GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976) (ratified by
Liberia 22 Sept. 2004).
8 Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res.
34/180, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/46 (1980), 1249 U.N.T.S. 13 (entered into force 3 Sept.
1981) (accession by Liberia 17 Jul 1984).
9 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984,
G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985), 1465 U.N.T.S. 85 (entered into force
26 June 1987) (accession by Liberia 22 Sept. 2004).
10 Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No.
49, U.N. Doc. A/44/49 (1989) (entered into force 2 Sept. 1990) (ratified by Liberia 4 June 1993) [hereinafter CRC].
11 Jim Dube, Resurrecting the Rule of Law, 60 ME. L. REV. 575, 577 (2008).
12 CONST. OF THE REPUBLIC OF LIBER. art. 3.
13 Id. art. 2.

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established a pattern of disregard for the rule of law. These regimes committed gross human rights
violations to maintain control of the country’s resources and power. President Sirleaf’s
democratically elected administration took power in 2006 under the same constitution once used to
manipulate and protect impunity and totalitarianism. It is believed that the Liberian Constitution is
in critical need of reform to help propagate economic and political stability and to ensure that
Liberian citizens continue to regain faith in the political system. Inherent in furthering these goals is
the need for the constitution to adequately incorporate its obligations under the human rights
treaties to which Liberia is a party.
As mandated by these human rights treaties, Liberia has agreed to ensure the protection of
Liberian citizens’ human rights. While the Liberian Constitution needs reform, it is important to
note that some provisions within the constitution, at least on paper sufficiently address some of
Liberia’s obligations under international law. For example, Article 20(a) of the Liberian Constitution
states that “[n]o person shall be deprived of life, liberty, security of the person property, privileged
or any other right except as the out-come of a hearing judgment consistent with the prison laid
down in this constitution and in accordance with Due Process of Law.”14
Such a provision runs
consonant with Article 9 of the ICCPR, guaranteeing, among other things, that “every person has
the right to liberty and security of person.”15
Moreover, Article 11 of the Liberian Constitution,
ensuring all persons to be born equally before the law,16
reflects the human rights principles from
CERD and Articles 6 and 8 of the Liberian Constitution reflect principles emanating from the
ICESCR, CEDAW, and CRC. Article 6 affirms the right to equal access to education.17
Article 8
affirms to undertake the responsibility of “ensuring for all citizens without discrimination,
opportunities for employment and livelihood under just and humane conditions, and towards
14 Id. art. 20(a).
15 ICCPR, supra note 6, art 9(1).
17 CONST. OF THE REPUBLIC OF LIBER. art. 6

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promoting safety, health and welfare facilities in employment.”18
Further, the constitution does not
expressly contain protections for citizens with disabilities, which is mandated by the Convention on
the Rights of Persons with Disabilities,19
that at this writing, Liberia has yet to ratify.
The Liberian Constitution’s treatment of citizenship exemplifies the need for reform, as it
violates the human rights principle of non-discrimination through institutionalizing policies of racial
exclusion. Article 27(b) of the Liberian Constitution uses race as a mechanism to discriminate in
determining who may become a citizen.20
It states that citizenship is limited to “persons who are
Negroes or are of Negro decent.”21
The particular socio-political history of Liberia is telling in
determining the motivation for drafting and maintaining such a clause in the constitution which
violates the fundamental human rights principle of non-discrimination. Black emigrants, mostly
from the global North, formed the first Liberian government and were mindful of the various forms
of white domination via slavery and colonization.22
Although the first settlers of African descent
codified their sense of racial protectionism within the framework of the constitution, the Americo-
Liberian governmental officials remained discriminatory in their attempt to “civilize” indigenous
Liberians through the patronage system of favoring certain ethnic groups in order to retain political
power. A racially exclusionary provision in the Liberian Constitution may have intended to preserve
African culture; but it ultimately fostered a political environment of racial alienation and undermined
the legitimate policy of fostering ethnic tolerance.
Liberia’s Constitutional provision making ethnicity serve as a determinative factor in one’s
citizenship violates international obligations because Liberia is a party to CERD. Article 5 of CERD
19 Convention on the Rights of Persons with Disabilities, adopted 13 Dec. 2006, G.A. Res. 61/106, U.N. GAOR, 61th
Sess., U.N. Doc. A/61/611 annex I (2006) (entered into force 3 May 2008).
20 “In order to preserve, foster and maintain the positive Liberian culture, values and character, only persons who are
Negroes or of Negro descent shall qualify by birth or by naturalization to be citizens of Liberia.” CONST. OF THE
REPUBLIC OF LIBER. art. 27(b).
21 Id. art. 27.
22 Alhaji G. V. Kromah, Paper Presented at the National Seminar on Regional Integration: Citizenship and Regional
Integration (Jan. 2008), available at http://alhajikromahpage.org/alhajicitizenintegration.htm.

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states that parties to the treaty shall undertake to prohibit and eliminate racial distinctions to
guarantee the right, among others, to nationality.23
Furthermore, rights guaranteed to those who are
citizens, such as property rights, are discriminately applicable to only “Negroes and persons of
Negro decent,”24
and can lead to the problem of statelessness. This report addresses some of
Liberia’s other international obligations such as the right to education as mandated by the ICESCR.
The actions the Liberian government needs to take to fulfill its international human rights
obligations are not limited to amending the constitution. Such responsibilities may also be realized
by incorporating the obligations into domestic statutes and other non-constitutional law. (This
report explores the possibility of using statute law to fulfill international obligations in Chapters 9
and 10.)
The JPC and the Robert F. Kennedy Center for Justice & Human Rights partnered with the
Urban Morgan Institute for Human Rights at the University of Cincinnati College of Law to assist
with research regarding constitutional reform in Liberia. Bert B. Lockwood, Distinguished Service
Professor and Director of the Urban Morgan Institute, together with Professor Chris Bryant of the
College, offered an advanced human rights seminar course to research Liberia’s international legal
obligations and to provide recommendations for constitutional reform.
Although the seminar limited its research scope to Liberia’s obligations under major human
rights treaties, the resulting report focuses on a broad range of constitutional issues, reflecting the
necessity for a holistic approach to constitutional reform. Chapter 1, gives background and historical
perspective to the current situation in Liberia. Chapter 2, Lessons from an African Continent in
Constitutional Reform, makes recommendations regarding the most effective way to amend the
constitution to ensure that the amendments properly take effect within the country’s legal
mechanisms. Chapter 3, Presidential Tenure and the Liberian Constitution and Chapter 4, Moving Toward a
23 CERD, supra note 5, art. 5(d)(iii).

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Functional Independent Judiciary in Liberia, speak to critical issues Liberia faces in its constitutional
reform: the centralized executive branch and the weak judiciary. Chapter 3 also looks at historical
trends on presidential abuse through constitutional reform of presidential tenure within countries in
Africa and notes that the constitutional safeguards against extending presidential tenure in Liberia,
although sufficient in theory, will probably not suffice in the face of dictatorship. While discussing
the shortcomings in the existing judicial system in Liberia and comparing it to other countries’
attempts to resolve judicial weakness, Chapter 4 aptly recommends that the constitution be amended
to maintain judicial independence.
Chapter 5, Recommendations for Achieving Constitutional Guarantees Within Liberia’s Prison System,
looks into constitutional inadequacies regarding due process rights, specifically within the scope of
Liberia’s prison systems, and makes general recommendations in terms of international oversight
and constitutional amendments. Chapter 6, Necessary Reform for Liberia’s Disheveled Contract Law, makes
the important connection between constitutional reform and governmental transparency by
elucidating the need for the Liberian Constitution to provide mechanisms to prevent resource
exploitation and property looting, a phenomenon that has become a cornerstone in the Liberian civil
wars.
Chapter 7, The Convention on the Rights of the Child in Liberia’s Constitution and Chapter 8, The
Right to Education in Liberia look specifically at international treaties for which Liberia is a party and
makes constitutional reform recommendations. Chapter 7 analyzes Liberia’s obligations under the
CRC; it argues that the reformed constitution should contain explicit provisions for the education of
all children, the demobilization of former child-soldiers, and the accessibility of health care. Chapter
8 addresses the specific right to education, recognizing that as a nation in transition from civil war,
guaranteeing the right to education is imperative in Liberia’s path towards sustainable growth and
development.

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The report broadens its perspective to look at regional mechanisms in enforcing the human
rights obligations in Chapter 9, The African Union, Liberian Constitution, and Conflict Resolution in Modern
Africa and Chapter 10, The African Court on Human and Peoples’ Rights and Amending the Liberian
Constitution. The former recognizes the need for enforcement of Liberia’s human rights obligations
and argues that Liberia should amend its constitution to include a provision authorizing the African
Union to intervene in the event of destabilizing events within Liberia. The latter argues for
amending the constitution to make international human rights binding domestically and also agues
to incorporate the African Court on Human and Peoples’ Rights into Liberia’s Constitution.
The Liberia Constitutional Reform Project hopes to serve as a comprehensive synthesis of
recommendations to ease Liberia’s reform process and ultimately serve as a mechanism to help
prevent the abuse of power and disregard for the rule of law. It is important to note that in the
search for peace and justice within Liberia, it is not only inherent that Liberians comply with the
country’s international obligations, but that reform is necessary to foster a culture of respect for
human rights. For a culture of human rights to exist in Liberia, the citizens must demonstrate a
widely held belief in the aforementioned rights and responsibilities.
Comment [AMK1]: How?
Comment [AMK2]: Not fully
operational.
Comment [AMK3]: ?

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CHAPTER 1: BACKGROUND TO THE SITUATION IN LIBERIA
Liberia was founded in 1822 as a Pan-African movement of the American Colonization Society to repatriate
freed slaves in West Africa. In 1847, the colony became The Free and Independent Republic of Liberia,
making it the oldest republic of Africa. An oligarchy of former American slaves, known as “Americo-
Liberians,” took control of Liberia, even though they constituted only 5 percent of the population.1 Despite
being founded with the altruistic motives of repatriating former slaves to the continent of Africa and
spreading Christianity, the small Americo-Liberian minority began to control and exploit the indigenous
population.2 Liberia’s constitution even denied equal rights to the indigenous population of Liberia.3 For
nearly 100 years the Americo-Liberians controlled the country, and the repression of the indigenous
population was considerable, eliciting a reprimand by the League of Nations in 1931.4
In 1944, President William Tubman began a series of political reforms to allow greater participation
of the indigenous population in the government. Women and indigenous property owners were given the
right to vote in the presidential election in 1951.5 In 1964, suffrage was granted to the entire indigenous
population, and the government gave out scholarships to allow increased access to secondary education.6
Tubman remained in office until his death in 1971,7 and after his death, William Tolbert became president of
Liberia. President Tolbert’s tenure, however, was marred by a collapse in the global commodities markets,
which affected the main exports of Liberia—iron ore and rubber. In fact, Firestone has had a rubber
plantation in Liberia since 1926.
In 1979 riots broke out in the capitol city of Monrovia. A combination of low wages on exports and
increased rice prices, the staple of the Liberian diet, triggered mass demonstrations that became violent. Many
1 ADEKEYE ADEBAJO, LIBERIA’S CIVIL WAR: NIGERIA, ECOMOG, AND REGIONAL SECURITY IN WEST AFRICA 21
(2002).
2 JOHN-PETER PHAM, LIBERIA: PORTRAIT OF A FAILED STATE 7 (2004).
3 Id. at 21.
4 Id.
5 Timeline: Liberia, http://news.bbc.co.uk/2/hi/africa/country_profiles/1043567.stm.
6 PHAM, supra note 2, at 22.
7 Id. at 7.

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soldiers in the Liberian military refused to fire on civilians, leading the government to bring hundreds of
soldiers from Guinea to quell the uprisings.8
On 12 April 1980, Master Sergeant Samuel Doe seized power by storming the Executive Mansion
with the help of twenty-eight non-commissioned officers in the Liberian military, killing all twenty-six people
inside.9 The coup was completed ten days later when the thirteen most senior officials of the Americo-
Liberian oligarchy, who had survived the coup, were executed on national television.10
Although Head of State Doe promised sweeping reforms, he proved to be as much a strongman as
President Tolbert. Head of State Doe promoted his own ethno-linguistic group, the Krahn, to the most
important government positions, a practice similar to the Americo-Liberian government. Although the Krahn
only comprised 5 percent of Liberia’s population,11 Doe’s government gave them 33 percent of all
government jobs, two thirds of the senior positions, and complete control of all senior military commands.12
Human rights abuses were rampant under the Doe regime, and he used his office and the military to brutally
stifle any dissent.13
In an effort to lend legitimacy to his regime, Head of State Doe organized an election in 1985, but these
elections were “as unfree as they were unfair.”14 Before the ballots could be counted, Doe ordered all the votes
be returned to the capital for tabulation. Although the election was blatantly rigged, Samuel Doe won with only
50.9 percent of the votes and the US government declared the results legitimate.15 In reaction to the results,
Thomas Quiwonkpa, Commanding General of the Armed Forces of Liberia and Senior Council Member of the
ruling People’s Redemption Council attempted to launch a coup against Doe. General Quiwonkpa was
considered to have the full support of his army. However, the US Embassy warned Head of State Doe, and the
coup was brutally quashed.16 Eventually, Doe reserved all important government positions to the Krahn tribe
8 Id. at 76.
9 ADEBAJO, supra note 1, at 25.
10 Id. at 26.
11 STEPHEN ELLIS, THE MASK OF ANARCHY: THE DESTRUCTION OF LIBERIA AND THE RELIGIOUS DIMENSION OF AN
AFRICAN CIVIL WAR 31 (1999).
13 Id.
15 ELLIS, supra note 11, at 59.
16 Id.

12
and developed a cooperative relationship with the Mandingo tribe. In contrast, Doe considered the Gio and
Mano ethnic groups to be threats to his power, and carried out a policy of discrimination and repression
towards the two groups. As a result of this patronage system, Doe initiated the use of ethnicity as an integral
part in Liberian politics, ultimately beginning an era of ethnic hostility between indigenous Liberians.17
The turmoil reached its climax on 24 December 1989 when Charles Taylor’s National Patriotic Front
of Liberia (NPFL) initiated an uprising against the Doe government with the help of Côte d’Ivoire, Burkina
Faso, and Libya.18 The Independent National Patriotic Front of Liberia (INPFL), a splinter group of NPFL
led by Prince Johnson,19 assassinated Doe, beginning a seven-year war that would claim a quarter million
lives.20 As a result of the fallen Doe regime, multiple factions came into existence in an effort to gain
governmental control.21
The neighboring countries, all members of the Economic Community of West African States
(ECOWAS), had direct interest in the conflict, as the Liberian civil war could cause a ripple effect in West
Africa’s stability.22 Under Nigerian and Ghanaian leadership, the military arm of ECOWAS, known as the
ECOWAS Monitoring Group (ECOMOG), deployed a force to intervene in the conflict. The force began
initially as half-Nigerian and half-Ghanaian, but as the seven-year deployment continued, Nigeria ultimately
contributed 75 percent of the troops to ECOMOG and 90 percent of the funding.23 Nigeria had a national
interest in combating Charles Taylor; Nigeria feared that Liberia would become a refuge for anti-Nigerian
forces if Charles Taylor were to come into power, due to Taylor’s support from Nigeria’s rival, Côte
17 Luca Renda, Ending Civil Wars, The Case of Liberia, 23 FLETCHER F. WORLD AFF. 59, 64 (1999).
19 Prince Johnson is currently a member of the Liberian Senate.
20 ARTHUR KULAH, LIBERIA WILL RISE AGAIN 11 (1999).
21 Warring factions include: National Patriotic Front of Liberia (NPFL), established by Thomas Quiwonkpa and later led
by Charles Taylor; Independent National Patriotic Front of Liberia (INPFL), led by Prince Yormie Johnson; Lofa
Defense Force (LDF), one faction was allied with NPFL while another was led by Francois Massaquoi; Liberia Peace
Council (LPC), led by George Boley; Liberian United Defense Force (LUDF), formed by General Albert Karpeh and
later merged with ULIMO; and United Liberation Movement for democracy in Liberia (ULIMO), originally led by
General Albert Karpeh then split into to two factions: ULIMO-K (under Alhaji Kromah) and ULIMO-J (under
Roosevelt Johnson).
23 Id. at 52.

13
d’Ivoire.24 The Organization of African Unity (OAU) called for greater representation of other counties in the
ECOMOG force, but these calls fell upon deaf ears.25
Looting among all rebel factions was rampant during the conflict, and the multiple factions
supported their campaigns by looting wherever they went. To further complicate the situation, ECOMOG
took part in the sacking of Monrovia.26 By the end of the conflict many Liberians stated that ECOMOG
really stood for “every car or movable object gone.”27 In addition, ECOMOG seized a substantial portion of
UN humanitarian aid entering the country and used it to supply their troops.28 After seven years of fighting,
the country was reduced to rubble and hundreds of thousands of lives were lost.
The parties were eventually brought to the negotiating table in the mid-1990s. By 1996, the Abuja II
Accords brought a temporary end to the hostilities,29 as an agreement revised from a 1995 version extended
the timetable for implementation of the disarmament by nine months and threatened international sanctions
against any leader who violated the agreement.30 Even though the direct fighting stopped, many of the
warlords refused to disarm, leaving huge caches of small arms not under government control around the
country.31
In 1997, Charles Taylor was elected president, and his newly formed National Patriotic Party won a
majority in the National Assembly.32 International observers declared the election to be free and fair,33
including the United Nations Observer Mission in Liberia and ECOWAS.34 It is believed, however, that he
won due to the widespread belief that if not elected, he would begin a new war. The slogan spontaneously
24 Christopher Tuck, “Every Car or Moving Object Gone,” The ECOMOG Intervention in Liberia, AFR. STUD. Q., Spring 2000,
http://www.africa.ufl.edu/asq/v4/v4i1a1.htm.
26 Id. at 80.
29 Id. at 196. Chronology, LIBERIAN POST, http://liberian.tripod.com/Post22.html.
30 Terence Lyons, Liberia’s Path From Anarchy to Elections, 97 CURRENT HIST. 229 (1998).
32 Timeline: Liberia, supra note 5.
33 Id.
34 Lyons, supra note 30.

14
created by mainly youthful fighters, “He killed my ma, he killed my pa, but I will vote for him,”35 exemplifies
the likelihood of coercion.
Taylor’s tyrannical and dysfunctional government eventually led to a new rebellion in 1999, initiating
a second civil war involving various militant factions around the country fighting for access to Liberia’s
resources, including timber, iron ore, rubber, gold, and diamonds. President Taylor was able to use ethnic
divisions as a means to achieve absolute power, ultimately obtaining economic and political control. Ethnic
tensions played a key role in the war and were used mainly as a tool aimed at rousing lower and middle level
fighters to action.36 Before and during his reign as president, Charles Taylor used Liberia’s resources as a
means of obtaining and retaining power. For instance, in 1992, five years before his presidency, Charles
Taylor signed a “Memorandum of Understanding”37 with management at the Firestone Plantation,38 in which
Firestone paid NPFL US $2 million annually in exchange for protection.39 In addition, he smuggled conflict
diamonds, before their trade was reduced due to international sanctions, after which timber became the
primary resource to control.40 In 2000, Global Witness estimated that the timber trade was worth at least US
$100 million annually,41 but only US $7 million went to government coffers, while civil servants remained
unpaid and the only university in Liberia remained closed for lack of funds.42 Most money was used by Taylor
to support the patronage system, to fund arms purchases, and to terrorize the population.43 To accomplish
this, he would first agree with foreign business people to grant licenses to extract and export resources in
return for tax payments in US dollars.44 Taylor would then use the money from the business deals to purchase
35 Sarah Left, War in Liberia, GUARDIAN, 4 Aug. 2003,
http://www.guardian.co.uk/world/2003/aug/04/westafrica.qanda.
36 Renda, supra note 17, at 65.
37 DOS-469: Issued January 28, 1992; To: Washington, DC; From: Conakry Embassy; Subject: El Haji Kromah
Expresses Disappointment on Slow Progress of Yama IV; Cable # 00512, in Urban Morgan Inst. for Human Rights,
Liberia: Freedom of Information Act Project Report 16 (2008) (unpublished report, on file with the RFK Center).
38 Firestone Plantation has been in operation in Liberia since 1926.
39 DOS-469, supra note 37.
40 MICHAEL RENNER, THE ANATOMY OF RESOURCE WARS 24 (2002).
41 GLOBAL WITNESS, TAYLOR-MADE—THE PIVOTAL ROLE OF LIBERIA’S FORESTS AND FLAG OF CONVENIENCE IN
REGIONAL CONFLICT 1 (2d ed. 2001), available at
http://www.globalwitness.org/media_library_detail.php/97/en/taylor_made.
42 RENNER, supra note 40, at 24.
43 Id.
44 ELLIS, supra note 11, at 90.

15
arms in the underground market, importing them through Côte d’Ivoire.45 Charles Taylor was able to retain
power, at least in part, through his relationship with Sierra Leonean revolutionary Foday Sankoh. Taylor and
Sankoh met while in Libya in the 1980s in order to gain Libya’s support.46 As a result of this relationship,
Charles Taylor helped fund the Revolutionary United Front (RUF), led by Sankoh, by trading arms and
conflict diamonds in Sierra Leone’s brutal civil war.47
As a result of President Taylor’s misrule, former adversaries resumed armed rebellion. Liberians United
for Reconciliation and Democracy (LURD), backed by the Guinean government, emerged in northern Liberia
while Movement for Democracy in Liberia (MODEL) emerged in the south. Both rebel groups were fighting
for renewed control over resources and power, as they occupied areas rich in resources. Due to intense US and
international pressure, Charles Taylor resigned as President in 2003 and took asylum in Nigeria,48 while the UN
stepped in to mediate peace agreements. In July 2003, the Government of Liberia, LURD, and MODEL
signed a ceasefire following talks arranged by ECOWAS, the OAU, and the UN.49 In the same year, the
Catholic Justice and Peace Commission advocated with the international community and called for the
establishment of an independent human rights commission working to seek justice for the victims of the two
civil wars in Liberia. This led to the creation of the National Human Rights Commission50 and the Truth and
Reconciliation Commission.51 The peace agreement allowed Liberia to hold an election on 8 November 2005, in
which Ellen Johnson-Sirleaf was elected President of Liberia, becoming the first female head-of-state in Africa.
Charles Taylor is currently on trial in the UN-backed Special War Crimes Court for Sierra Leone at The
Hague on eleven counts of war crimes, crimes against humanity, and other serious violations of international law
45 Id.
46 Mark Tran, Q&A: Charles Taylor and Conflict in West Africa, GUARDIAN, 4 June 2007,
http://www.guardian.co.uk/world/2007/jun/04/westafrica.qanda.
47 Id.
48 U.S. Dep’t of State, Background Note: Liberia, http://www.state.gov/r/pa/ei/bgn/6618.htm.
49 Binaifer Nowrojee, The Status of Human Rights Organizations in Sub-Saharan Africa: Liberia,
http://www1.umn.edu/humanrts/africa/liberia.htm.
50 An Act to Repeal the Act of 1997 Creating the Liberian Commission on Human Rights and to Create the Independent
National Commission on Human Rights of Liberia 2005, approved 11 Mar. 2005, available at
http://www.unhcr.org/refworld/docid/473c68c72.html.
51 An Act to Establish the Truth and Reconciliation Commission (TRC) of Liberia, approved 10 June 2005, available at
http://www.ecoi.net/file_upload/1504_1216973850_an-act-to-establish-the-truth-and-reconciliation-commission-trc-
of-liberia-2005.pdf.

16
committed during Sierra Leone’s conflict.52 Taylor is charged with crimes including murdering and mutilating
civilians, using women and girls as sex slaves, and abducting adults and children to perform forced labor or
become child soldiers.53 Charles Taylor is charged based on his connection with the RUF and the Armed Forces
Revolutionary Council, both warring rebel groups in Sierra Leone.54 He has yet to be charged for his role in
committing human rights atrocities in the two Liberian conflicts.
President Sirleaf has helped guide economic reforms in Liberia, resulting in restrictions on the
international timber and diamond trade being lifted. Such economic recovery serves as an indicator that Liberia
is on a general path to recovery in a post-conflict environment. Also under President Sirleaf, Liberia has been
tasked with the immense burden of rebuilding and reforming the historically corrupt judicial system. While
domestic and international organizations and individuals have contributed during Liberia’s postwar years to
improve and reconstruct the legal system, it is still far from perfect. Corruption still permeates all levels of
the judiciary, and the country’s slowly recovering infrastructure still cripples the efficiency of the court
system.
Liberia has two concurrent systems: the statutory and the customary judicial systems. The statutory
system includes a supreme court, twenty circuit courts, 130 magistrates’ courts, and around 300 justices of the
peace (JPs). The customary structure follows African customary law, and also follows a hierarchy. A case
starts before locally-elected chiefs and village elders, then moves up to chief courts, then to district
commissioners and superintendents, and finally to the Office of Tribunal Affairs under the executive branch
of the government. Most Liberians prefer the customary system because it is more accessible, especially in
the countryside, and it is said to promote community togetherness. However, this preference reflects the lack
of confidence the country has in its own statutory judicial system.
Corruption begins at the lowest levels of the court system. The JP is the first judicial official a
Liberian would approach with a legal problem, however, JPs are not on the judicial payroll. They operate on
52 Prosecutor v. Taylor, Case No. SCSL-03-01-PT, Second Amended Indictment (29 May 2007).
53 News Release, Human Rights Watch, Charles Taylor: Liberian Ex-President Goes on Trial (31 May 2007),
http://www.hrw.org/en/news/2007/05/31/charles-taylor-liberian-ex-president-goes-trial
54 Id.

17
a “pay-yourself” basis, leading to excessive fines and charges even to hear a case.55 JPs also often hear cases
beyond their jurisdiction, discounting and disrupting any precedent set by higher courts. Because of this,
cases are won, lost, and dismissed based on what a Liberian can afford. The executive branch’s close
involvement with the judiciary, especially in appointing all officials, does not help combat corruption.
Even where judges are not corrupt, the court system may be inaccessible. Due to years of war,
Liberia’s infrastructure including roadways electricity grids, and even buildings have been destroyed and are
only slowly being rebuilt. This means some courthouses are nonfunctional, practically impossible to access,
or simply no longer in existence. If a case cannot be heard on its scheduled day for any of these reasons, the
court’s backlogged docket only mounts. Because circuit court judges’ bench assignments rotate throughout
the country periodically, when these courts cannot “function, the most serious cases languish in legal
limbo.”56
55
INT’L CRISIS GROUP, LIBERIA: RESURRECTING THE JUSTICE SYSTEM, AFRICA REPORT N°107 (Apr. 2006), available at
http://doc.operationspaix.net/serv1/ICG_liberia_resurrecting_the_justice_system_2006-04-06_.pdf.
56
Id at 5.

18
CHAPTER 2: LESSONS FROM AN AFRICAN CONTINENT IN CONSTITUTIONAL
REFORM1
Introduction
The Liberian bi-cameral legislative system, a double-redundant system through which any legislation or
amendment must pass, works effectively in tandem with the constitutional requirement that any amendment
be passed by a nation-wide referendum. This chapter, though looking merely at the structure of the Liberian
amendment process, finds this structure to be inherently sound. Other options do exist that could further
tighten the amendment procedure, including, but not limited to, national publication of proposed
amendments, cooling-off periods prior to amendment passage, and the involvement of state regional
governments in the amendment process. Depending on how the Liberian Constitutional amendment
procedure works in reality, it may or may not be worth the Liberian Human Rights Commission’s time to
seek amendment of the procedure.
I. The Amendment Process
Aside from developing a written constitution from which to base the laws of a country, a basis for amending
it also must be established to “perfect the imperfections.” Although the legislative body of a new government
will be tasked with passing everyday legislation, allowing amendments to the constitution to be treated akin to
legislation would relegate amendments to the equal status of parking tickets and corporate laws of
governance. If a constitution is to be changed with such ease and with such little oversight, this constitution
would become meaningless as a legal instrument of a stable democracy and would cease to be a product of
the people it is meant to govern.
The framers of a modern constitution must expect it to last against time and would therefore not
expect for it to be amended by a simple act of legislation. They would require, instead, a special amendment
procedure.2 Special procedural safeguards outside of those provided for day-to-day legislation are essential to
1 Written by Keith Hagan, University of Cincinnati College of Law Class of 2007.
2 John Hatchard, ‘Perfecting Imperfections’: Developing Procedures for Amending Constitutions in Commonwealth Africa, 36 J. MOD.
AFR. STUD. 381, 382 (1998).

19
protect against hastily drawn up and poorly planned, politically-centered, and unfavorable retrogressive
amendments.3 In developing an amendment process:
The critical issue is to provide a clear distinction between the procedure for amending the
constitution, which requires a high level of public debate and participation, and that for the passing of
“ordinary” legislation. The development of a satisfactory procedure means that any amendment of the
constitution is legitimized in the eyes of the people, and confidence in the entire document
maintained. . . . This is best achieved through approval both by a popularly elected constituent
assembly and in a national referendum.4
If a constitution were left to the same means of passage as common legislation, “a constitution,
which is to some extent a device for preserving certain states of affairs, might become a device for
undermining the very states of affairs it is designed to preserve.”5
In regard to these concerns, the constitution and the amendment process of Liberia are well above
the curve. As it now stands, to amend the Liberian constitution any such amendment would need to pass the
House of Representatives as well as the Senate before being held up before the nation as a referendum.6
Options do exist, however, for making the amendment process stronger—and questions remain about the
stability of what may only appear to be a stable process. This chapter seeks to analyze the various
components of Liberia’s amendment process and will focus on the redundant nature of its bi-cameral
legislature, the stability of its national referendum, and other exigent strategies that those interested in
strengthening the process may want to consider for inclusion in the amendment process.
A. Parliaments and the Westminster Export Model
Modern constitutions in Africa tend to closely follow the Westminster Model, which centers the power of
guarding the constitution upon a parliamentary body.7 Even with its faults, this model continues to exert
3 Id.
4 Id. at 398.
5 Id. at 382.
6 CONST. OF THE REPUBLIC OF LIBER. art. 29. Although a referendum is called for in the constitution, oddly, it does not
state a percentage passage rate requirement. Seeing as many African countries require anywhere between fifty percent to
nearly 100 percent passage for a referendum, it cannot be assumed that Liberia’s quotient is any one number. Likewise, if
no standard referendum passage rate has been established, the nation of Liberia would be loathe not to establish one –
establishing a referendum passage rate when a specific amendment comes to fruition could very well become a recipe for
disaster.
7 Hatchard, supra note 2, at 397.

20
tremendous influence on African constitutions, especially those in Commonwealth African countries.8 Under
this system, the parliament, considered the “guardian of the constitution,” is given the task of approving any
amendment by a special majority, which is usually constituted of no less than two-thirds of the parliament
membership.9 Commiserate with this passage is the publication of the proposed amendment in a government
newspaper no less than thirty days prior to its first reading by the parliament.10 The 1964 Zambian
constitution is an example of this model, including that a bill to amend the constitution required no less than
two-thirds of all parliamentary members to pass.11
This system is supported by experts such as former UN Assistant Secretary-General for Human
Rights Ibrahima Fall, who in 1993 declared that “in their daily work of transforming the will of the people
into law and in controlling the Executive and public administration, parliaments and parliamentarians are
often the unsung heros [sic] of human rights.”12
B. Political Domination as a Hindrance to the Westminster Doctrine
These Special Parliamentary Majority Procedures (SPMPs) continue to form the basis for formal
constitutional amendments in most of Commonwealth Africa, but reliance upon parliamentary bodies for this
purpose remains a far from perfect system.13 As is common in Africa, Zimbabwean politics in the 1980s and
1990s was dominated by one party, Zimbabwe African National Union-Patriotic Front (ZANU-PF), which
held 147 of the 150 seats, making the two-thirds majority needed to pass a constitutional amendment an easy
affair with little-to-no political wrangling or debate required.14 Incidentally, since Zimbabwe’s independence
in 1980, many amendments have attempted to destroy the jurisdiction of the court system, specifically by
attempting to prevent the Supreme Court from hearing cases relating to the scope of fundamental rights
8 Id. at 384.
9 Id.
10 Id. at 385.
11 Muna B. Ndulo & Robert B. Kent, Constitutionalism in Zambia: Past, Present and Future, 40 J. AFR. L. 256, 264 (1996).
13 Id.
14 Id.

21
provisions.15 When the majority party was unable to properly limit its scope, amendments were proposed to
actually overturn the Supreme Court’s decisions when they were handed down.16
In the Chileya case in 1990, the Zimbabwe Supreme Court was set to rule on the question of whether
or not execution by hanging was considered inhuman or degrading treatment or punishment under article
15(1) of the constitution.17 Before a decision could be given, a constitutional amendment was introduced to
parliament which specifically upheld the constitutionality of death by hanging.18 As the ZANU-PF party held
a clear majority of the seats, the amendment was passed with little parliamentary debate, effectively
overturning the Supreme Court’s jurisdiction to decide the issue while it was deliberating.19 The Minister of
Justice, Legal and Parliamentary Affairs then rubber stamped the amendment, stating that any court decision
contrary to the amendment “would be untenable to government which holds the correct and firm view. . .
[and] that Parliament makes the laws and the courts interpret them.”20
The Catholic Commission case, also argued before the Zimbabwe Supreme Court, resulted in a similar
amendment after the Court tried to ban death by hanging and get around the Chileya ruling. In this instance,
the Supreme Court found that prolonged delay of trial, harsh prison conditions, and finally the execution of
the condemned prisoner, together resulted in inhuman and degrading treatment contrary to article 15(1).21
Under this popular ruling, death sentences were to be commuted to life in prison and petitions of mercy were
to be dealt with swiftly by the executive.22 However, even in the face of strong public support, the decision
met with strong resistance from the government. Amendment No. 13, in response to Catholic Commission, was
passed easily by parliament in 1993 and retrospectively exempted the death penalty from the scope of article
15(1); as with the Chileya case, the strong ZANU-PF majority passed the amendment with little parliamentary
debate.
15 Id.
16 Id.
17 State v. Chileya, SC 64/90 (1990) (unreported), cited in Hatchard, supra note 2, at 385.
18 Id.
19 Id.
20 Id. at 386.
21 Catholic Comm’n for Justice & Peace in Zimb. v. Attorney-General, 1993 (4) SA 239 (S. Ct.), cited in Hatchard, supra
note 2, at 386.
22 Id. No longer than three months was considered expedient.

22
C. Parliamentary Apathy as a Hindrance to the Westminster Model
Aside from the damage a one-party system or a clearly dominant political party can do to the protections
assumed to be afforded by the Westminster Doctrine, another problem arises in the form of parliamentary
apathy. For instance, the amendment proposed in response to Chileya was buried within a politically charged
bill that dealt with the popular topic of land issues. Therefore, the parliamentarians remained highly interested
in passing the bill due to the land issues within but spent little time discussing the far from popular
amendment against article 15(1) that was attached to it.23
Likewise, there is no guarantee that members of parliament will understand the amendment they are
voting on or, as has already been seen, that they will afford it discussion. Precious little discussion surrounded
the passage of Zimbabwe’s 1993 Act before it was overwhelmingly voted for, and, ironically, those that did
speak out in favor of or against the amendment on the record appear to not have understood the actual
outcome of the Catholic Commission case itself.24
Drawing an even clearer picture of how bad parliamentary apathy was in this case, the original vote
on the amendment had to be reorganized and held a second time. So little was known by the parliamentarians
about the actual amendment procedure, they neglected the fact that a two-thirds special majority had to be
found and not just a simple majority. Amendment No. 13 was so rushed and with such little discussion that
the vote itself had to be nullified and redone.25
D. Cleaning up the Westminster Model
It is arguable that relying upon parliament, alone, to protect the constitution is a tricky business. In response
to the amendments made regarding Chileya and Catholic Commissions, John Hatchard states that, “[o]verall,
these (and other) amendments have undoubtedly enhanced executive power and curtailed the enjoyment of
23 Id.
24 Id. at 387.
25 Id.

23
fundamental rights, whilst the role of the compliant ‘rubber-stamp’ legislature only goes to emphasize the
limitations of the special parliamentary majority procedure.”26
In response to this concern, as of 1998, SPMPs have been retained as the process for making all
constitutional amendments in Zimbabwe, Zambia, and Kenya, and remain part of the amendment process in
South Africa, Sierra Leone, Seychelles, Lesotho, Malawi, and Ghana. SPMPs require a special majority,
instead of what is allowable for everyday legislation, in order to demand consensus from a legislative body
before an amendment is passed. From the list of African countries that employ it, it is clearly a popular
method of amendment, but aside from issues of party domination that could overcome any quota, there is no
agreement among these constitutions as to what constitutes a special majority.27 Zimbabwe, for instance,
requires a perfect vote of 100 percent for its SPMP,28 while South Africa requires 75 percent. On the lower
end, Zambia, Seychelles, and Lesotho require a two-thirds majority, and Kenya a 65 percent vote.29
Unfortunately, no consensus exists as to which quota works best.
Two concerns exist regarding the SPMP: (1) The need to ensure that no one political party has the
sole right to amend the constitution for its own partisan purposes; and (2) The need to protect the position of
minorities.30 In order to answer these concerns it can be proposed that, instead of a simple SPMP for the
entire parliament, any amendment must enjoy the support of a special majority of the members of the ruling
party together with a special majority of the members of the opposition, whether the main and opposition
parties are singular groups or coalitions.31 By including not only the ruling party but also the majority of the
opposition, involvement of a wider range of political opinion is also included. Subsequently, the increased
range of political opinion would also improve parliamentary debate (because more people will have to be
26 Id. at 388.
27 Id. at 290.
28 It must be mentioned that in light of previous discussion of the domination of Zimbabwean politics by the
ZANU(PF) party, requiring a 100 percent SPMP for amendments in Zimbabwe is arguably the best protection a simple
Westminster Doctrine country could afford itself.
30 Id. at 390-391.
31 Id. at 391.

24
persuaded than just the supporters of the amendment) and would also develop a stronger group approach
that sustains the possibility of lifting the discussion above base party politics.32
E. The Liberian Situation
The Liberian amendment process already requires both the House and Senate to pass any proposed
amendment and incorporates a SPMP of a two-thirds majority in each for passage. Depending on how this
method has served the country to this point, it may be a logical extension of the Liberian amendment process
to include SPMPs for both majority and opposition parties in the House and Senate in order to eliminate any
possibility of party domination, as was seen in Zimbabwe. The need for increased consensus on both sides of
the aisle may also provide unexpected benefits, such as intra- and cross-aisle consensus building and increased
discussion and debate.
As stated by Muna Ndulo and Robert Kent, “Action by a [SPMP] in Parliament is one appropriate
step. If it teaches nothing else, painful experience demonstrates that it cannot be the only step.”33 If the
situation dictates, strengthening Liberia’s SPMP regime in these ways may increase its efficacy.
II. Adding a Second Chamber to the Westminster Model
A. The Upper House
Many problems with the Westminster Model’s one-chamber-parliament-constitutional-watchdog approach
can be overcome by involving another chamber in the process, as the power of one chamber to veto another
would provide checks and balances to the system of making amendments. The effectiveness of this addition,
of course, will be limited by the make-up of the upper chamber. In Zimbabwe, for instance, the Senate is
indirectly elected and simply reflects the make-up of lower house, once again providing the ruling party with a
majority.34
In Malawi and South Africa, however, the populace directly elects both houses. In these two
countries, any constitutional bill must therefore pass a special majority in the lower house as well as garner the
32 Id.
33 Ndulo & Kent, supra note 11, at 278.

25
approval of six out of nine provinces in the upper house.35 Likewise, in Namibia, a two-thirds special majority
is required in the lower house while the president retains the right to make any amendment bill a subject of a
national referendum.36
To better solidify this process, aside from being directly elected by the populace, the most effective
upper chamber would be constructed to be representative of a wider range of civil society than that which
makes up the lower. Malawi, for instance, requires that in its upper house thirty-two of its eighty Senators
must come from interest groups such as women’s associations, the disabled, trade unions, and the health,
education, and farming sectors, thereby making it represent a wider range of civil society than what is found
in the lower house.37 Likewise, in Namibia and South Africa, the upper chamber is selected to reflect regional
and provincial interests.38
Aside from changing the make-up of the Senate to be more in line with Malawi, which would not
necessarily be suggested, Liberia largely passes this test with two directly elected legislative bodies. Forcing
proposed amendments through both of them allows for a healthy dose of redundancy and represents a
healthy aspect of Liberia’s current amendment procedure.
B. The Upper House, the Regional House, and the Kitchen Sink
As well as using an upper house as a check on a legislature’s amendment process, contingent agreement by
regional governmental bodies can also be used. The Nigerian Constitution provides that certain sections of
the constitution (including fundamental rights, the establishment and composition of parliament, the
legislative lists, the composition of the Supreme Court and its jurisdiction to interpret the constitution and the
amendment procedure itself) must not only pass a special majority of two-thirds of both houses, but also the
approval of both houses of at least three of the four regional governments.39 However, it remains to be seen
if such triple redundancy is more effective at controlling the amendment process or is actually a hindrance to
progress.
35 Id.
36 Id.
37 Id.
38 Id.
39 Albert E. Utton, Nigeria and the United States: Some Constitutional Comparisons, 9 J. AFR. L., 40, 58 (1965).

26
If change is needed in Liberia’s amendment process, this may be an option—though it should be last
on the list of options. Other opportunities, such as widespread publication and the use of constituent
assemblies, should be considered first.
III. National Referendums as a Tool of the Amendment Process
Beyond the Westminster Model lies the national referendum. By encouraging the full participation of the
people for whom the constitution is meant to govern and for whose laws any amendment would change,
referenda are arguably the most legitimate means of securing the amendment process. Not only do national
referenda encourage the full participation of the people, they also require deeper consideration by any
parliament before its members seek to change a fundamental provision that the people enjoy, and they
improve the chances that an amendment will receive serious consideration while simultaneously countering
executive attempts to use a compliant legislature as a mere rubber stamp.40
In Malawi, any amendment to a fundamental principle or a human rights provision listed in the
constitution requires both a national referendum, and, if passed, a simple parliamentary majority vote.41
Likewise, in Lesotho, an amendment cannot be submitted to the king unless, within two to six months
following parliamentary approval, it has been passed by a national referendum.42 Uganda, Sierra Leone, The
Gambia, and Seychelles also require that any amendment of a fundamental part of their constitutions must be
affirmed by a national referendum as well as a special majority.43
Situations where the requirement of a national referendum has helped a country avoid detrimental
and political amendments are not difficult to find. Perhaps one that is most indicative is a constitutional
provision introduced in Zambia in 1996 that would have required both parents of any presidential candidate
to be born in Zambia for their offspring to run for office. The fact that this provision was proposed during a
presidential election only solidifies the fact that it was a purely selfish partisan move. However, although the
40 Hatchard, supra note 2, at 393. National referenda are also highly effective methods for the amendment process in
countries that are unicameral, posing as a check on a parliamentary body that would otherwise receive little to no
oversight.
41 Id. at 392.
42 Id.
43 Id. at 392-93.

27
two-thirds special majority was easily attained, the 1991 Zambian constitution also required a national
referendum. Knowing that it would never pass, the provision was never put to a vote.44
SPMPs can be employed along with national referenda, and it can be assumed that making the SPMP
process a bi-cameral affair would only strengthen the situation. Another option for strengthening national
referendums is to require special majorities in the case of amendments directly affecting fundamental rights.
Sierra Leone’s 1991 constitution, as well as that of Namibia, requires a two-thirds approval by national
referendum when the amendment applies to fundamental rights.45 Likewise, The Gambia requires a 75
percent passage rate.46 Seychelles’ 60 percent requirement actually led to the failure of the 1992 draft
constitution referendum and the eventual adoption of one that was more acceptable.47
Using national referenda for the purpose of the amendment process comes with drawbacks, but
these hindrances are mostly surmountable. For instance, requiring a referendum may delay the
implementation of provisions that would strengthen fundamental rights.48 The adage “all good things to those
who wait” applies here, and this negative quickly becomes a small price to pay for the reward of a carefully
considered amendment—not to mention the possible prevention of hastily introduced and unwarranted
retroactive legislation.49 Requiring a national referendum may also inconvenience the passage of minor
amendments that do not discuss fundamental rights. Malawi has already reacted to this situation, however, by
stipulating that if an amendment does not affect a fundamental right or the substance of the constitution
itself, only a two-thirds vote of the legislature is required and the need for a referendum can be dropped.50
Likewise in the early 1964 Zambian constitution, a national referendum was only required for amendments
that would affect fundamental rights.51
44 Id.
45 Id.
46 Id.
47 Id. at 394.
48 Id.
49 Id.
50 Id. However, this would present a suspect situation that could be used for political purposes. What constitutes an
amendment that does or does not affect the “substance of the constitution?”
51 Ndulo & Kent, supra note 11, at 264. This provision did not last long in the constitution and was eliminated by a 1969
amendment that, ironically, passed a national referendum. Its repeal is representative of just what it was supposed to
protect against: “This repeal was aimed specifically at facilitating amendments to the rights of property, but its
implications were far broader. In 1968 the government had embarked on economic reforms designed to enhance

28
It can also be argued that national referendums are expensive to organize both in a financial sense as
well as in man-hours.52 This would present a relatively acute problem in Africa’s poorer countries, including
Liberia. However, assistance would arguably be available from USAID, the European Union, and others for
just this purpose.53
Liberia is ahead of the curve with respect to national referendums, requiring a two-thirds passage for
all proposed amendments. If this were not to work as securely as hypothesized or if using a national
referendum for all amendments was too cumbersome, restricting referendums to only those amendments that
deal with fundamental rights may be a possibility for the future. Likewise, if money becomes an issue, a more
thorough search for international assistance is necessary.
IV. Constituent Assemblies as a Tool of the Amendment Process
The fundamental weakness of opposition parties, the unrepresentative nature of parliaments and the possible
strict hegemony of a ruling party could make a legislative body unsuited to the task of controlling the
amendment procedure.54 In some situations, in order to counter this situation a means of amendment
procedure outside of the legislative process must be found—an option such as employing constituent
assemblies. If the most important aspect to be retained in the amendment process is that a constitution
continues to reflect the will of the people, why, then, not have a strong cross-section of the people directly
involved in the process of modifying it.55
The 1995 Ugandan constitution, for instance, was approved by an assembly composed of 214
popularly elected members, 39 women (one from each district) and representatives of the army, trade unions,
political parties, youth, and disabled.56 According to Hatchard: “A double-locking mechanism that requires a
African participation in the economy. The government desired to take over substantial sectors of private businesses
through large-scale nationalizations. The property clause as it existed was seen as an impediment to these measures. The
removal of the referendum clause was alter to facilitate the adoption of a one-party system of government. It avoided
the need for a referendum to do so and left the entire Constitution subject to amendment if those in control possessed a
majority of two-thirds in Parliament.” Id.
53 Id.
54 Id. at 394-95.
55 Id. at 395.
56 Id.

29
substantive constitutional amendment to obtain approval both of a representative constituent assembly and
the people in a national referendum is surely the best way forward, and it is unfortunate that none of the new
constitutions of Commonwealth Africa adopt this approach.”57
Similarly, in Zambia, a constitutional commission established to research the future 1996 constitution
recommended that in order to achieve maximum consensus the Constitution should be adopted through a
constituent assembly, filled by representatives of all political parties and members of Zambian society,
including, but not limited to, all professions, the labor movement, employers, churches, women’s groups, and
students.58 The Commission furthermore “decried the long-standing practice by which Zambian
Constitutions have appeared as schedules to Acts of Parliament. . . . many were nervous that future
constitutional amendments not be enacted like ordinary pieces of legislation.”59
It remains to be seen, however, that this approach would be better than a truly representative uni- or
bi-cameral amendment engine that is backed up by a national referendum, as has been discussed, although
constituent assemblies present interesting opportunities. If the Liberian system of amendment were to break
down due to deadlock in the House and Senate, the use of constituent assemblies is an option.
V. Publication as a Tool of the Amendment Process
Aside from legislative or constituent assemblies originally passing amendments and following this solution up
with national referendums, public notice and nation-wide publication of a proposed amendment presents
itself as a useful tool for the process. Zimbabwe, South Africa, and Zambia require publication of any
proposed amendment at least thirty days before its first reading in the legislature.60 The Gambia, likewise,
requires at least a three-month notice to be posted in the government gazette.61
Aside from publication, South Africa also requires a “cooling off” period for a proposed
amendment—no amendment can be put to a vote in the National Assembly within thirty days of its
57 Id.
58 Ndulo & Kent, supra note 11, at 272.
59 Id. The government eventually dismissed this portion of the Mwanakatwe Report, choosing instead to amend the 1991
Constitution by Act of Parliament. However, the government did choose to stay away from provisions related to
fundamental rights, allowing them to be subject to referendum. Id. at 274.
61 Id.

30
introduction or tabling.62 This added precautionary measure not only works to stimulate public awareness but
also increases the chance of lobbying efforts both by indigenous groups and by NGOs.63
To increase the usefulness of publication, a requirement to demand widespread dissemination would
be beneficial. Publication in a government gazette three months prior to an amendment’s introduction is a
good start, but publishing it in all of the major news media as well as in all languages spoken in a country
would help in getting the public’s attention.64 In Zimbabwe, for instance, compulsory purchase of land by the
government must be published once in the government gazette and twice “in a newspaper circulating in the
area in which the land is to be acquired is situated and in such other manner as the acquiring authority thinks
will best bring the notice to the attention of the owner.”65
Liberia would do well to publish its proposed amendments and to do so in the most extensive way
possible. It can only help the amendment process for more people to now of what is going on and to become
involved in the discussion.
VI. Other Options
Although the combined options of SPMPs, national referendums, publication, and even the use of
constituent assemblies would enhance the amendment process, other possibilities remain—though they are
not all beneficial. The option remains to make some provisions, such as fundamental rights and freedom
provisions that incorporate inalienable rights provided in human rights documents, un-amenable. This
approach “envisages the strengthening of fundamental rights as appropriate (‘perfecting imperfections’) but
preventing their being weakened (protecting ‘perfection’).”66 It can, however, cause broad political
disaffection in certain instances.
62 Id.
63 Id. at 396.
64 Id. Requiring, statutorily, that proposed amendments be published in “all major news media” rather than in specific
gazettes would avoid the possibility of specifically stated gazettes becoming obsolete. A blanket rule of “all major news
media” may avoid this issue by requiring publication in the popular media of the time.
65 Id. at 396.
66 Id. at 397

31
Article 131 of Namibia’s constitution prohibits the repeal of any provision if it “diminishes or
detracts from the fundamental rights and freedoms contained in the constitution.”67 Although on its face this
would appear to be a sound decision, the Namibian government ran into non-partisan difficulty with its
constituents when overwhelming support for a return to capital punishment was denied by the government
due to its conflict with fundamental rights. “A totally inflexible model,” Hatchard states, “could introduce
serious constitutional tensions.”68 Luckily, Article 131 is unique to Namibia, and no other African
constitution has yet to incorporate such an inflexible model, as what is perfect today may not necessarily be
perfect tomorrow.69
Similarly, in Ghana the Revolutionary Council inserted un-amenable “Transitional Provisions” into
the constitution that, unlike Namibia, were not even concerned with fundamental or human rights
provisions.70 These unalterable provisions insured that no incoming government or court could change
certain decisions made by the Revolutionary Council when they designed the Constitution. Strong protest
followed this decision regarding the people’s right to amend any constitutional provision under which they
consent to be governed.71 As in Namibia, this, too, was a unique situation and has yet to be duplicated.
This should serve merely as a warning for Liberia not to engage in any of these practices as they have
already proved themselves to be self-defeating. The only limitation towards amending listed in the Liberian
constitution, however, appears to work in Liberia’s favor: Article 87(a) does not allow the passage of any
amendments during a state of emergency. On its face, this Article would appear to prevent unfavorable,
hastily drawn up amendments to be passed. However, it may also prevent the passing of favorable, yet hastily
drawn up amendments.
Conclusion
Liberia’s amendment process is already strong in theory, and if it is hindered in actual application there are
options to make its process smoother. The Liberian amendment process already requires both the House and
67 Id. at 396
68 Id. at 397
69 Id.
70 Id. at 384
71 Id.

32
Senate to pass any proposed amendment and incorporates a SPMP of a two-thirds majority in each for
passage. If desired, it may be a logical extension of the Liberian amendment process to include SPMPs for
both majority and opposition parties in the House and Senate in order to remove any possibility of party
domination. The need for increased consensus on both sides of the aisle may also provide unexpected
benefits, such as intra- and cross-aisle consensus building and increased discussion and debate. If more is
needed, the “kitchen sink” method of incorporating state regional governments into the special majority
process may be an option, though this may work to throttle progress. If none of these solutions were to
work, Liberia would have the option to employ constituent assemblies, although this should only be
attempted if there is a complete breakdown of the current system.
Liberia is also ahead of the curve with respect to national referendums, requiring a two-thirds passage
for all proposed amendments. Again, if this were not to work as securely as hypothesized or if using a
national referendum for all amendments was too cumbersome, restricting referendums for only those
amendments that deal with fundamental rights may be a possibility. Likewise, if money becomes an issue, a
more thorough search for international assistance may be necessary.
The one change that Liberia could make to improve upon its current amendment model would be to
publish proposed amendments in a widespread manner through popular publications. Making this change,
which would be purely superficial and cause no change in the substance of government or the amendment
procedure, would be beneficial in getting the public’s attention and drawing them into the debate. In doing
so, it would entwine them in the constitution and its proposed amendment, making them part of the process
that is their country and their law.

33
CHAPTER 3: PRESIDENTIAL TENURE AND THE LIBERIAN CONSTITUTION
1
Introduction
Although the Liberian requirements for presidency, term lengths, term limits, and presidential security of
tenure are not very different from many national constitutions around the world, many nations, especially
those in Africa, have manipulated term limits in controversial constitutional amendments. Thus, the
importance of scrutinizing such constitutional issues becomes apparent in the context of Liberia. This chapter
will focus on Liberia’s current Constitutional provisions relating to presidential tenure and will take a closer
look at the various methods used by Nigeria and Uganda to manipulate the constitution in their countries in
order for the reader to better understand potential weaknesses within the Liberian Constitution which may
lead to a dictator abusing presidential tenure in order to remain in power.
Politicians use different rationales to justify movements for ridding the constitution of term limits.
One of the most common arguments against the use of term limits is that it takes away the right of voters to
be represented by the politician of their choice. It is often argued that if the public wishes to re-elect their
representative, it is undemocratic to prevent them from doing so. Term limit opponents also argue that
having a set term limit results in a lack of experienced presidents. When a new president enters office, much
time is wasted in the process of adjusting to office and learning the traits of presidency. Another argument
against term limits is that it is the very fact that politicians need to go back to the voters for approval and
reelection that keeps them responsive. With term limits, a lame duck president no longer has any motivation
to continue heeding the concerns of his citizens.
Alternatively, there are many arguments traditionally made in favor of term limits. For example, it is
argued that term limits prevent incumbents from using the benefits of office to remain in power indefinitely.
A president seeking re-election often ties up a lot of the nation’s assets for this selfish purpose. Also, it is
often argued that term limits prevent presidents from making choices solely to prolong their career. If a
president can serve as many terms as they wish, they may be tempted to follow policies which will ensure
their long-term political survival, rather than policies which further the interests of voters. Also, imposing
1 Written by Mazen Nayfeh, University of Cincinnati College of Law Class of 2007.

34
term limits on the presidency ensures that there will always be vacancies for new candidates to pursue.
Unfortunately the trend in recent years has proven that most of these arguments for term limits have been
very real.
Recently, term limit extension efforts have been prevalent in African politics. Many countries have
attempted, sometimes successfully, to change the current constitutional presidential term lengths or number
of terms allotted to an individual. This trend has been occurring since the 1960s when many African nations
received independence from colonial control.2 Constitutional amendments to alter term limits in Africa are
rarely attempted without great detriment to their respective countries.
Many long-term leaders are raising the issue of amending the constitution to allow for additional
terms because they are coming to the end of their tenure.3 During an interview with Voice of America in
2006, Olly Owen, a research associate with the Centre for Democracy and Development said, “Incumbents
enjoy power, and when they reach the end of their tenure they don’t want to go. That’s a self-reinforcing
trend if you’re in a political environment where personalities are strong and institutions weak. And the more
that people change the rules to suit themselves, the more powerful they become and the less powerful the
rules become.”4 Owen says African countries in general are freer in terms of freedom of speech, freedom of
the press, and the public right to protest, so these issues become a matter of public discussion.5
In recent years, Malawi, Zambia, Nigeria, Togo, Uganda, Chad, and Zimbabwe have all tried to
manipulate the constitution of their countries. Unfortunately, most of these countries (Togo, Uganda, Chad,
and Zimbabwe) were successful in the change. Owen says that “countries successful in that effort are based
on militaristic ‘status, socialist, guerrilla movements who feel they have a right to inherit the state.’ By
contrast, governments not successful in changing the constitution to allow a third term ‘came in as civilian
political parties through electoral rule’ and those elected are not powerful enough to change the rules.”6
Owen continues to say, “constitutions themselves tend to dictate how they can be changed,” through built-in
2 Interview by Cole Mallard with Olly Owen, Africa's Presidential Term Limits: Changing the Rules, (VOA radio broadcast 30
May 2006).
3 Id.
4 Id.
5 Id.
6 Id.

35
directions and instructions. It is easier to change in some countries than others: “If you dominate the
parliament of a country, and if you dominate the media and public debate, then you can really leverage as
much as you want.”7
This section of the chapter will take a closer look at the Nigeria as a case study of an African country
that was unsuccessful in amending the constitution. Then, the next section will discuss Uganda, an example
of an African country that was successful in manipulating the constitution to allow the current president
additional terms.
I. Nigeria: A Botched Attempt to Retain Power
One example of a botched attempt by an African leader to continue power was that of President Obasanjo of
Nigeria. Obasanjo was a military ruler in the 1970s and was elected president in 1999.8 His inauguration
ended decades of turbulent and often repressive rule, mostly by the military he controlled. He won re-election
in 2003 and stepped down in May 2007.9 Like most African leaders seeking a third term, Obasanjo never
publicly declared he was out for an extra term. His political party used government funds to gain support for
an extra term in office.10
Obasanjo’s quest for additional time in office created many hardships for the people of Nigeria.
During the chaotic time between campaigning for a constitutional amendment, militants in the Niger delta,
seeking more of the money flowing from the oil wells there, have stepped up their campaign of kidnapping
foreign workers and attacking oil installations.11 Also, Nigeria witnessed a large increase in violence between
Muslims and Christians. President Obasanjo cracked down on the opposition by using the government’s
vaunted anti-corruption drive to knock opposition leaders out of contention. He has also been said to have
fomented some of the instability so that, if successful in changing the constitution, he could then pose as a
strong man in next presidential election and secure his third term as the savior of a disintegrating country.12
7 Id.
8 When Enough is Enough: Term Limits in Africa, ECONOMIST, 6 Apr. 2006.
9 See A First in Nigeria: A Peaceful Succession of Power, N.Y. TIMES, 30 May 2007, at A6.
10 When Enough is Enough, supra note 8.
11 Id.
12 Id.

36
However, the Nigerian Senate voted to reject a constitutional amendment allowing President
Olusegun Obasanjo to seek a third term. Nigeria differs from most African countries in the way in which the
constitution is amended. Nigeria requires the support of two-thirds of each chamber as well as approval from
two-thirds of Nigeria’s states.13 Many other nations require only two-thirds majority of Parliament. The
United States, the United Kingdom, and UN Secretary-General Kofi Annan criticized the effort to let
Obasanjo stay in power, saying it threatened to undermine democracy. Leading Nigerian politicians, including
both of the most prominent candidates to succeed him, also criticized the push. Nigeria’s anti-corruption
agency opened an investigation into allegations of bribery by the supporters of a third term.14 Opponents
repeatedly alleged that millions of dollars in bribes were offered to supporters.15 Supporters of Obasanjo
insisted that they would try to facilitate another alternative to keep the president in the 2007 elections. Any
attempts failed, however, and Umaru Yar’Adua was elected in Nigeria’s first democratic presidential transition
since gaining its independence forty-seven years earlier.16
II. Uganda: A Successful Attempt to Retain Power
For many African leaders, unfortunately, staying in power becomes an all-consuming passion, always to the
detriment of their own country and people. That has been true of Robert Mugabe in Zimbabwe, Eyadéma
Gnassingbé in Togo, Yoweri Museveni in Uganda, and Idriss Déby in Chad for some time. It was hoped that
the introduction of new constitutions with two-term limits on power would consign the “big man” syndrome
of African politics to history.17 This worked in South Africa and Tanzania, but in too many countries term
limits are failing to block the vaulting egos of leaders determined to cling on.
Perhaps one of the most famous recent successful attempts to delimit the number of terms in office
for a national president is that of President Museveni of Uganda. In 2006 Yoweri Museveni won a third term
as Uganda’s president by using his huge majority in parliament to push through a constitutional amendment
13 Nonso Okafo, Selective Constitutionalists and the Third (Fourth) Term Travesty: Will You Steal from Your Children?,
NIGERIAWORLD, 6 Jan. 2006, http://nigeriaworld.com/articles/2006/jan/062.html.
14 Id.
16 A First in Nigeria: A Peaceful Succession of Power, supra note 9.

37
letting him run again.18 Yoweri Museveni has been the President of Uganda since 1986 when he assumed
power after the toppling of Milton Obote’s regime. In 2001 Museveni won his second term in office during
the presidential elections by a substantial majority, with his former friend and personal physician Kizza
Besigye as the only real challenger. There was much recrimination and bitterness during the 2001 presidential
election campaign, and incidents of violence occurred following the announcement of the results.19 Besigye
challenged the election results in the Supreme Court of Uganda. Two of the five judges concluded that there
were such illegalities in the elections and that the results should be rejected. The other three judges decided
that the illegalities did not affect the result of the election in a substantial manner, but stated that “there was
evidence that in a significant number of polling stations there was cheating” and that in some areas of the
country, “the principle of free and fair election was compromised.”20
After the 2001 elections, political forces allied to Museveni began a campaign to loosen constitutional
limits on the presidential term to allow him to stand for election again in 2006. The 1995 constitution allowed
for a two-term limit on the tenure of the president. Given Uganda’s history of dictatorial regimes, this check-
and-balance was designed to prevent a dangerous centralization of power around a long-serving leader.
Museveni’s moves to alter the constitution and attempts to suppress opposition political forces have
brought much criticism from domestic commentators, the international community, and Uganda’s aid
donors. In a press release, the main opposition party, the Forum for Democratic Change (FDC), accused
Museveni of engaging in a “life presidency project,” and of bribing members of parliament to vote against
constitutional amendments. FDC leaders claimed:
The country is polarized with many Ugandans objecting to [the constitutional amendments]. If
Parliament goes ahead and removes term limits this may cause serious unrest, political strife and may
lead to turmoil both through the transition period and there after . . . . We would therefore like to
appeal to President Museveni to respect himself, the people who elected him and the Constitution
under which he was voted President in 2001 when he promised the country and the world at large to
hand over power peacefully and in an orderly manner at the end of his second and last term.
Otherwise his insistence to stand again will expose him as a consummate liar and the biggest political
fraudster this country has ever known.21
18 Who's For President? Yoweri Museveni, Though Losing Popularity, Looks Set to Stay in Power, ECONOMIST, 18 Feb. 2006.
19 Id.
20 Id.
21 Press Release, Forum for Democratic Change, FDC Position on Amending Article 105(2) of the Constitution (27 June
2005).

38
Museveni had previously stated that he considered the idea of clinging to office for “fifteen or more”
years ill-advised and made known that he “is a member of a club of African leaders inebriated with power,”
comparing himself with Robert Mugabe and Charles Taylor, both considered to be champions of African
leadership.22 Comments by the British anti-poverty campaigner Bob Geldof sparked a protest by Museveni
supporters outside the British High Commission in Kampala. “Get a grip Museveni. Your time is up, go
away,” said the former rock star in March 2005, explaining that moves to change the constitution were
compromising Museveni’s record against fighting poverty and AIDS.23 In an opinion article in the Boston
Globe and in a speech delivered at the Wilson Center, former US Ambassador to Uganda Johnnie Carson
heaped more criticism on Museveni. Despite recognizing the president as a “genuine reformer” whose
“leadership [has] led to stability and growth,” Carson also said, “we may be looking at another Mugabe and
Zimbabwe in the making.”24 “Many observers see Museveni’s efforts to amend the constitution as a re-run of
a common problem that afflicts many African leaders an unwillingness to follow constitutional norms and
give up power.”25
Norway, the United Kingdom, and Ireland announced symbolic cutbacks in foreign aid to Uganda in
response to political leadership in the country. “Our foreign ministry wanted to highlight two issues: the
changing of the constitution to lift term limits, and problems with opening the political space, human rights
and corruption,” said Norwegian Ambassador Tore Gjos.26 Of particular significance was the arrest of two
opposition MPs from the FDC. Human rights campaigners charged that the arrests were politically
motivated. Human Rights Watch stated that “the arrest of these opposition MPs smacks of political
opportunism.”27 A confidential World Bank report leak suggested that the international lender might cut its
support to non-humanitarian programs in the Uganda. “We regret that we cannot be more positive about the
present political situation in Uganda, especially given the country’s admirable record through the late 1990s,”
22 Wafula Okumu, The Travails and Antics of Africa's "Big Men" - How Power Has Corrupted African Leaders, PERSPECTIVE
(Atlanta), 11 Apr. 2002, http://www.theperspective.org/africabigmen.html.
23 Ugandans March Against Bob Geldof, BBC NEWS, 22 Mar. 2005, http://news.bbc.co.uk/2/hi/africa/4371265.stm.
24 Johnnie Carson, Op-Ed., A Threat to Africa’s Success Story, BOSTON GLOBE, 1 May 2005, at D11.
25 Id.
26 Danial Wallis, Norway Cuts Aid to Uganda Over Political Concerns, REUTERS, 19 July 2005.
27 News Release, Human Rights Watch, Uganda: Key Opposition MPs Arrested (27 Apr. 2005),
http://www.hrw.org/en/news/2005/04/26/uganda-key-opposition-mps-arrested.

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