CITIZENSHIP UNDER LIBERIAN LAW: AN EXEGESIS© Presented to the Quarterly Assembly (02/26/2016) Liberian National Bar Association
By Seward Montgomery Cooper1, J.D.
Mr. President, Officers, and Members of the Liberia National Bar Association:
Thank you for the privilege to present a paper at this Quarterly Assembly as part of the Bar’s Continuing Legal Education Program. The information provided is culled from a variety of sources: written history, written laws including constitutions, statutes, and cases, as well as international treaties and scholarly legal treatise. The analyses and views are solely mine and do not represent the views of any government, institution, or person.
Courts usually employ six main methods of interpreting constitutions and statutes:
- Functional or Structural: based on analysis of the structures the law constituted and how they are apparently intended to function as a coherent, harmonious system (i.e. no one can properly understand a part until he has read the whole);
Doctrinal: based on prevailing practices according to stare decisis;
Prudential: based on factors external to the law or interests of parties in a
case, such as efficiency of government operations etc.
Equitable or Ethical: based on those principles of equity.
With these judicial tools in mind, I invite your attention to the subject of this paper:
“Citizenship under Liberian Law: An Exegesis”©
Several prominent societies existed on what was once called the Grain Coast. This paper does not address the varied citizenship rules of those societies nor does it address their eligibility or acceptance requirements. Instead, the research is confined to the subject of Liberia. It does not deal with pre-Liberia – the period before the existence of the Liberian State. This is mainly because the Liberian National Bar Association operates under the laws of the Liberian State and it is those laws that are germane to this Bar.
Generally, citizenship is acquired by naturalization or by birth. This paper does not deal with Liberian citizenship acquired by naturalization. It examines Liberian citizenship acquired by birth.
Citizenship by birth is of two types. It can be acquired by jus sanguinis or by jus soli.
The laws of some countries recognize both. Jus sanguinis is “by right of blood. The principle that a person’s citizenship is determined by the citizenship of the parents.”2 Liberia subscribes to jus sanguinis. Therefore one can be a Liberian by birth if at the time of one’s birth, your parent was a Liberian citizen3. Jus soli refers to the law of the place of a person’s birth. “The principle that a person’s citizenship is determined by place of birth rather than by the citizenship of one’s parents.”4 The United States of America subscribes to both jus sanguinis and jus soli.
In this presentation, the subject is dealt with in three parts: (i) Liberia’s limitation of citizenship to a particular race; (ii) Dual citizenship; and (iii) Loss of Liberian citizenship.
Limitation of Liberian Citizenship by Race
Using legal tools, I first seek to look at the sequential development of Liberia’s citizenship laws in the historical context. Dr. Mary Antoinette Brown Sherman, a former President of the University of Liberia, observes that the concept of the
Liberian State is that of a changing and fluid institution, evolving over time.5 And Professor C.E. Zamba Liberty cautions: “The historian must grapple with the past on its own terms; not as the present would have it to be, or as the ‘law of human development’ would channel it, or as his own predilections would wish it to be.”6
In undertaking this writing, I am mindful of these and of some delicate sensibilities that might be affected; but I am especially reminded of a stanza from Maya Angelou’s epic poem On the Pulse of Morning. Maya Angelou wrote: “History, despite its wrenching pain, Cannot be unlived, and if faced with courage, need not be lived again.”
Liberia’s citizenship laws have been evolving; but have been based consistently on a protectionist approach. This is not to suggest that other nation-states do not also have protectionist citizenship laws. The essential feature of Liberia’s approach is that it is race-based. Now, whether there exists a continuing rational basis for the exclusion or a compelling reason to limit Liberian citizenship in such a race-based manner is for a socio-political-economic discussion. My examination is from an historical and legal perspective.
Despite popular thinking the restriction to Negroes or persons of Negro descent, came originally from the white founders of the American Society for the Colonization of the Free People of Color (the ACS). When the ACS was being
established in 1816, exactly two hundred years ago, there were about two million black persons in the United States of America. About two hundred thousand of them were free; the rest were enslaved. The anti-slavery and anti-colonial revolution in Haiti that ousted the French had ended in 1804, just over a decade earlier. Concerns abound about a similar uprising by the enslaved population in the United States. Thus, prominent American leaders including Thomas Jefferson, John Marshall (Chief Justice), Francis Scott Key (author of the American national anthem), Henry Clay (Speaker of the House of Representatives), Bushrod Washington (George Washington’s nephew, who was a Justice of the US Supreme Court) and others formed the ACS. Their reasons varied. Some were motivated by philanthropy, others sought to rid the United States of what was perceived as a dangerous presence and a threat to the iniquitous but profitable institution of slavery. They feared the presence of free black people amidst enslaved blacks might have served as an inspiration to the enslaved population to rebel as the Haitians had done against the French. Such a rebellion they foresaw would be destabilizing.
The ACS’ main purpose was not to abolish slavery but to promote the expatriation of the free black population through a colonization program. As Professor Liberty puts it: “A persistent myth is that Liberia was founded for ex-slaves. Neither in the historical nor sociological sense is this true. Liberia was expressly founded for the “free people of color” whose origin, it is true, lay in indentured servitude and slavery. However, their social status, no matter how ambiguous, ranked above the
slave population.”7 It was the presence of this group, the free blacks, that was deemed ‘unwholesome’ by the slaveholding population of the United States.
It was later that slaveholders began freeing their slaves but on condition or with the understanding that they would leave the United States. The United States Government passed an Act of the Legislature to support the ACS, joined the effort, and instructed its Navy to capture any slave carrying vessels on the high seas and deliver the “human cargo” to the ACS’ colony.
The ACS idea was to send the free blacks as far away as conceivable. In fact, Thomas Jefferson in his book Notes on the State of Virginia published in1781 wrote that the Negro was in all respects inferior to the white man, their blood should not be mixed, and that they could never live together in a free society. Therefore, the free blacks should be sent far away. Jefferson wrote: “Among the Romans emancipation required but one effort. The slave, when made free, might mix with, without staining the blood of his master. But with us a second is necessary, unknown to history. When freed, he is to be removed beyond the reach of mixture.”8
After considering Haiti, territories west of the Missouri, and even Nova Scotia in Canada, the ACS settled on West Africa. Their mission then, they concluded, would be to spread Christianity and western civilization.
The Letter of Instructions from the all-white ACS dated June 26, 1820, which was delivered to the white agents of the Society, prohibited persons not of the Negro
race, except for a few white persons, from living in the colony of Liberia. The letter at paragraph 11 instructed: “ No white person, other than those who come out during the first year as Agents or in other employment connected with the Society or Government (and their heirs) shall ever hold land in the Colony.” 9
A significant aside, is found in the Constitution for the Government of the African Settlement adopted by the Board of Managers of the ACS in 1820, which together with the Letter of Instructions constituted the rules governing the Settlement. There we find the genesis of Liberia’s reception statute. At Article 6th it provides: “The common law as in force and modified in the United States, and applicable to the situation of the people, shall be in force in the Settlement.”10
We note that restrictive provisions relating to citizenship for people of Negro descent only and the use of American case law appears in all subsequent constitutions or other governing laws of Liberia.
The Plan of Civil Government of 1824 from the ACS re-affirmed that race-based restriction.
While still under the general supervision of the ACS Board of Directors, the Constitution of the Commonwealth was adopted on January 5, 1839. That Constitution also excluded persons not of Negro descent. It provided clearly, as
drafted, in Article Second at section 3: “None but colored persons shall ever become citizens of this Colony.”11
The same limitation of citizenship on the basis of race was agreed and included by the Liberians (all of Negro descent) in the 1847 Constitution of the Republic of Liberia. Article V section 13:
“The great object of forming these Colonies, being to provide a home for the dispersed and oppressed children of Africa, and to regenerate and enlighten this benighted continent, none but persons of color shall be admitted to citizenship in this Republic.”
The description “persons of color” was viewed as ambiguous. Professor Huberich asserts there were cases of persons of pure Arab blood from North Africa who claimed the right of citizenship; and according to Sir Harry Johnston in his seminal work Liberia, (published in 1906), there were contentions that any person could become a Liberian citizen even if he were a white Jew from Morocco, in both instances on the ground that they were of African descent.12 The Constitution was subsequently amended in 1907 to remove the ambiguity “persons of color” and replace it with “Negroes or persons of Negro descent”.13 Thus, a racial rather than a geographical or color test was inserted. Additionally, the earlier language that said such category of persons (i.e. persons of color) would be admitted as citizens was changed to “shall be eligible” for citizenship.
A review of the United States Constitution and laws during that period shows the United States itself limited citizenship on the basis of race. In fact, the U.S. Supreme Court in the notorious Dred Scott case (1857) held that Negroes were not United States citizens, although born in the United States of America, and besides that, the Negro had no rights that the white man was bound to respect.14 Also, in Morrison v. California 291 U.S. 82 (1934), the United States Supreme Court held: “ The privilege of naturalization is denied to all who are not white (unless the applicants are of African nativity or African descent), and men are not white if the strain of colored blood (black, red, or yellow) in them is a half or a quarter; or not improbably, even less. The government test always being that of common understanding”15 Thus, Chinese, Japanese, Filipinos, and Native Americans (American Indians) were all generally excluded because they are not members of the Caucasian race.16
American law has since changed, so now we find cases such as Sylvia Development Corp. v. Calvert County, Maryland (1995) where the court noted Hirabayashi v. U.S. 320 US 81 (1943). In Hirabayashi, the US Supreme Court decided that: “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality”. While that relates to citizens, the underlying concept applies equally to all persons.
As evident from a review of our present Constitution Article 27(b) we, as a People, maintain: “In order to preserve, foster and maintain the positive Liberian culture,
values and character, only persons who are Negroes or of Negro descent shall qualify by birth or by naturalization to be citizens of Liberia.” This provision, notwithstanding, Liberia is signatory to several international conventions on human rights that bar discrimination on the bases of race or color. Those treaties and conventions are subordinate to the Constitution, which provides at Article 2:
“ This Constitution is the supreme and fundamental law of Liberia and its provisions shall have binding force and effect on all authorities and persons throughout Liberia.
Any laws, treaties, statutes, decrees, customs and regulations found to be inconsistent with it shall, to the extent of the inconsistency, be void and of no legal effect. The Supreme Court, pursuant to its power of judicial review, is empowered to declare any inconsistent laws unconstitutional.”
It is therefore reasonable to assert that the provisions of the Constitution which limit Liberian citizenship to Negroes or persons of Negro descent would be upheld against a challenge based on international conventions or treaties to which the Government has subscribed and which have been ratified. Such treaties or conventions would be at the level of Acts of the Legislature and even if considered higher than statutes, they are lower than the Constitution within the hierarchy of Liberian laws.
Chapter IV at Articles 27 and 28 of the 1986 Constitution deal with Citizenship:
a) All persons who on the coming into force of this Constitution were lawfully citizens of Liberia shall continue to be Liberian citizens.
b) In order to preserve foster and maintain the positive Liberian culture, values and character, only persons who are Negroes or of Negro descent shall qualify by birth or by naturalization to be citizens.
c) The Legislature shall, adhering to the above standard, prescribe such other qualification criteria for and the procedures by which naturalization may be obtained.
Any person, at least one of whose parents was a citizen of Liberia at the time of the person’s birth, shall be a citizen of Liberia; provided that any such person shall upon reaching maturity renounce any other citizenship acquired by virtue of one parent being a citizen of another country. No citizen of the Republic shall be deprived of citizenship or nationality except as provided by law; and no person shall be denied the right to change citizenship or nationality.”
The provision of the Constitution that speaks directly to dual citizenship is found in the first full sentence of Article 28:
“Any person, at least one of whose parents was a citizen of Liberia at the time of the person’s birth, shall be a citizen of Liberia; provided that any such person shall upon reaching maturity renounce any other citizenship acquired by virtue of one parent being a citizen of another country.”
This is the only place in the Constitution that speaks about the subject. It is an established rule that the primary indication of the intent of the Constitution is its language. It is also a general principle that drafters of a law state in the law what they mean, and mean in a law what they state therein. Drafters of the Liberian Constitution included some of Liberia’s best legal minds. No wonder the provisions are stated lucidly and precisely.
In constitutional interpretation, where the language is plain, clear, and determinate, no interpretation is required.
The relevant sentence of Article 28 states clearly that if you have one parent who is a Liberian citizen at the time of your birth, you also are a Liberian citizen. You are, however, at your maturity (presumably 21) required to renounce the other citizenship acquired by virtue of the citizenship of your non-Liberian parent, if you are to keep your Liberian citizenship.
No requirement exists for renunciation of Liberian citizenship where both parents at the time of the person’s birth are or were Liberian citizens. This conclusion derives, among other factors, from rules of interpretation and legal maxims.
The Constitution expressly states the circumstance under which a person who holds more than one citizenship must renounce the non-Liberian citizenship. That circumstance is when a parent is not a Liberian citizen and the other citizenship is acquired by virtue of that non-Liberian parent’s foreign citizenship. A rule of interpreting laws require that when certain persons or things are specified in a law, an intention to exclude all others from its operation may be inferred. Under this maxim, if a statute specifies one exception to a general rule or assumes to specify effects of a certain provision, other effects are excluded. This is the rule concisely stated: expressio unius est exclusio alterius. It is also stated as expressio unius personae est exclusio alterius. Simply put: The mention of one person means the exclusion of another. Therefore, since only a particular category of persons is mentioned in the Constitution, the provision is applicable only to that category of persons and no one else.
Moreover, the rules of interpretation also provide that all things that are not expressly prohibited, when there exists expressed prohibitions, those things are permissible. The maxim in Latin is: permissum videtur in omne quod non prohibitum.17
Recourse to the history of the Constitution is also particularly useful. It should be recalled that the People’s Redemption Council in the early 1980’s appointed a Constitution Commission headed by Professor Amos C. Sawyer. That Commission submitted a draft constitution in 1983. That draft was than submitted by the PRC to
a Constitutional Assembly selected from each of the counties then comprising the Republic. The Assembly met in Gbarnga under the chairmanship of Dr. Edward B. Kesselley. A revised draft constitution evolved from the deliberations of the Assembly. That draft was submitted to the Liberian people in a referendum. The people adopted the revised draft, thereby making what today is the Constitution of the Republic of Liberia.
Below is the relevant language of the 1983 draft by the Sawyer Commission:
“Article 28. Any person, at least one of whose parents was at the time of the person’s birth a citizen of Liberia, shall be a citizen of Liberia; provided that where such person shall have acquired the citizenship of another country by virtue of having been born in that country or by virtue of one parent being a citizen of another country, that person must, upon attaining the age of eighteen years, renounce any other citizenship so acquired. Such declaration shall be made before a circuit court in Liberia or before a consular officer of the Republic, if made outside Liberia. Failure to make such a renunciation within one year after attaining such age shall result in forfeiture of Liberian citizenship.
The 1986 Constitution provides:
Article 28. Any person. At least one of whose parents was a citizen of Liberia at the time of the person’s birth shall be a citizen of Liberia; provided that any such person shall upon reaching maturity renounce any other citizenship acquired by virtue of one parent being a citizen of
another country. No citizen of the Republic shall be deprived of citizenship or nationality except as provided by law; and no person shall be denied the right to change citizenship or nationality.
The differences are glaring. Omitted is any reference to citizenship acquired by virtue of being born in another country (jus soli) or any requirement to renounce such citizenship acquired by place of birth. The only category of persons referred to are those persons who have one non-Liberian parent. It is clear that the Assembly having considered the matter of citizenship acquired by birth in another country (citizenship by jus soli), deliberately and intentionally decided to delete it from the draft submitted to the people, and require a renunciation in the specifically expressed circumstance. In MPC et al v. National Elections Commission et al (2011), the Supreme Court rendered its decision based on the clear wording of the Constitution and the open, written expressed intent of the Assembly. Therefore, with the Constitution approved by the People of Liberia, which is extant, plainly reading as stated above, there can be no different conclusion. One cannot infer into the Constitution, where there exists no ambiguity, any other prohibition or requirement.
In view of the history of the Constitution, and in the absence of any Constitutional prohibition, it follows therefore that any person both of whose parents were citizens of Liberia at the time of the person’s birth and who acquires another citizenship by virtue of being born in another country that adopts the principle of jus soli as part of its laws, is by right also a Liberian citizen and is not required under the Constitution to renounce such citizenship so acquired.
Additionally, it is debatable whether even now the statute that declares any person of Negro descent who is born in and under the jurisdiction of Liberia to be a citizen of Liberia, is still applicable. If it is still valid, conceivably such persons hold dual citizenship if their Negro parents are of another country that applies the principle of jus sanguinis.
These categories of persons: (i) certainly, those persons born of two Liberian parents under the doctrine of jus sanguinis are Liberians and if born in a country that applies jus soli are also citizens of that other country, ergo they constitute Liberian citizens with lawful dual citizenships under Liberian law; and (ii) if the existing Aliens and Nationality Law is valid, which says any person of Negro descent born in Liberia and under the jurisdiction of Liberia is a Liberian citizen, then arguably such a person would have dual citizenship if their parent(s) came from a country that applies jus sanguinis.
In arriving at this conclusion, one applies the legal doctrine that legal rights are to be interpreted as broadly as possible and the presumption should be in favor of the rights.
LOSS OF CITIZENSHIP
The Sawyer Commission draft also provided:
(a) No citizen of the Republic shall be deprived of citizenship or nationality of Liberia except as provided herein or by an act of the Legislature consistent with the provisions of this Constitution; and no person shall be denied the right to change citizenship or nationality.
(b) No Liberian female citizen, who by marriage acquires the citizenship of another country, shall lose her Liberian citizenship unless she renounces it. [Note the requirement of an affirmative act of renunciation.]
Article 30 On application made on behalf of the Republic by an authorized official of Government, the circuit court may deprive a citizen of Liberia of his citizenship, whether he be a Liberian by birth or naturalization, on any one or
more of the following grounds, and with such exceptions as set forth below;
[Note requirement for judicial proceeding before loss of citizenship, this is consistent with requirements of due process.]
(a) acquiring the citizenship of another country; or taking an oath or making an affirmative or other formal declaration of allegiance to a foreign state voluntarily;
(b) exercising a free choice to enter or serve in the armed forces of a foreign state, unless prior thereto such entry or service was specifically authorized by the President or the Legislature;
(c) voting in a political election of a foreign country;
(d) acquiring Liberian citizenship by fraud, misrepresentation, concealment of material facts or any other grossly improper or irregular practice; or
(e) making a formal renunciation of his Liberian citizenship before a diplomatic or consular officer of Liberia in a foreign state.
Also significant is the complete deletion of what would have been provisions on citizenship in Articles 29 and 30, quoted above, except for a few words of the proposed draft Article 29(a) that were accepted and included in the last sentence of Article 28 of the Constitution.
The rejected provisions of the proposed draft Article 30 are similar in many substantive ways to the statutory provisions of the existing Aliens and Nationality Act pertaining to loss of Liberian citizenship.18 That Act predates the Constitution and may be subject to successful Constitutional challenge, among other reasons because section 22.2 provides:
“The loss of citizenship under Section 22.1 of this title shall result solely from performance by a citizen of the acts or fulfillment of the conditions specified in such action, and without the institution by Government of any proceedings to nullify or cancel such citizenship.”
It is reasonable to assume that the proposed language submitted in the 1983 draft was deleted because the Constitutional Advisory Assembly did not agree to loss of citizenship on those grounds or, and perhaps most likely, considered those details more within the province of the Legislature and unsuited for inclusion in the Constitution – “the supreme and fundamental law of Liberia”19.
Whatever the reason, the provision that citizenship can be effectively lost automatically violates the Fundamental Rights of individuals that is firmly, emphatically established in the Constitution. The Constitution at Article 20 (a) commands that no person shall be deprived of life, liberty, security of the person, property, privilege or any other right except as the outcome of a hearing judgment consistent with the provisions of this Constitution and in accordance with due process of law. The Supreme Court of Liberia has long held that due process is the law that hears before it condemns, that provides an opportunity to be heard, that requires notice and an opportunity to defend in an orderly process. Wolo v. Wolo 5 LLR 423 (1937) also LTA v. West Africa Telecommunications decided March (2009).
The Constitution also at Article 27(a) unambiguously allows anyone who was a citizen of the Republic of Liberia prior to the effective date of the Constitution to retain Liberian citizenship.
Interestingly, the provisions of section 22.1 are similar to provisions that were in the United States statutes.20 In Afroyim v. Rusk 387 US 253(1967), a US citizen
voted in an Israeli election and was denied his US passport by the US State Department. The Department claimed he had lost his US citizenship automatically under the statute by voting in a foreign election. The US Supreme Court held that the government could not take away a person’s citizenship without the person’s assent. In substance, the Court decided that Congress does not have the constitutional authority to enact legislation imposing involuntary loss of citizenship.21 The US Supreme Court held such provisions are unconstitutional and therefore unenforceable. There have been other United States cases on these statutes and the courts have held that a person has a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship;22 and that the legislature has “no power expressed or implied, to take away an American’s citizenship without his assent”. Indeed, the United States Supreme Court speaking through Justice Hugo Black in Afroyim23 stated, “In our country the people are sovereign and the Government cannot severe its relationship to the people by taking away their citizenship.”
Under Liberian law, the provisions of the 1973 Aliens and Nationality Law on automatic loss of citizenship, which were passed long before the 1986 Constitution, are arguably unenforceable. In In re the Constitutionality of the Act of the Legislature of Liberia, approved Jan. 20th 1914,24 Mr. Chief Justice Dossen wrote:
“ It follows . . . from the most ordinary reasoning that if the Legislature passes a statute whose provisions infringe in the lowest degree what we have termed the Highest Law, that statute is void ab initio; because of its repugnancy to the Constitution.”
I end as I began. This paper has sought to look at “Citizenship under Liberian Law” almost strictly from an historical and legal perspective with a focus on selected subjects: (i) The Negro requirement to be eligible for citizenship, (ii) dual citizenship, and (iii) loss of citizenship.
Maya Angelou reminds us again in On the Pulse of Morning: “ You, created only a little lower than
The angels, have crouched too long in
The bruising darkness, Have lain too long Face down in ignorance
Lift up your faces, you have a piercing need For this bright morning dawning for you.”
ARISE! THANK YOU.