Constitutional Reform and Boundary Harmonization as Best Practices for Decentralizing Liberia: Analytical Essay

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I. Introduction

The concept of decentralization has been widely considered as a tool for efficiency and effectiveness in the delivery of basic services (Kurmanov, 2018). It is a multifaceted phenomenon encompassing many geographic entities, (international, national, sub national, and local), societal actors (government, the private sector and civil society) and social sectors (all development themes – political, social, cultural and environmental). Additionally, it is a mixture of political, fiscal, and administrative functions and relationships that need to be considered in its designing process (UNDP, 1998). Many international organizations like World Bank (WB) have recommended that both developed and developing countries should adopt this form of governance (Devas, 2005). For the international donor community, decentralization is an instrument that is applied in order to push its global development agenda (Hyden, 2017; Devas, 2005).

The full application of decentralization is new in the political and administrative perimeters of Liberia. In Liberia, majority are of the notion that the backwardness of effective and efficient service delivery and the lack of inclusive development owed more to centralization, a form of governance inherited from the colonial master, American Colonial Society (ACS). To reverse this poor form of governance (centralization), decentralization has been alternatively looked to.

However, with the existence of the national policy on decentralization and local government, there still remain an argument on several issues. Notable amount these are constitutional reform and boundary harmonization (Nyei, 2014). With these issues unattended in the ongoing decentralization discourse, the feature of Liberia remains blurred.

Therefore, in an attempt to meaningfully contribute to the ongoing debate, the authors argued that constitutional reform and boundary harmonization are amount the best practices that should be adopted by a post conflict nation like Liberia. As they are very germane to the successful realization of the decentralization program in Liberia.

This paper is sectioned in to four: part one presents the introductory background and methodology, part two contains the discussion of constitutional reform, part three presents boundary harmonization, while part four presents the conclusion and recommendations.

Methodology

This study employed qualitative research approach particularly textual /document analysis to generate data. Textual analysis, which is also a form of secondary source of data collection, is important because “texts are source of evidence. They are valuable when you want to prove something, forward an argument regarding social structures, relations and processes or citing a basis to prove your point” (Kovala, 2002 as cited in Portus, Barrios, Conaco & Go, 2018 p. 121). Therefore, to prove or established that constitutional reform and boundary harmonization are best practices for the realization of the goal of decentralization in Liberia, this method (textual/document analysis) was appropriate.

Of the types of textual analysis (media criticism, rhetorical criticism and discourse analysis), the researchers employed discourse analysis which basically refers to “spoken or written language or communication” (Fairclough, 1995, p. 54 cited in Portus, Barrios, Conaco & Go, 2018 p. 123). In discourse analysis, the writer thinks on what can or cannot be discussed about the topic. Therefore, based on the objective (to present best practices for the successful realization of the goal of decentralization program in Liberia) of this paper, the authors selected and analyzed the contents of some scholarly documents (articles, and books ) on decentralization program, constitutional reform, and boundary harmonization particularly the scholarly work of Nyei, Knight, Siakor, & Kaba, as well as online documents from the department of Urban Affairs, Ministry of Internal Affairs to support their argument.

II. Constitutional Reform

Like many countries in Europe, Asia and Africa, Liberia, a post-war country is on the path to experience change in her emerging democracy by looking up to decentralization. To have this dream realized, there should be a provision in the constitution. As such, the exercise of constitutional reform has become an issue in the ongoing decentralization discourse not only in in Liberia, but in other parts of the world. For instance, (Fombad,2011) noted that for the past four decades, Africa has faced dictatorial, corrupt and incompetent rule, but starting from the 1990s, many African countries began to slowly and painfully move towards a new era of democratic and constitutionalism. One of the main reasons for this great move has been reforms designed to introduce constitutions that promote good governance.

The practice of constitutional reform is a must, if the existing constitution does not accommodate the kind of governance reform that is proposed. In Liberia, the desire for effective and efficient delivery of basic services and the need for practical and equal participation not only in the formulation and implementation of public policies, but in the equitable distribution of the wealth of the nation has necessitated the call for constitutional reform. In support of the above argument, (Fombad, 2015) argued that for countries in Africa to be successful in reducing disease, hunger and poverty, and to be economically sustainable and socially stable, certain changes or improvement must be made in their current constitutions.

True to Fombad’s argument, the current constitution of Liberia is not strong enough to create the conducive environment for the reduction of diseases, hunger and poverty, and to be economically sustainable and socially stable, because the power needed to decide on what and how to get what they(Liberians) want for their own development is highly centralized.

Constitutions are considered as documents that lay down the foundation of the relationship between the state and individual citizen as well as the structure and function of government. Therefore, each citizen should be able to understand his or her relationship with the government. He or she must know what to expect from the government and what can also be expected from him/her. This is one of the purposes for constitutional reform (Dakolias, 2006).

Constitutional reform is an all-inclusive process. This process requires the reconstruction of the constitution and the laws it governs through consultation and negation with the general public. Further, constitutional reform is also considered as a very significant instrument for the stimulation of good governance through the change of rules for the encouragement of more accountability, participation, transparency, and predictability (Dressel ,2005).

Now with the realization of the failure of past constitutions to meet up with current day realities, the concepts of constitutional reform have not only been fully welcomed and embraced but have been translated into practical realities in our contemporary democracy. For instance, scholar Bjorn Dressel clearly mentioned in his scholarly article titled Strengthening Governance Through Constitutional Reform” some of the countries that have gone through constitutional reform as well as the number of constitutions adopted. The table below show the number of constitutions adopted from 1990-2004 by some continents.

Constitutions Adopted by Region, 1990-2004

Asia 38
Asia Development Bank (ADB Member countries) 20
Africa 54
Europe 17
Americas 13
Total 122

(Dressel ,2005).

Linking constitutional reform to decentralization, it is important to note that in the United Kingdom, what is consider as the most sustained program of constitutional reform is devolution of administration (Dakolias, 2006). Like UK, many countries have considered devolution of administration to be equally important for the sustainability of their constitutional reform programs. That been said, a study also revealed that eight countries (Ghana, Kenya, Malawi, Zimbabwe, Bolivia, Indonesia, Iraq and South Africa) have equally gone through a constitutional reform. The study further established that all of them share a number of generic characteristic and challenges in a specific way. However, all of them exacted efforts at awareness-raising, consensus-building, adoption and implementation (Vliet, Wahiu, & Magolowondo,2011).

Additionally, the study pointed out four principal phases with their characteristics upon which constitutional reform is implemented. For instance, the preparations phase. This first stage (preparation phase) requires that there should be goal setting, principles, roadmap, timeline, budget, institutions, commitment, issues and analysis. The second phase has to do with awareness and consultations. Included in this second phase are: information, education, participation, monitoring and compiling. The third phase is characterized by reform and deliberation. With this, the key characteristics include: inclusivity, decision making, transparency, autonomy, coherence, feedback and monitoring. Finally, the fourth principal phase of constitutional reform is adaptation and implementation. This phase includes modifications, popularization, education, referendum, subsidiary law and monitoring (Vliet, Wahiu, & Magolowondo, 2011).

Aside from the four principles stages upon which constitutional reform is conducted, it is worth noting some of the interesting questions that are asked when a country decides to go through constitutional reform. These questions are more concern about the process through which the reforms are conducted. The following questions according to (Dressel,2005) are: should the existing constitution be amended or entirely rewriting? Who will do the draft? By what means will they be selected? How much public participation is appropriate? Who will decide whether to accept the final draft?

The answers to these questions are intended to put the process of constitutional reform on the right footing for the successful attainment of the goal of the reform. Hence every country that is thinking of reforming their constitution must seriously take note and find a comprehensive answer to these questions.

Considering Ghana and Kenya out of the eight cases in this study, Ghana presented the following lesson from the constitutional reform process: a productive inter-party dialogue before and after the reform process; a well-defined democratic principle that guide the reforms in advance; legal framework that enable executive manipulation; civic education and popular consultations, political context and popular involvement (Vliet, Wahiu, &. Magolowondo,2012).

In the case of Kenya, there were inter-party negotiation and consensus building on problematic issues; sound decision making mechanisms that enable the adoption of progressive reforms; maintaining the impact of partisan interests throughout the process; non-governmental organizations positively lobbying and scrutinizing the process and the monitoring of the implementation of the new constitution by an independent body (Vliet, Wahiu, &. Magolowondo, 2012).

Similarly, Liberia has embarked on such a constitutional reform with the hope to successfully be a decentralized nation. The constitution of Liberia has been problematic since independent. It is recorded that since independent, Liberia has gone through constitutional suspension in 1980 and in 2003-2005. In 1980, it was the 1847 constitution that was suspended. In 1984, a commission was set up to draft a new constitution. This brought in the 1986 constitution (Guanue,2010), but it lacks the foundation of true participatory and representative democracy. This 1986 constitution was also suspended after the civil was in 2003-2005. It was a transitional period, a period of factionalized government of inclusion. This connotes that the there is a problem with the 1986 constitution. In support of this argument, (Nyei, 2013) noted that what Liberian have not learned is that the suspension of constitution clearly shows how problematic is that constitution. He further stated that the solution to the governance and developmental challenges of Liberia lies in the provision of a new constitution that sets and sustains a foundation for democratic governance and provide for a balance distribution of power.

After the civil war, a constitutional review committee was appointed by the former president, Ellen Johnson Sirleaf to review the 1986 constitution and draft proposition for amendment. This set the foundation for 2011 referendum. A referendum that protected only the interests of few government officials. For instance, simple majority election for members of the legislature, retirement age for Chief Justice, adjustment in the times for presidential and general election (Nyei, 2013).

Additionally, the desire for constitutional reform in Liberia has been influenced by several factors: no provision for the distribution of power (election of superintendents, district commissioners, city mayors) among local authorities (Local Government Act,2018) which could eventually reduce the power of the president, no provision for strong institutional building, reduction in the tenure of elected officials, emerging issues such as dual citizenship, granting citizenship to non negro, decentralization, property rights, national identity, national symbols, the application of customary justice and women’s representation and political participation (Nyei, 2013, 2014; 2015).

Unfortunately, the hope for smooth and peaceful transition to decentralization have been threatening by the lack of popular consensus among Liberia. Scholar Ibrahim al-bakri Nyei, a promising writer on decentralization and local government in Liberia placed emphasis on the legitimacy of the constitutional review process. He further cited that the outcome of the constitutional review process was not based on popular consensus, as such, the nation stands at risk of facing constitutional crises (Nyei, 2015).

III Boundary Harmonization

Boundary harmonization is a sensitive issue in the decentralization discourse especially for country that is transitioning from a centralized to a decentralize form of governance. Disputes emanating as a result of land demarcation require serious harmonization for the successful realization of the goal of decentralization. The concepts of decentralization from the perspectives of the rural dwellers also need to be considered. Looking at decentralization and boundary setting in Mali, particularly in the district of Kita, the concept of the rural people on decentralization is division of the country into various municipalities. With this word “division” many have developed the concept that decentralization is equated to boundary setting (Idelman, 2009).

However, linking decentralization to democracy at the local level and to land tenure, scholar Soumare observed that “if democracy and decentralization are magic options, they should be applied to land tenure” (Soumare 1998 as cited in Idelman, 2009 P 19). With this noted, and considering the fact that land tenure is highly problematic in Mali, and that boundary setting is conflict provoking between communities, the people of Mali initially set aside their ambitions for territorial demarcation and focused on establishing municipalities or functioning local governments across the entire country in less than a decade (Idelman, 2009).

In the case of Liberia, boundary harmonization is a critical issue (Nyei, 2014) that needs to be handled with care, as it is an antidote to land dispute. In Liberia, there have been several cases of boundary disputes both inter-county (between two or more counties), and intra-county conflict (boundary conflict with in counties-between certain localities) (Knight, Siakor & Kaba, 2013). These boundary disputes are the result of creating counties or districts to satisfied the desires of the so called political leaders without involving technocrat to properly to handle the issue of county or district demarcation.

To have these cases resolved, the department of Urban Affairs, a technical arm of the Ministry of Internal Affairs (MIA) which was legislated in 1972, reactivated the Special Joint Stakeholders Consultative Committee (SJSCC) in 2012 to interfere in the harmonization of conflict areas in Liberia. Eleven (11) hot zones were identified to be land boundary conflict areas after four Round- Table Discussion (RTD) by the SJSCC. Additionally, the Department of Urban Affairs (DUA) went into a Memorandum of Understanding (MOU) with the Carter Center on boundary harmonization program implementation. Further, the DUA hosted a chief’s forum captioned: what is meant by governance decentralization and what is expected of the chief and traditional elders of the country? Resolution one hundred sixty-five (165) was developed by over one hundred and fifty (150) traditional leaders, elders, senior mothers, and governors as a result of the forum. A committee comprising of fifteen (15) chiefs was also established to buttress efforts in settling boundary problems across the country (www.mia.gov.lr).

In an effort to ensure that there is a successful boundary harmonization and how to secure community land rights, a two years’ study was conducted. The finding showed that: boundary harmonization efforts are conflict resolution exercises and should be treated with care, Map-making is not a middle-of-the-road process. Because it disclosures all bad faith appropriation of community lands and detects all natural resources and their locations. Hence, it has the potential to initiate intra-community conflict, that acquiring of community land documentation created a strong motivation for communities to amicably resolve long-running boundary conflicts, communities that were ready to resolve their boundary conflicts advanced more rapidly through the land documentation process, that harmonizing boundaries resolved lots of conflicts than it created, and aided communities to embrace new conflict resolution strategies, that the documentation of every boundary agreement should not only be tree planting but with the signing of Memorandum of Understanding (MOU), that some communities land certification process created conflicts of power, authority, and jurisdiction, Some communities hurriedly agreed to their boundaries in order to successfully complete the project within the given time period which is not necessary in conflict resolution, Once community land documentation processes is initiated, it should be successfully completed, and there should be a need for state support for enforcement of agreed boundaries over time (Knight, Siakor & Kaba, 2013).

In view of the above, it is clear that Liberia has gone a long way with boundary harmonization process which is a good footing for the decentralization process.

IV. Conclusion

Decentralization should not be regarded as the only panacea to Liberia’s problems, because every form of governance has its own pitfalls. But considering our conditions and the kind of unguarded political and bureaucratic insults that are emanating from the centralized system which the grass rooters or the locals continue to receive, it is important to consider decentralization as the best option for Liberia at this moment. By the same token, constitutional reform and boundary harmonization are not the only best practices, but they are very cardinal to the realization of the goal of decentralization in Liberia and should not be given left handed approach (overlook).

Recommendation

In view of the above mentioned, and considering the fact that decentralization is at the initial stage (de-concentration stage) and on a gradual footing, the researchers deem it necessary to advance the following recommendations for the successful realization of its(decentralization) goals in Liberia:

That constitutional reform should satisfy all of the prescribed processes mentioned above, and should meet the consensual of all Liberians.
That boundary setting or harmonization should not be done hurriedly all in the name of completing the process to acquire land documents.

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Constitutional Reform and Boundary Harmonization as Best Practices for Decentralizing Liberia: Analytical Essay

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