Author: Urias Teh Pour
Executive Director, Independent National Commission on Human Rights (INCHR), Liberia
For the first time in the political history of Liberia, Liberians in the diaspora are making a strong case for their inclusion in the 2023 general and presidential elections. This call has come at the time when the Alien and Nationality Act of 1973 which prohibited dual nationality has been amended. The amended Act, Alien Nationality Law of 2022, provides that ‘any person who acquires another in addition to his or her Liberian citizenship shall not [be] deemed to have relinquished his or her Liberian citizenship.’
The passage of this law led to a wave of calls for the democratisation of electoral politics, considering the huge population of Liberians living abroad and their aspiration to participate in elections to elect their leaders at home. The Liberia Demographic Survey of 2021 projected Liberia’s population at 5.18 million. There are approximately 1.2 million Liberians and people with Liberian heritage scattered all over the globe, with the majority living and referring to the United States as their home. Some statisticians have predicted that the on-going population and housing census would exceed the projected number.
Diaspora Liberians, many of whom fled the country as refugees due to the civil war, have argued that their connection to Liberia remains strong and they are contributing to the post-war reconstruction and development of Liberia, including through remittances to relatives and family members. According to the World Bank “Migration and Remittances Data”, diaspora Liberians contributed 20.4 percent of the Country’s GDP between 2004-2013 through remittances . Liberians in the diaspora have contended further that the right to vote is a means by which people can democratically elect the government of their choice, an inherent right of all citizens that is a crucial part of democracy.
Professor Jallah Barbue, an expert on Liberian constitutional law, argued that absentee voting under the Liberian Constitution applies to all Liberians living in Liberia who cannot vote on Election Day at designated polling centers due to unavoidable circumstances, as well as Liberians living abroad. He also asserted that the right to vote defines citizenship, is enshrined in the Constitution and in the international human rights framework, and must include all Liberians regardless of their geographical location. He concludes that what works best for Liberians in the diaspora is normal voting outside the country through embassies, as many African countries have done, including Kenya and Ghana, and which others, such as the Democratic Republic of Congo, are willing to experiment. These examples from African countries show that there is a growing consensus that the participation of the African diaspora in elections is as important as that of citizens living in their countries, given, among other things, that global and continental human rights instruments encourage popular participation.
Do global human rights instruments support the participation of diaspora voters?
Within the international human rights framework, the right to participate and vote is a fundamental right in international and regional human rights instruments. Liberia ratified the International Covenant on Civil and Political Rights (ICCPR) in September 2004. Article 25 of ICCPR recognises and protects the right of every citizen to take part in the conduct of public affairs and to vote and urges States, regardless of the form of their constitution or government, to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy their right to vote.
The Human Rights Committee asserts in General Comment 25 that States Parties to the ICCPR must guarantee the rights enshrined in Article 25, which expresses the principle of “one person, one vote”, as well as ensure that electoral boundaries are established in a way that does not distort voter distribution or discriminate against any group. To ensure compliance with the ICCPR standards, the Committee requires State Parties to include in their periodic reports measures adopted to certify and give effect to free expression of the will of the electors, as well as to provide information on laws and procedures that ensure that the rights of all citizens are exercised.
In addition, Liberia has signed the International Convention on Migrant Workers’ Rights, the normative content of which contains instructive provisions. Article 41 (1) of the International Convention on Migrant Workers calls on the state party to facilitate the enjoyment of the right to participate in the public affairs of their home state. Under Article 18(1) of the 1969 Vienna Convention on the Law of Treaties, ratified by Liberia in 1985, a state that has signed but not ratified a treaty is under the obligation not to ‘defeat’ its ‘object and purpose’. This requires reasonable measures to allow Liberians in the diaspora to participate in elections without hindrance. Building on this provision, the UN Special Rapporteur on the human rights of migrant workers has encouraged the facilitation of voting rights for non-resident citizens. He further states that the participation of citizens abroad in national public life and their right to vote must be guaranteed in law and in practice.
Fostering the participation of diaspora voters through AU instruments
At the regional level, Article 13 of the African Charter on Human and Peoples’ Rights provides that ‘[e]very citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law,’ Article 3 of the African Union Constitutive Act calls for the promotion of democratic principles and institutions as well as popular participation and good governance. Although Liberia has signed but not yet ratified the African Charter on Democracy, Elections and Good Governance, its provisions only further develop the democratic principles already provided for in binding instruments such as the African Charter. Article 4(2) of the Charter urges state parties to recognize popular participation through universal suffrage as an inalienable right of the people. Similarly, the African Commission on Human and Peoples’ Rights (African Commission), in its resolution 174 (2010), calls on states to ‘[e]stablish impartial and non-discriminatory procedures for all voting processes.’ These international human rights instruments have not made residency a permissible limitation on human rights, and the African Commission on Human and Peoples’ Rights has stated that the rights contained in the Charter are non-derogable rights.
The African Commission has developed a three-pronged test for human rights restrictions in a complaint (Gabriel Shumba and Others (represented by Zimbabwe Lawyers for Human Rights v The Republic of Zimbabwe (2020)) by Zimbabweans living in South Africa that their right to vote was violated. Prior to this decision, the Commission stated in Purohit and Moore v. The Gambia (2003) that voting restrictions must be based on objective and reasonable grounds. That said, in Gabriel Shumba and Others (represented by Zimbabwe Lawyers for Human Rights v The Republic of Zimbabwe, the Commission asserted that, firstly there must be a consideration of ‘whether there were any duly enacted law that restricted the right.’ This speaks to the principle of legality. ‘Secondly, whether the justification forwarded by the State pursued a legitimate purpose and that the means adopted served that intended purpose.’ This second test relates to the legitimate purpose any limitations must serve in a democratic society. Last, the limitation should be necessary and proportionate to the aim sought to be achieved. In other words, a nut should not be cracked with a sledgehammer.
In each of the three tests, the Commission stated that the law providing for the restriction must be sufficiently clear given the centrality of legal certainty to the rule of law, drawing from Sunday Times v the United Kingdom case decided by the European Court on Human Rights, that “the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.’
In Gabriel Shumba and Others (represented by Zimbabwe Lawyers for Human Rights) v The Republic of Zimbabwe where citizens of Zimbabwe argued that they have the right to vote outside their country of origin, the Respondent State raised lack of resources as the reason why it was unable to ensure diaspora voting. To this, the Commission asserted that though it ‘would naturally entail more expenses, without specific data and evidence, it is not possible for the Commission to truly appreciate the difference in cost between elections that include or exclude citizens that are resident abroad.’ The Commission concluded that the justification provided by the Respondent State was not sufficiently justifiable.
Expounding on the third test whether legislation restricting the right of independence candidates to participate in presidential elections was a necessary restriction, the African Court on Human and Peoples’ Rights in Mtikila v Tanzania stated that the legitimate interest must be proportionate with and absolutely necessary to the advantages which are to be obtained. The Court stated that the principle of necessity also entails that States take the least intrusive or disruptive action to achieve their aims. The Court concluded that, when there are multiple options available to achieve similar aims, States are obligated to take the course of action least restrictive of the enjoyment of the right in question. Section 5.5 of the 1986 New Election Law provides that ‘[a] registered voter who is absent from the country during an election and wishes to vote shall request the Commission [by] registered mail for an absentee ballot forty five (45) days before an election…’ This provision supports article 80 (c) of the Constitution which grants similar rights. Thus, deleting the provision requiring absentee vote by the Legislature through the Election Law of 2004 (which amended the 1986 New Election Law) without reasonable grounds such as ‘collective security, morality and common interest’ as provided for by the African Charter on Human and Peoples’ Rights is arbitrary. It further defeats the purpose of article 11 (c) of the Constitution which provides for equality and non-discrimination of all Liberians before the law. The government and the National Elections Commission (NEC) have so far failed to provide reasons for refusing to include provisions for absentee voting in the planning processes, and perhaps to find less intrusive ways to accommodate all Liberians, rather than violating the Constitution.
Liberian Constitution and diaspora voters
Chapter 3 of the Constitution of 1986 guarantees a range of rights. It includes the equality clause, and provides that all Liberians regardless of race, sex, creed, place of origin or political opinion, are entitled to the fundamental rights and freedoms. Article 5(a) enjoins the Legislature to ‘enact laws promoting national unification and encouragement of all citizens to participate in government.’ Moreover, article 80(c) articulates provisions for absentee voting. It asserts,
Every Liberian citizen shall have the right to be registered in a constituency, and to vote in public elections only in the constituency where they registered, either in person or by absentee ballot; provided that such citizen shall have the right to change his voting constituency as may be prescribed by the Legislature
In addition, article 77 (b) of the Constitution provides the manner in which voting shall be held, stating that:
All elections shall be by secret ballot as may be determined by the Elections Commission, and every Liberian citizen not less than 18 years of age, shall have the right to be registered as a voter and to vote in public elections and referenda under this Constitution. The Legislature shall enact laws indicating the category of Liberians who shall not form or become members of political parties-
The prevailing constitutional provisions were sufficiently validated by section 5(5) of the 1986 New Election Law until that provision was repealed in 2004. Thus, it is tenable to argue that the framers of the 1986 Constitution did not intend to disenfranchise Liberians on the basis of their geographical location.
The 2014 amendment to the New Elections Law does not contain a provision that divests Liberians in Liberia and those in the diaspora the right to vote. Section 5.1 of the 1986 New Election Law (as amended in 2004) under the captioned “who may Vote” provides:
Except one who has been judicially declared to be incompetent or of unsound mind, or who has been barred from voting as a result of his/her conviction and imprisonment for an infamous crime which disenfranchised him as a voter and has not been restored to full citizenship, a Liberian citizen who has attained the age of 18 years or above with a valid registration card may vote at any election in the voting precinct of an electoral district for which he or she is registered.
Additionally, Section 3.1 of 2014 the Act provides that ‘[a] person must register to vote at a voter registration centre established by the NEC for the place where he or she ordinarily resides and must vote at the polling place established by NEC for voters registered at that centre.
It is evident that the provisions of the Election laws afford every Liberian citizen the opportunity to vote and that the National Election Commission (NEC) is under legal obligation to give effect to Section 3 .1 (a) of the New Elections Law amended 2014 and Sections 3.1 and the constitutional provisions mandating absentee voting. The framers of the Constitution and referenced statutes intended for all Liberians, wherever they reside, to exercise the right to vote. NEC’s deliberate attempt not to consider diaspora Liberians in the scheduled registration of voters for the 2023 General and Presidential Elections contravenes the statutes and particularly article 2 of the Constitution which provides that ‘[a]ny laws, treatise, statutes, decrees, customs and regulations found to be inconsistent with the Constitution it shall, to the extent of the inconsistency, be void and of no legal effect.’
The constitution succinctly answers the controversial question of whether a constituency can be established outside Liberia. The inclusion of absentee voting by the framers of the constitution was intended to create the conditions for all Liberians, wherever they may be, to exercise their constitutional right to elect their leaders. The government of Liberia would, therefore, be well advised to establish polling stations in its foreign embassies or to establish other mechanisms – such as digital voting methods – to fulfil this sacred constitutional mandate.
About the Author:
Urias Teh Pour is Executive Director of the Independent National Commission on Human Rights (INCHR) of Liberia. The INCHRL is a status ‘A’ accredited National Human Right Institution (NHRI) by the Global Alliance of National Human Rights Institutions (GANHRI). He holds a Master of Law (LLM) from the Centre for Human Rights, Faculty of Law, University of Pretoria. He previously worked for the Carter Centre ‘Access to Justice Project’ in Liberia and as Human Rights Officer with the United Nations Mission in Liberia (UNMIL). He is also an Adjunct Lecturer in the Department of Political Science at the University of Liberia.
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