Treason Of The Intellectuals : A Comparative Analysis Of Two Constitutions
By: G.Yanquoi Lavela, Esq.
Doctor of Jurisprudence
Why has Liberia never elected a Ph.D holder for president, in spite of a few who have tried and miserably failed to win the confidence of the people? In a nation nearly 200 years old as Africa’s oldest independent republic, but in which the literacy rate is abysmally lower than most other African nations of nascent republics, the answer to this phenomenon of a general public distrust in the educated or “book people” of Liberia may lie in the title of this commentary and the historical precedents referenced below. But before that, let me first preface my commentary by a disclaimer that this is not about the moral failure of one individual, but a collective and a distinct segment of the Liberian population that I refer to as “intellectuals”. In that sense I want to avoid the appearance of ad hominem attacks on any one individual personality and to focus mainly on institutional failures attributable to the failure of the intellectual collective in the aggregate.
In 1927 a literary firestorm took the French intelligentsia by a complete surprise and sent a shock wave throughout Europe, when Julien Benda, a philosopher, essayist, and social commentator, wrote a controversial essay entitled: “La Trahison des Clercs” (The Treason Of The Intellectuals). It was a scathing indictment against intellectuals, in which he charged that the French intelligentsia and, indeed, the entire European intellectual community as whole had betrayed the classical Greek and Roman philosophical tradition of using reason and knowledge as a tool for shedding light on truth and exposing the evils of society. The gravamen of his essay implied that many of the prominent intellectual figures of France and Europe were complacent in a conspiracy of silence and, at worst, had become willing apologists of totalitarian regimes of Europe, like that of the notorious fascist dictator of Italy, Benito Mussolini, who ruled that country with an iron fist from 1925 to 1945. This essay also came on the heels of the scandalous “Dreyfus Affair” (L'affaire Dreyfus), which was a breathtaking miscarriage of justice in France. The “Dreyfus Affair” was a scandal that riddled French society in 1894, when a young French military officer of Jewish descent named Alfred Dreyfus, was convicted of treason for allegedly revealing French military secrets to the Germans and was imprisoned for a term of five years. It would later come to light through the persistent efforts of a determined investigative journalist named, Emile Zola, that the young officer Dreyfus had been framed, and that the alleged offense with which he was charged had actually been committed by a higher ranking military officer in the French army. Emile Zola put pen to paper and in January of 1898 he wrote an equally sensational and blistering “open letter” to the French president, that was widely carried by the French press entitled: “J'Accuse” (I Acuse). In that letter he publicly accused the incumbent French president and his government of antisemitism for the wrongful conviction and imprisonment of a Jewish military officer based on falsified state evidence against him. And for that, Emile Zola was driven into exile from France. Julien Benda, himself of Jewish descent, had written copiously about the affair and his widely read satirical essays about the infamous event were collected in a compendium he called “Dialogues”. All of these events, and even more, were taking place in the presence and deafening silence of many prominent and influential French and European intellectuals. And, as I reflect on these events of history in Europe and France in particular, I have often wondered whether the same can said about the so-called educated or “book people” of Liberia, and whether our country has been well, or poorly, served by its intelligentsia. The answer, my friends and fellow compatriots, depends upon whom you ask. And, with any luck, there might be as many divergent points of views as there are tribal or ethnic groups in Liberia.
On April 12, 1980, a cataclysmic event changed the political history of our nation forever. It followed more than 150 years of sharp ethnic division in Liberia, when people were described often in the pejorative by their ethnic identities, rather than by their talents and abilities, or the contents of their character. For this reason and because of the glaring disparities in equal access to opportunities created by that rigid state-sponsored social stratification system, those events were celebrated with glee in some quarters for their short-lived and transient benefit of instant gratification. That moment was generally seen by many as a necessary turning point in our nation’s history. But once the dust had settled and the tidal wave of emotional excitement faded into the far distance of time, the real task of nation building had to begin. The participants in the events of April 12th quickly realized that they were ill-equipped to manage the affairs of the nation and were merely figureheads in the governance of our country. They were, thus, compelled by necessity to recruit Liberians they trusted as intellectual “think-tanks” to occupy key ministries of government and to guide the nation in formulating public policies, both foreign and domestic, and to create a system of broad-based and inclusive democracy. To that end, all Liberians of goodwill living at home or abroad were invited to come home and help to build our nation. Many came but few were chosen based largely on social and political connections. That, to me, was the first red flag, considering a government that came to power riding on the slogan of ridding the nation of “rampant corruption.” Some even resorted to open bribery to secure their appointments in key positions in government.
But what Liberians discovered to their dismay was that these intellectuals would cowardly surrender the power of the pen to the barrel of the guns. Some even shamelessly took on the reptilian mimicry of a chameleon by wearing the military uniforms of the regime and accepting military titles as officers to impress and to further intimidate the public. But not a single one of them ever opposed, on the record as a matter of principle, any policy of the regime that they disagreed with that was beneath their honor or personal integrity. They stood silent and watched the gruesome public execution of an entire cabinet of the previous government without even raising a finger of objection. Their silence as pusillanimous sycophants, while fellow citizens were murdered without due process of law, made them willing accomplices to those murders as accessories before and after the fact. Today there is a deafening conspiracy of silence amongst us as Liberians, even at times when civil and public discussions of our grievances against one another could possibly save our nation from sliding down the slippery slope of another civil war. When he spoke against the war in Vietnam, Dr. Martin Luther King, Jr. said that he was compelled to speak out against an unjust war because “silence is a form of betrayal”, if men and women of good will remained silent in the face of evil. The Irish statesman, economist and political philosopher, Sir Edmund Burke (1729– 1797), once said that:“The only thing necessary for the triumph of evil is for good men to do nothing. All tyranny needs to gain a foothold is for people of good conscience to remain silent.” And the ever plainspoken Justice Oliver Wendell Holmes, Jr., whose judicial opinions were often laced with Mark Twain-like entertaining folksy quips, put it even more plainly, when he once said that: “For a man not to partake in the actions and passions of his time is for him to be at peril of being judged by history not to have lived.”
Contrast that muted voice of our Liberian intellectuals with the French revolution, when dispassionate French enlightenment thinkers and philosophers, like Jean-Jacques Rousseau (1712-1778) , Voltaire (1694-1778), Baron de Montesquieu (1689-1755), and other lesser known political philosophers, who used the power of their pens to shape the transition of French society from absolute monarchy to a republic with guaranteed constitutional protection of the rights of man. And further compare our Liberian examples with the spirited debates among American intellectuals preceding the ratification of the United States constitution, consisting largely of an anonymous series of essays by John Jay, Alexander Hamilton and James Madison, generally referred to as “The Federalist Papers” that critically examined, dissected and analyzed each and every line in the proposed U.S. constitution for the benefit of the public, before it was formally ratified and adopted in 1789. Those 87 essays still stand today as a living testament of the power of the pen and a towering monument to courage and intestinal fortitude against great odds. An old proverb says that men are like rivers; they wind up crooked when they follow the least line of resistance. Many of our Liberian intellectuals became like rivers when they remained silent and went along with things they knew to be clearly wrong for our country. Many of them practiced what I consider “PRAP” (or Personal Risk Avoidance Policy). The rationale some have given for failure to exhibit profiles in courage at such a critical moment in our nation’s history is that they could not speak up against evils because they feared for their lives. My reply to that argument is that an ordinary iron does not become a steel unless it goes through the test of fire. If a man is afraid of dying for a worthy cause, he is condemned to die for nothing. Shakespeare reminds us in “Julius Caesar”, Act II, Scene II, that : “Cowards die many times before their deaths; The valiant never taste of death but once. Of all the wonders that I yet have heard. It seems to me most strange that men should fear; Seeing that death, a necessary end, Will come when it will come." Death is the inevitable price that we must pay for the privilege to live. The short span of time between our mothers’ wombs to our tombs presents humanity with the most challenging moral question we all must face individually. And that is to ask: “What is the purpose of my creation and existence in life?” And if we must die no matter what we do to avoid death, why not choose to die for what we believe to be right and just by the dictates of our conscience? Even if Liberians, who by their very kind nature are forgiving people, and will forgive the moral failures of the intellectuals at a critical juncture in our nation’s history, the most enduring legacy of those intellectuals is their deeply flawed constitution that we must live with to govern our lives forever. Some have even recently admitted in the print media that certain provisions were put into the 1986 constitution to avoid disqualifying the head of state from running for the presidency. Monstrous!!! Off with him.
Inquisitive minds might ask, what is a constitution ? And what does it mean to have a constitution in the general sense of the word? To put it simply, a constitution is a brief statement or summary of the fundamental and core values of a people who join together to form a body politic, codified in a sacred and enduring document, by which they intend to be governed as a matter of first principles, and which acts as a limiting principle to all legislative enactments and social conduct for the proper existence and efficient operation of that body politic. Because a constitution is a statement of limiting principles, or a road-map of where a nation intends to go, aspirationally speaking, it is meant to be brief and concise, and not cumbersome to read and comprehend. It must be in plain and simple language that every citizen can read and understand. It is what political philosophers like John Locke (1632–1704) and Jean-Jacques Rousseau referred to as the “Social Contract.” As such, and unless necessity so requires by any amendment, it is not to be disturbed. And even when those limited circumstances do require it, a constitution can only be amended in the manner and style prescribed by the constitution itself. By this fluid and flexible definition of what a constitution should be, within the limits of my understanding of the philosophy of law and jurisprudence, African political scholars should be able to craft constitutions that embody African values and cultures. After all, the word “constitution” is a vacuous and content-neutral term that carries only the meaning you put into it. As such, African nations should not be bound by western models or paradigms. Our 1986 constitution does not even recognize any of the 48 African languages in Liberia as “official” to co-exist with the borrowed English language, like they have done in South Africa and other African nations. If the Chinese have endured over six millennia of a continuing cultural civilization, despite western onslaught of criticisms and shaming of their way of life, Africa which has a far longer history of cultural existence can do the same. We can never win the game of political independence, if the rules by which we play are constantly being changed by our western benefactors, former colonizers and slave masters, who have their boots on our necks as hostages for our total dependence on their paltry foreign aids.
Keeping that in mind in this analysis, let us look at the two constitutions that Liberia has had in the last 174 years since 1847. To the careful student of constitutional law, the Liberian Constitution of 1847, minus a few repugnant provisions, was comparatively and qualitatively better than the one that replaced it in 1986. The most egregious flaw in the 1847 constitution is Article 5 of the “Miscellaneous Provisions”, paragraph 14, (which divests native inhabitants of Liberia of the rights to transfer titles to lands they owned and occupied before the republic was formed); and paragraph 15 (which limits their political aspirations to agrarian lifestyles and agriculture under the “Aborigines Laws”). If I had my druthers, I would say that Liberia did not need a new constitution if such obnoxious provisions could simply be eliminated by a constitutional amendment. That would have saved Liberian taxpayers the one million dollars it cost the nation to write a new constitution. I was, therefore, surprised when a caller to ELBC talk show in 1986 asked the Chairman of the Constitution Commission: “Why do we need a new constitution?” The Chairman’s reply was a dismissive simpleton: “We we were given a mandate to write a new constitution”, he replied. I started to wonder, what if a patient walks into a doctor’s office and says: “Doc, I have a headache. But I think my liver is the cause of my headache. Please perform a liver transplant on me.” Should the doctor examine the patient and make an independent professional judgment about whether the patient needs a liver transplant? Or must the doctor simply comply with the patient’s demand to remove the liver, even if he believes the liver is not the cause of the headache? That is classic example of the intellectual’s surrender of the power of the pen to the barrel of the gun.
In the comparative analysis of the two constitutions, let us first look at the authorship of the constitutions of 1847 and 1986, respectively. The Liberian constitution of 1847 was written by the esteemed Harvard Law Professor Simon Greenleaf (1877-1853). Professor Greenleaf was a renowned and distinguished legal scholar and a prolific author of many literary works on the subject matter of the law. His 3-volume treatises on “The Law Of Evidence” still stand today as a landmark reference work of great legal scholarship in all law schools in the United States. He stands shoulder to shoulder with the former and late Supreme Court Justice Joseph Story, James Kent, and other Anglo-American legal scholars, whose writings on the law have become standard reference work in American law schools. Before the Greenleaf constitution that was adopted in 1847, the “Colony of Liberia”, as it was then called, had had several previous constitutions for the governance of the settlements. For example, there was the “Constitution of 1820” when Jehudi Ashmun was the white Governor of the Colony under the American Colonization (ACS). That was followed by the “1839 Constitution” under another white Governor James Buchanan, before the constitution of Simon Greenleaf was formally adopted in 1847 following the declaration of independence. Professor Greenleaf deliberately modeled the Liberian constitution after that of the United States in order to enshrine in the constitution of the new Negro republic the great principles and values that made the United States an enduring democracy, based on the principles of free speech and press freedoms and the protection of individual liberties under the rule of law. He wanted Liberia to be a beacon of hope and a shining example for emerging African nations rising out of the smoldering ashes of the fires of violent political revolutions against the iron-tight grips of colonialism. His 1847 constitution was short and easy to read and only had 5,860 words on 8 pages, similar to its U.S. counterpart with only 4,543 words. By contrast, the Liberian constitution of 1986 was more like a tedious Napoleonic Civil Code (Code Napoléon, 1804) containing 12,500 words on 40 pages. And that became the final version only after the late Dr. Edward Biyan Kisseley of the Constitutional Advisory Committee trimmed off the excessive verbiage that the original text had contained. In terms of costs, the Greenleaf constitution of 1847 cost the nation nothing. The 1986 constitution cost Liberian taxpayers over one million dollars. The 1847 constitution had shorter term limits for members of the House of representatives (2 years), Senate (4 years), and the Executive and Vice president (4 years). That was an increase on presidential term of office from 2 years, when in 1871 President Edward James Roye attempted to increase his term to 4 years by a resolution of the legislature, which led to his removal from office by force. He died under mysterious circumstances while fleeing from the mob. He was a Negro of quite a pronounced color, which raised many questions about whether his overthrow by the mulatto community of Monrovia, led by former President Joseph Jenkins Roberts, was racially motivated. President Tubman managed to finagle that term increase by legislative fiat and constitutional amendment allowing an 8-year first term for presidents and 4 additional years for each subsequent election in perpetuity, as long as voters allowed him. And it kept him in office for 27 years (1944-1971), after succeeding himself every 4 years without opposition. The 1847 constitution only required “two thousand and five hundred dollars” ($2,500) in real estate ownership value to be eligible for president, while the 1986 constitution now requires ten times as much, or twenty-five thousand dollars ($25,000). That means under the new 1986 constitution in Liberia today, a country of less than $1500 per capital income, only a tiny minority could qualify to run for president. The majority are constitutionally excluded from running for the highest office in the land because of economic disparity. Even “Honest Abe” (Abraham Lincoln), who was born in a log cabin and became the greatest president of the United States, could not qualify for president of Liberia under the present constitution because he was too poor. These are called “grandfather clauses” designed to exclude a certain segment of the population from political participation. They were often used by racist whites in the southern states of the United States to exclude freed slaves from voting or running for public office. They knew that the newly freed slaves often had no property and could not read or write. And so, when the right to vote was based on proof that your grandfather owned property or could read and write, that automatically excluded the freed blacks who had no history of property ownership and were banned from schools by reason of race. Furthermore, under the old constitution, land ownership followed the common law rule, which meant you owned everything under your land down to the center of the earth, and up to the ceiling of the skies. But under the 1986 constitution, you only have “surface rights” to your land and any precious minerals you discover under your land, like diamonds and gold, etc. belong to the government and any attempts to mine such precious minerals on your own land could expose you to both civil and criminal liability for theft of government property. Article 22, says: “Private property rights, however, shall not extend to any mineral resources on or beneath any land…. “ There is a legal maxim in property law that says he who owns land has rights that extend down to the center of the earth and up to the ceiling of the skies. It is called the ad coelum doctrine and goes as far back in English Common law as the times of William Blackstone, whose 4-volume Commentaries On The Common Law gives a lengthy history of this principle as a well settled doctrine of law in English speaking nations. Even the United States Supreme Court upheld this doctrine in the landmark case of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), which was a majority decision of 8 Justices against 1 dissent (Louis Brandeis), written by Justices Holmes, and held that a state regulatory law depriving a landowner of the right to mine coal under his land was an unconstitutional taking of private property without due process of law. So where did the authors of the 1986 constitution of Liberia get the idea that a landowner has no rights to minerals under his or her land? That sounds socialist and anti-capitalist, if you asked me. In sum and substance, we had more rights under the old constitution of 1847 than we have now under the new one of 1986.
If the 1847 constitution gave too much power to the executive, the 1986 constitution was even worse. It is understandable that the colonists had a highly centralized government because they shared a common language and cultural identity and their population was much smaller than what we have today. One would have thought that the constitution of 1986 would have taken into account the diverse Liberian population of today and the 48 different ethnic groups, by adopting a federal system of governance, like Nigeria and South Africa, not to mention the example of the federal system of the United States. The advantage of a federal system of governance in a culturally diverse population is that it allows for decentralization of political power that enables local governments to manage their own affairs. But the opposite is true of the 1986 constitution because all political power is vested in the executive branch, including the appointment of county superintendents and city mayors, in addition to cabinet appointments within the executive branch of government. Senators are elected for 9 years and presidents for 6 years subject to a time limitation of two consecutive terms for presidents. This was not by any accident. Many of the people who participated in the creation of the 1986 constitution had political ambitions of their own, and quickly formed their own political parties after the return to civilian rule. This is called “political feather-bedding” because they expected to take part in politics and wanted to last in office for as long as they could by these long terms of office enshrined in the constitution. They were mostly people with graduate and post-graduate degrees in the social sciences, who had a vested interest in wanting to make a name for themselves. On the other hand, the author of the 1847 constitution was never interested in holding any political office in Liberia. His work was done pro bono publico, for Liberia.
The totality of all of the above has made ordinary Liberians very skittish and not surprisingly suspicious about whether the “book people” have ever had their best interests at heart, or whether they are merely being used as pawns for selfish gains by the Liberian intelligentsia. The Liberian people are not known for great formal education. But they are not fools. They are endowed with plenty of common sense. And, usually, they are more right than the “experts”, when they predict which way the nation’s political winds are blowing. And more often than not, their instincts are more accurate at predicting political events than the official public media. But trying to read the minds of Liberians is like trying to decipher the dark secrets of the Old Mississippi River celebrated in the Negro spiritual “Old Man River”. Slaves and bales of cotton were sold up and down the Mississippi River in the antebellum south of the United States at the height of what the much celebrated American historian of slavery and prominent academic, Kenneth Milton Stampp (1912 –2009), called in his famous 1956 book by the same title: “The Peculiar Institution: Slavery in the Ante-Bellum South”. Many atrocities toke place on that river. But as the Negro spiritual tells us, “Ol' man river, that ol' man river. He must know somethin'. But don't say nothin. He just keeps rollin', and rollin' along.” Liberians are like the Old Man River: “They must know somethin' ; But they don't say nothin'”; They just keep rollin' along.” What they don’t say by word of mouth they usually say with their typical Cheshire grins, or their pregnant sighs of “aaaah”, meaning: “I know more than I can tell.” This is why the Liberian people have never elected any Ph.D holders in the office of president. The “book people” have let them down one too many times and they don’t trust any of them anymore. And you can’t blame the people for that. Greed and tricks can lead one into a hopeless fix. May God bless Liberia. Home, my sweet home.