Commentary by Tiawan Saye Gongloe
Liberia is facing an important constitutional and moral question as the Legislature considers the War and Economic Crimes Court Bill: Are we committed to constitutionalism, or are we practicing constitutionalism only when it is politically convenient?
I ask this question because some members of the Legislature have raised Articles 65 and 66 of the Constitution as reasons for opposing or questioning the establishment of a War and Economic Crimes Court, particularly because the proposed court may have an appellate structure that does not place the Supreme Court of Liberia as its final arbiter.
I agree that the Constitution must be respected. The Supreme Court is the highest court of Liberia, and its constitutional authority cannot be ignored.
But if constitutional provisions must be strictly followed, then all constitutional provisions must receive the same respect.
This brings me to Article 48.
Article 48 provides that members of the House of Representatives shall be elected by registered voters in the legislative constituencies of the counties. Yet Liberia has conducted recent legislative elections using electoral districts that emerged from the extraordinary circumstances of our civil war and the massive displacement of our population.
There may have been compelling reasons for that arrangement during the war and its immediate aftermath. But Liberia is no longer at war. If lawmakers now insist upon strict adherence to Articles 65 and 66, they should also explain why Article 48 should be treated differently.
Why should the Constitution be strict when it concerns the authority of the Supreme Court but flexible when it concerns the manner in which legislators themselves are elected?
That is the problem of selective constitutionalism.
The issue is not that current legislators personally created the electoral system. They did not. The issue is whether an exceptional arrangement created by extraordinary circumstances should continue indefinitely when the Constitution provides a different framework.
If constitutional fidelity is the principle, let us apply it consistently.
Transitional Justice Is Not Impossible
I am also not persuaded by the argument that the constitutional supremacy of the Supreme Court makes a War and Economic Crimes Court impossible.
Sierra Leone’s Constitution recognizes its Supreme Court as the country’s highest court. Yet, after its devastating civil war, Sierra Leone established the Special Court for Sierra Leone with the United Nations to prosecute persons bearing the greatest responsibility for serious violations committed during the conflict.
The existence of a constitutionally supreme Supreme Court did not prevent Sierra Leone from pursuing transitional justice.
Rwanda provides another important example. Its Supreme Court is the highest judicial authority in the country. Yet following the 1994 genocide, Rwanda established extraordinary transitional-justice mechanisms, including the Gacaca courts, while the International Criminal Tribunal for Rwanda was established to prosecute persons responsible for genocide and other serious violations.
The lesson is not that Liberia should copy Sierra Leone or Rwanda.
The lesson is that a constitutionally supreme Supreme Court does not automatically make transitional justice constitutionally impossible.
The proper question is not whether Liberia should have transitional justice. The question is how to structure transitional justice consistently with our Constitution and international obligations.
If there is a constitutional difficulty with the proposed bill, let the Legislature identify it precisely and find a lawful solution. If an amendment is necessary, begin the constitutional amendment process.
But do not use Articles 65 and 66 as a reason to postpone justice indefinitely.
Liberia Has International Obligations
There is another important legal principle that cannot be ignored.
Article 27 of the Vienna Convention on the Law of Treaties provides that a state may not invoke its internal law as justification for failing to perform its treaty obligations.
Liberia is a party to the Vienna Convention.
The principle is simple: a state cannot voluntarily undertake international obligations and later invoke its domestic law as an excuse for failing to honor them.
Liberia is also a state party to the four Geneva Conventions of 1949, which constitute the foundation of international humanitarian law governing armed conflicts.
I am not suggesting that the Geneva Conventions prescribe the precise institutional structure Liberia must adopt for a War and Economic Crimes Court. They do not.
My point is that Liberia’s international obligations arising from armed conflict cannot simply be dismissed because domestic institutions present difficulties.
Our constitutional order and international obligations should be harmonized.
We must find a constitutional way to fulfill our international responsibilities—not use constitutional difficulties as an excuse to escape them.
Apply the Constitution to Everyone
This is why I believe the Legislature must apply one constitutional standard.
If Articles 65 and 66 must be strictly obeyed, then Article 48 must also be strictly obeyed.
Let us examine whether the present electoral arrangement for the House of Representatives conforms to Article 48.
Let us ask whether legislative constituencies should now be properly demarcated before the 2029 elections.
Let us bring our electoral system into conformity with the Constitution.
At the same time, let us establish a War and Economic Crimes Court that is constitutionally sound, independent, credible, fair, and capable of delivering justice to the victims of Liberia’s wars.
We cannot demand constitutional purity when it affects another institution and constitutional flexibility when it affects ourselves.
That is not constitutionalism.
That is constitutionalism by convenience.
Liberia Has Waited Long Enough
The victims of Liberia’s civil wars have waited for decades.
They have watched governments change. They have watched politicians make promises. They have watched commissions investigate. They have watched reports gather dust.
What they have not seen is comprehensive accountability.
The passage of a War and Economic Crimes Court law will not erase Liberia’s painful history. It will, however, demonstrate that Liberia has finally decided that political power cannot permanently protect those responsible for the gravest crimes committed against the Liberian people.
The Legislature therefore has a historic responsibility.
If the proposed legislation contains constitutional defects, correct them.
If its institutional structure must be adjusted, adjust it.
But do not hide behind constitutional supremacy to avoid transitional justice.
And if constitutional supremacy is the standard, apply it equally to Article 48 and ensure that Liberia’s electoral system conforms to the Constitution before the 2029 elections.
Liberia needs constitutionalism without selectivity, justice without political exemption, and accountability without regard to who may ultimately be affected.
The Constitution must govern everyone—including those who make the laws.
Constitutional supremacy must never become a shield against accountability.
The time has come for the Legislature to choose between constitutional fidelity and constitutional convenience.
Pass the War and Economic Crimes Court Bill. Fulfill Liberia’s international obligations. And ensure that our electoral system also conforms to Article 48 before 2029.
The Constitution must govern the government—not merely the government’s opponents.
