The Electoral Laws of Liberia
Brief 2
The Electoral Laws of Liberia
A primer on the legal and policy framework for the 2023 General and Presidential Elections
Introduction
On October 10, 2023, Liberians will be voting for a president, vice president and members of its legislature in the fourth general elections — since the end of the Liberian civil war in 2003.
The Constitution of Liberia (1986), the New Elections Law of 1986 (lastly amended in 2014) and a series of guidelines and regulations, such as the Campaign Finance Regulations of 2022 of the National Elections Commission (NEC), constitute the primary legal framework governing the conduct of elections to public offices in Liberia. The National Code of Conduct for all Public Officials and Employees of the Government of Liberia (Code of Conduct Law) and relevant opinions of the Supreme Court of Liberia relating to electoral matters also form part of the legal framework for public elections.
The ‘Election Commission’, established by the Constitution as an autonomous public commission (designated as the National Elections Commission in the Elections Law), is responsible for conducting elections for all elective public offices and administering and enforcing all election laws throughout the Republic of Liberia. The Elections Law details the powers and duties of the NEC and provisions on the appointment and tenure of its officials.
This primer provides essential information on the relevant legal framework governing the 2023 elections to enhance public understanding of the laws.
Important election dates
The Constitution of Liberia fixes the election date as the second Tuesday in October of the election year (Article 83 [a]). For this election year, this day falls on October 10. The NEC must declare the results of the elections 15 days after the casting of the votes. This means results of the October 10 elections are expected to be announced by October 25. In the event no candidate wins an absolute majority in the presidential election during the first ballot, the NEC is mandated by the Constitution (Article 83 [b]) to hold a runoff election between the two candidates with the highest number of votes ‘on the Second Tuesday following’ the announcement of the results in the first election. Therefore, should there be a need for a run-off presidential election following the October 10 vote, the NEC will conduct that election no later than Tuesday, November 7. However, if there is a legal challenge against the first ballot, the run-off may be deferred to a later date, pending the resolution of disputes.
Another essential matter is Liberia’s election calendar. Due to climate change and the shift in Liberia’s climatic calendar, discussions about whether the second Tuesday of October is ideal have emerged as a pertinent constitutional matter. Proposals to shift this date to November have been rejected at two separate constitutional referenda in 2011 and 2020. Also, there have been renewed proposals to amend the constitution and provide a flexible election timeframe instead of a fixed date. This new proposal emerged twice when the special senatorial elections in 2014 and 2020 could not be held on selected constitutional dates due to the Ebola Virus Disease and Covid-19 outbreak.
Candidature
The Constitution and the Elections Law outline the qualifications to become a candidate in the elections. For the House of Representatives and Senate, the constitution (Article 30) provides that candidates must be Liberian citizens aged 25 years and 30 years, respectively. Additionally, prospective candidates must be “domiciled in the county or constituency to be represented not less than one year before the time of the election and be a taxpayer” (Article 30 [b]).
For the office of President, the constitution (Article 52) provides that an eligible candidate should be “a natural born Liberian citizen of not less than 35 years of age; the owner of unencumbered real property valued at not less than twenty-five thousand dollars; and resident in the Republic ten years before the election” (Article 52).
The Thresholds for Winning an Election
Presidential election: The Presidential election is conducted on a two-round electoral system. One must win an absolute majority (fifty percent plus one vote) of the vote on the first ballot to be declared the winner. In the event no candidate obtains an absolute majority (fifty percent plus one vote) on the first ballot, a second ballot shall be conducted on the second Tuesday following the announcement of the results of the first ballot. The two candidates who obtain the highest number of valid votes on the first ballot shall be designated to participate in the run-off, and the candidate who receives the majority of the valid votes cast on the second ballot is elected. (Elections Law, Section 4.15a).
Legislative elections: Election to the House of Representatives and the Senate are determined by a simple majority of the votes. Before the 2011 constitutional referendum, the election to the Legislature was determined by an absolute majority.
Complaints and Dispute Resolution
The Constitution provides that “[a]ny party or candidate who complains about the way the elections were conducted or who challenges the results thereof shall have the right to file a complaint with the Elections Commission… Any political party or independent candidate affected by [decisions of the Election Commission] shall not later than seven days appeal against it to the Supreme Court” (in Article 83[c]). According to the Constitution, the NEC must impartially investigate and render a decision in a complaint received within 30 days. Parties can appeal against a ruling of the NEC at the Supreme Court, but such an appeal must be filed within seven days of the verdict by the NEC. The NEC also has seven days to respond to the notice of the appeal.
The NEC dispute resolution process commences with the NEC Magistrates (deployed in the counties) and the NEC Dispute Hearing Officers (based at the NEC headquarters). The magistrate adjudicates first-instance disputes relating to election offences and violations. In contrast, the Dispute Hearing Officer adjudicates matters relating to results, intra-party disputes, and violations of campaign finance requirements. Decisions of magistrates and hearing officers can be appealed to the NEC Board of Commissioners, and the ruling of the Board can be appealed to the Supreme Court of Liberia. The figure below illustrates how this mechanism works.
The Elections Law also provides for complaints. It provides in Section 5.10 that a voter, candidate, or registered political party may submit a complaint to the Commission if it believes there was a violation of the Constitution, the Elections Law, or a regulation issued by the Commission during any stage of the election. However, a complaint must be submitted no later than seven (7) days after the time the offence or violation was witnessed, in writing, signed by the witness, accompanied by any evidence the complainant has, and shall be submitted by delivery (Section 5.11).
Over the years, many candidates and voters have utilized the dispute settlement mechanism to seek redress during campaigns and after elections. The number of post-election disputes and complaints has increased steadily over the years. While in 2005, the NEC received only 22 complaints after the general and presidential elections, in 2011, it received more than 50 post-election complaints. This increased nearly 100% in 2017 when the NEC received 98 post-election complaints. Though most post-election complaints were against the NEC, many observer groups commended the NEC dispute resolution process for being ‘independent’ and ‘impartial’. However, there have been concerns that NEC magistrates in the counties do not have sufficient legal training to handle some cases and that the number of complaints usually overstretches the available capacity at the NEC. To address this capacity gap, the NEC usually hires and trains additional hearing officers to support the magistrates in the counties.
The long-term solution, however, as many propose, is to absolve the NEC of this quasi-judicial function to allow it to focus exclusively on electoral management while the courts deal with legal disputes.
Women’s Participation
Liberia has no specific legislation that promotes women’s political participation nor a law that sets a quota for women in national leadership structures. The Constitution and regulations related to the election are gender-blind: Men and women have equal chances to seek elected offices under the rules. However, women have faced numerous socio-cultural and economic barriers to being elected or appointed to vital political offices. Currently, there are only eight women in the 73-seat House of Representatives: and two women in the 30-seat Senate. Efforts by women’s groups over the last 20 years to promote an affirmative action law for women’s political representation have failed to pass.
A requirement for women candidates to constitute at least 30 percent of parties’ candidates for elected offices was first introduced in the electoral guidelines during the 2005 special elections. Nonetheless, this was not legally binding, and no political party met the quota. In 2010, a “Gender Equity” bill sought to reserve 30 percent of legislative seats for women. In 2016, an “Affirmative Action for Equitable Participation and Representation” bill sought to secure a quota of fifteen legislative seats for women and other minority groups. None of these proposals were adopted.
The current Elections Law provides that political parties “should endeavor to ensure that the governing body and [their] list of candidates has no less than 30% of its members from each gender”. While this is implicitly a provision to promote gender balance (or, more significantly, women’s inclusion in the list of candidates), the phrase “endeavor to ensure” is ambiguous, and the law provides no sanction for parties that fail to comply with this requirement. Uncommonly few parties met this requirement in the last election of 2017. In 2022, The legislature passed a bill amending several provisions of the Elections Law and included a gender quota requirement for parties’ candidate lists for elected offices. However, the President vetoed the bill due to disagreements with several of its sections.
The proposed bill would have made it legally binding for political parties’ candidate listings for elections to have at least 30 percent of each gender and provide for budgetary appropriation each year — especially in the election year — to invest in programs, projects and activities to incentivize women participation in politics.
Political parties and the NEC have recently signed a Memorandum of Understanding (MoU) relating to women inclusion and participation in the 2023 elections. The parties agreed to ensure that women occupy at least 30% of seats in their candidate listing submitted to the NEC for the 2023 general and presidential elections. While this MOU demonstrates political parties’ support for women’s political participation, it does not carry the force of law, and it remains to be seen how this MOU will make a difference.
Campaign Financing
All Campaign Financing activities conducted by political parties, alliances, coalitions and candidates are governed by the Constitution, the Elections Law and the Campaign Finance Regulations of 2022. Only citizens of Liberia or people of Liberian origin (18 years of age and above) may contribute to the funds and election expenses of any political party or candidate.
Additionally, the Elections Law prohibits corporations, businesses or labor unions from contributing to the funds or election expenses of a political party or independent candidate (Section 7.1)
According to the Constitution, “The Elections Commission shall have the power to examine into and order certified audits of the financial transactions of political parties and independent candidates and their organizations” (Article 82[c]).
The constitution also restricts political parties and organizations from holding funds or other assets outside Liberia. Additionally, parties or independent candidates are prohibited from retaining any funds or assets remitted or sent to them from outside Liberia unless dispatched or sent by Liberian citizens residing abroad (Article 82).
The maximum amount parties or candidates may spend on campaign expenses is established as follow (Elections Law, Section 7.3):
President – USD 2,000,000.00
Vice President – USD 1,000,000.00
Senator - US$600,000.00
Representative - US$400,000.00
The Elections Law (Section 7.10) and Campaign Finance Regulations (Section 8.3) mandate that all candidates who participate in an election submit a final report of contributions and expenses to the NEC. Candidates and parties who fail to submit a final report on costs and donations shall be fined between USD 1000 and USD 5000. Defeated candidates who fail to offer such a report shall be barred from participating in subsequent elections until the information on contributions and expenses is presented to the NEC.
Code of Conduct Law
There are several guidelines, regulations and codes of conduct governing the elections. For example, there are codes of conduct for political parties, media, NEC personnel, and observers (local and international).
The most controversial is the National Code of Conduct for all Public Officials and Employees of the Government of Liberia (Code of Conduct Law), which provides that “all officials appointed by the President, including all cabinet ministers.… Article 56(a) of the 1986 Constitution, … who desire to canvass or contest for an elective public office within the Government of Liberia shall resign his or her position one year before the date on which the election for the post for which he/she intends to contest.”
This law first came into force in 2014 and required executive branch officials interested in vying for public office to resign two years before the election. This provision aimed to provide a level playing field for all candidates vying for public offices. This provision was a source of controversy and many court challenges during the 2017 elections. Specifically, there was a significant challenge against the law's constitutional validity, and the Supreme Court ruled, in March 2017, that the law was constitutionally valid. However, it was impossible to fully enforce the law as the ruling came just seven months after the elections.
The latest amendment, passed in December 2022, reduced the gap year to one year before the election date. However, the amendment provides that the law shall come into effect one year from the date of inception (December 2022). The Code of Conduct Law is, thus, inapplicable to the 2023 elections.
Nonetheless, in March 2023, President Weah issued an Executive Order mandating all appointed officials of the government who intend to contest elective positions in the impending elections to resign on or before April 7, 2023. This Order was issued after numerous concerns of violations of the Code of Conduct by government officials and criticism from civil society activists that the late approval of the Code of Conduct Law was an attempt to undermine the principle of level-playing-field in the elections. Although many aspiring officials of his government complied, civil society groups have accused some of using official vehicles and offices for partisan purposes — a flagrant violation of the law.
Relevant opinions of the Supreme Court of Liberia
Major electoral disputes have reached the Supreme Court for final determination, and the rulings on those matters (specifically mandates to the NEC), form part of the legal framework for elections in the country. Two recent and very consequential opinions on the conduct of elections are discussed below:
1. Charles Walker Brumskine–Harrison Karnwea, Liberty Party, Joseph Boakai and Emmanuel Nuquay Versus National Elections Commission (December 7, 2017)
In the case filed before the court, the complainants above prayed the court to nullify the results of the first ballot in the 2017 elections on the grounds of alleged irregularities, such as the manipulation of the final registration roll (FRR) and the multiple voting at polling stations, including by individuals not registered at those stations. The Supreme Court ruled that the allegations were not sufficient to annul the elections entirely; however, it mandated the following:
The NEC should make available the FRR in published hard copies to all Election Magistrates and polling places nationwide by law before any election is held.
The NEC is prohibited from permitting anyone whose name is not found on the FRR to vote; and that any addendum to the FRR be limited to only those listed in the NEC’s Polling and Counting Manual (these usually include assigned security officers; NEC polling staff; and drivers of international observers).
That poll watchers who are not registered at their places of assignment and whose names are not on the FRR should not be allowed to vote.
2. Charles Walker Brumskine, Harrison S. Karnwea Presidential & Vice-Presidential Candidate, and All Representative Candidates of Liberty Party and the Liberty Party Versus the National Elections Commission (November 6, 2017)
In this opinion, the Supreme Court granted the petitioners’ request to prohibit the NEC from conducting a runoff until the complaint filed against the credibility of the outcome of the General and Presidential Elections of October 11, 2017, was entirely resolved.
This ruling made it a law in Liberia for all election disputes to be investigated and decided by the NEC, and if necessary, until the appeal process to the Supreme Court is exhausted.
Before this ruling, the NEC certified candidates whose election victories were still being legally disputed, and in 2011 it conducted a run-off election while a case concerning the results of the first round of the presidential election was still being heard by the Board of Commissioners.
Conclusion
Liberia has an extensive legal framework governing election. Liberia’s electoral laws seem to comply with principles set out in major international declarations and conventions on democracy, human, civil and political rights, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the ECOWAS Protocol on Democracy and Good Governance Supplementary to the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping, and Security, and the African Charter on Democracy, Elections and Governance. The challenge, however, has been in fully implementing the laws on elections to create a level playing field for all candidates. This challenge involves the required oversight and compliance of multiple ministries, agencies, and commissions, including the NEC, in ensuring the scrupulous implementation of the relevant laws relating to elections. It also involves the overall issues of state capacity and resources. The NEC, for instance, struggles to enforce most of these laws due to its lack of expertise and resources in some areas, such as monitoring campaign finances and regulating the activities and conduct of political parties and candidates. To address these challenges and ensure that every candidate and voter freely participate in fair and credible elections, the NEC and other relevant institutions, such as the courts and security agencies, will need adequate resources (human, financial and logistical) to address their current capacity challenges and enable them to conduct or support the electoral processes, for instance in managing logistics, hearing and adjudicating disputes, and providing impartial and non-partisan security for the electoral processes.
Finally, though the Constitution and the Elections Laws seem largely gender-blind, women struggle more to win electoral offices due to socio-cultural and economic systems that mainly favor men. To enhance the inclusion and participation of women in national leadership structures, Liberia may need to adopt affirmative action legislation and set aside resources to support programs that encourage and promote women candidates for all elected offices.
List of relevant laws and regulations governing the elections
National Code of Conduct for all Public Officials and Employees of the Government of Liberia
About Liberia Electoral Analysis Project (LEAP)
The LEAP is a project of the Ducor Institute for Social and Economic Research designed to collect information and provide regular analysis of the events, themes, trends, actors, and dynamics of the period before, during and after the 2023 elections in Liberia. The project also provides a platform for dialogue and debates among the electoral actors and the citizens. The project’s final output will be a report on the key themes that shaped the election and recommendations that stakeholders may consider in improving the processes and institutions for political participation and enhancing democracy in Liberia.
About Ducor Institute for Social Economic Research
The Ducor Institute for Social and Economic Research is a Liberia-based think tank established by Liberian researchers, policy practitioners, and activists to support policymakers, civil society, and community leaders to effectively tackle the causes of poverty and other socio-economic challenges by generating evidence for advocacy, dialogue, and decision-making.
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