Cllr. Gongloe: THE 2% RULE AND THE FUTURE OF DEMOCRACY IN LIBERIA:Why Liberia Must Choose Inclusion Over Exclusion in Building Democracy

Commentary by Tiawan Saye Gongloe

Tiawan Saye Gongloe is a Human Rights Lawyer, Former Solicitor General of Liberia, Former Minister of Labor, Former President of the Liberia National Bar Association, Assistant Professor of Law at the Louis Arthur Grimes School of Law, University of Liberia, Former Presidential Candidate, and Advocate for Good Governance, Constitutional Democracy, and the Rule of Law.
Mr. Gongloe was a candidate in the 2023 Presidential and Legislative Elections and has long advocated for constitutional democracy, political inclusion, human rights, accountability, national reconciliation, and the rule of law in Liberia.

I. Introduction
Democracy is strongest when the people, and not the government, decide which political parties should survive and which should disappear. Any law that allows the government to eliminate political parties because they performed poorly in a previous election raises serious constitutional, democratic, historical, and policy concerns.
One such law is Section 5.A(1) of Liberia’s Elections Law, enacted on September 17, 2014, which provides that a registered political party that fails to obtain at least two percent (2%) of the votes cast in a presidential election or fails to win at least one seat in the Legislature may be barred from participating in subsequent elections.
This provision deserves careful national examination because it strikes at the heart of political freedom, democratic choice, and the constitutional promise that political power belongs to the people.

II. Democracy Exists to Protect Choice
The essence of democracy is that citizens are free to choose among competing political ideas. Political parties are merely vehicles through which citizens exercise their constitutional rights to associate, organize, campaign, vote, and seek public office.
When the government tells citizens that the political party of their choice can no longer participate in elections because it failed to meet a numerical threshold in a previous election, the government ceases to be a neutral referee and becomes an active participant in determining which political ideas may compete in the political marketplace.
Such a policy is fundamentally inconsistent with the spirit of constitutional democracy.
The Constitution of Liberia guarantees freedom of association, equal protection of the law, and the right of citizens to participate in government. These rights are not conditioned upon electoral success.
A political party may be unpopular today and popular tomorrow. The people—not the government—must determine its fate.

III. The Constitutional Question
The Constitution of Liberia is founded upon the principle of popular sovereignty.
Article 1 declares that all power is inherent in the people.
Article 2 establishes the supremacy of the Constitution and provides that any law inconsistent with the Constitution shall be void to the extent of the inconsistency.
Article 11(c) guarantees equal protection of the law.
Article 17 protects freedom of association.
Article 77(a) guarantees that all citizens shall have the right to form and join political parties.
Article 77(b) guarantees the right of citizens to participate in the political process and to vote and be voted for in accordance with law.
Section 5.1(A) raises a serious constitutional question because it effectively permits the exclusion of political parties from future elections based solely upon their performance in a previous election.

The Constitution does not say that citizens may form and join political parties only if those parties receive two percent of the vote. The Constitution does not say that constitutional rights disappear because a political party performs poorly in an election. The Constitution does not distinguish between supporters of large political parties and supporters of small political parties. Every citizen enjoys equal constitutional protection.
The central constitutional question therefore becomes simple:
Should the people decide which political parties survive, or should the government decide?
The Constitution suggests that the answer belongs to the people.

IV. History Demonstrates That Political Fortunes Change
One of the greatest weaknesses of Section 5.A(1) is its assumption that political support remains constant over time. History proves otherwise. Throughout Liberia’s history, political parties have risen, declined, and risen again. The True Whig Party governed Liberia for more than a century and appeared politically invincible. Yet it eventually lost power and ceased to dominate Liberian politics. The National Democratic Party of Liberia (NDPL), which dominated politics during the Doe era, eventually lost its influence. The National Patriotic Party (NPP), which once controlled the Presidency and the Legislature, later experienced significant electoral decline. Likewise, several contemporary political parties have performed strongly in one election and poorly in another. Some parties that once commanded widespread support have struggled in later elections, while others that were once considered insignificant have grown in strength over time.

V. Political support is never permanent.
Voters change their minds.
New generations emerge.
National priorities evolve.
Economic conditions change.
Leadership changes.
That is the nature of democracy.
A party that receives one percent today may receive twenty percent tomorrow.
A party that wins an election today may lose badly tomorrow.
The democratic process itself is designed to permit these changes.

VI. Lessons from Established Democracies
The history of established democracies offers numerous examples of political parties that struggled for years, or even decades, before eventually gaining power.
In the United Kingdom, the Labour Party spent many years in opposition before becoming one of the country’s governing parties. The Liberal Party suffered dramatic decline but remained part of the democratic process and later evolved into the Liberal Democrats.
In France, political movements have repeatedly emerged from political obscurity to become governing forces. President Emmanuel Macron’s political movement did not even exist a few years before it won the presidency. In Germany, the Green Party spent years as a small political movement before becoming one of the most influential parties in government.
In Spain, Podemos emerged from outside the traditional political establishment and rapidly became a major political force. In Greece, Syriza rose from a relatively small opposition movement to become the governing party.

In Italy, the Five Star Movement rose from outsider status to national leadership.
In India, the Bharatiya Janata Party (BJP), now the country’s dominant political party, spent years as a relatively small political force before eventually winning national power.
None of these parties would have had the opportunity to grow if the law had prohibited them from participating in future elections because of poor performance in earlier contests.
Democracy requires patience. Political ideas must be allowed to compete repeatedly until the people decide their value.

VII. An Unusual Restriction in Comparative Perspective
Many countries establish electoral thresholds.
Germany, for example, requires a party to obtain five percent of the vote to gain proportional representation seats in Parliament.
Other countries establish thresholds for legislative representation or public funding.
However, there is a critical distinction. These countries generally use thresholds to determine representation, public financing, or parliamentary privileges—not to prohibit political parties from participating in future elections.
To the best of my knowledge, no democratic country in the world has a law identical or substantially similar to Section 5.A (1) of Liberia’s Elections Law that bars a legally registered political party from participating in subsequent elections solely because it failed to obtain two percent of the presidential vote or failed to win a legislative seat in a previous election.
The normal democratic response to a weak political party is not exclusion. The normal democratic response is to allow voters to reject it again if they so choose.

VIII. The 2023 Elections Demonstrate Why Section 5.A (1) Is Misguided
The results of the 2023 General and Presidential Elections provide perhaps the strongest practical argument against Section 5.A (1). Several presidential candidates and parties received tens of thousands of votes but failed to reach the two percent threshold. Among them were:

1. All Liberia Coalition Party (35,988 votes; 1.96%);
2. Collaborating Political Parties (29,613 votes; 1.61%);
3. Liberian People’s Party (26,394 votes; 1.44%);
4. Liberia Restoration Party (15,607 votes; 0.85%);
5. Movement for Progressive Change (13,205 votes; 0.72%);
6. Democratic National Allegiance (11,184 votes; 0.61%);
7. New Liberia Party (9,813 votes; 0.53%);
8. Vision for Liberia Transformation (9,149 votes; 0.50%);
   and several others.

Collectively, these parties represented hundreds of thousands of Liberian citizens who exercised their constitutional right to support alternatives outside the dominant political parties.
The House of Representatives results reveal an even more important reality.
Several parties that performed modestly in the presidential election nevertheless obtained substantial support in legislative elections. Some won legislative seats despite low presidential percentages.
The Liberia Restoration Party won a legislative seat with only 0.75% of the nationwide House vote.
The Movement for Progressive Change won a legislative seat with only 1.04%.
Vision for Liberia Transformation won a legislative seat with only 0.81%.
The National Democratic Coalition won a legislative seat with only 1.03%.
These results demonstrate that support for political parties is often regional, constituency-based, issue-based, or influenced by candidate-specific factors.
The difference between survival and exclusion under Section 5.A (1) may therefore depend upon only a few hundred votes.
Such a result elevates an arbitrary numerical threshold above constitutional rights.

IX. Voters Have the Right to Make Different Choices
The 2023 elections also demonstrate another important democratic reality: voters do not always vote the same way in presidential and legislative elections. A striking example is the Grassroots Development Movement (GDM), whose presidential candidate, Edward W. Appleton, finished third in the presidential election. Yet his party failed to win a single seat in the House of Representatives. Indeed, the 2023 election demonstrates that a political party may receive enough support nationally to place third in the presidential race and yet fail to win a single legislative seat. Conversely, a party may perform modestly in the presidential race and still secure representation in the Legislature. These realities illustrate why voters, not statutes, should determine the future of political parties.

This result is entirely consistent with democratic practice throughout the world. Voters frequently support one candidate for President and another party or candidate for the Legislature. That is democracy. The Constitution does not require voters to be consistent. It protects their freedom to choose. A voter has the constitutional right to support one party for President, another party for Senator, another party for Representative, and an independent candidate in another race. The voters must remain free to change their minds.
Political support rises and falls. Parties grow and decline. New movements emerge.
Old movements disappear. That process should be determined by the people through elections, not by statutes that remove political parties from future competition.
The purpose of election laws should be to facilitate democratic participation, not to restrict it.

X. Liberia Must Learn from the Consequences of Exclusion
Beyond the constitutional questions, Section 5.1(a) raises an important historical question: What lessons has Liberia learned from its own past?
Historically, Liberia’s greatest political challenge has not been inclusion. It has been exclusion.

For much of Liberia’s history, political power and economic opportunity were concentrated in the hands of a relatively small political elite. Large segments of the population felt excluded from meaningful participation in political decision-making and from the benefits derived from the nation’s vast natural resources. Many Liberians came to believe that while the nation generated enormous wealth from its natural resources, the benefits were disproportionately enjoyed by a small segment of society while the majority remained poor and marginalized.

The consequences of exclusion were devastating.
Liberia experienced political unrest, a military coup, counter-coups, and two brutal civil wars that claimed the lives of more than 300,000 Liberians—approximately ten percent of the country’s population at the time. While the causes of these conflicts were complex, one recurring theme was the perception and reality of exclusion—political exclusion, economic exclusion, and social exclusion.

The lesson of Liberian history is therefore clear:
Exclusion breeds resentment, instability, and conflict; inclusion promotes legitimacy, peace, and national cohesion. The constitutional order established in 1986 was intended in part to correct the mistakes that contributed to Liberia’s instability. The Constitution seeks to create a democratic society founded upon participation, equality, freedom of association, political competition, and respect for the sovereignty of the people.

It is therefore difficult to reconcile a law that excludes political parties from future elections with the broader constitutional objective of building an inclusive democratic society.

A nation that has suffered from exclusion should be careful not to institutionalize exclusion in its laws.

XI. Democracy Cannot Be Built by Virtually Legislating a Two-Party System
Some persons have argued that Liberia should evolve into a two-party system similar to the United States, where the Democratic Party and Republican Party dominate national politics; Ghana, where the New Patriotic Party and National Democratic Congress are the principal competitors; Nigeria, where the All Progressives Congress and People’s Democratic Party have become dominant; or Sierra Leone, where the Sierra Leone People’s Party and the All People’s Congress have traditionally been the major political forces. This argument reflects a misunderstanding of how democratic systems evolve. The existence of dominant political parties in these countries was not created by laws excluding smaller parties from political competition. Rather, it developed gradually through the free choices of voters over many years and through repeated electoral competition. Indeed, all of these countries have more than two political parties.

The United States has the Libertarian Party, Green Party, Constitution Party, Working Families Party, and numerous state-based parties. Ghana has several smaller parties that regularly contest elections. Nigeria has numerous registered political parties that participate in elections.
Sierra Leone likewise has several parties beyond the Sierra Leone People’s Party (SLPP) and All People’s Congress (APC).
The same pattern exists throughout democratic societies.
Political dominance is not imposed by law. It emerges from the free choices of citizens.
That is how democratic societies are built.
That is how democratic legitimacy is earned.
The role of election laws is not to manufacture political outcomes. The role of election laws is to guarantee that all citizens and all qualified political parties have a fair opportunity to compete for public support. If the Liberian people someday choose to support two dominant political parties, that is their democratic right. If they choose to support three, four, five, or ten viable political parties, that is equally their democratic right. The Constitution leaves that choice to the people. It does not leave it to the Legislature. It does not leave it to the National Elections Commission. And it does not leave it to any political party.

XII. The Experience Since 2014
Another significant fact deserves consideration. The provision now found in Section 5.1(a) was enacted in 2014.For more than a decade, the National Elections Commission has not meaningfully enforced the provision to exclude political parties from participation in subsequent elections. During that period, numerous political parties that arguably fell below the statutory threshold continued to participate in elections without serious challenge.

Equally important, no major political party has made the enforcement of Section 5.1(a) a central political issue. Neither governing parties nor opposition parties have vigorously sought to exclude competitors on the basis of this provision.

This practical reality may reflect a broader recognition that democratic competition is best resolved by voters rather than by administrative exclusion.
It may also reflect an understanding that the provision raises serious constitutional questions concerning freedom of association, political participation, equal protection of the law, and the sovereignty of the people. The fact that the provision has remained largely dormant for more than a decade suggests that many Liberians, regardless of political affiliation, recognize the difficulties associated with enforcing a law that restricts political participation in a constitutional democracy.
Conclusion
Liberia’s history teaches us that exclusion is dangerous, while inclusion strengthens peace, national unity, and democratic stability. The framers of the 1986 Constitution understood this reality. Having emerged from a history marked by political domination, social inequality, military intervention, and growing national discontent, they sought to establish a constitutional order founded upon liberty, equality, participation, political competition, and respect for the sovereignty of the people. The Constitution was not designed to reduce political participation; it was designed to expand it.

The true test of a democracy is not how it treats dominant political parties. The true test is how it treats minority voices, emerging movements, and citizens whose political views may not presently command majority support. Liberia must therefore be careful not to institutionalize exclusion in its laws. Our nation has already paid too high a price for exclusion.

The future of Liberia should be determined by ballots, not barriers; by persuasion, not prohibition; by inclusion, not exclusion; and by the free choices of the Liberian people, not by statutory restrictions that narrow political competition. A vibrant democracy does not fear competition. A constitutional republic does not fear participation. A nation committed to peace does not fear inclusion. Liberia must move forward—not backward—toward a democratic future in which every citizen has the right to organize, every political party has the right to compete, and every voter has the right to decide.

Liberia must learn from its past. We must learn from the experiences of successful democracies around the world. Above all, we must remain faithful to our Constitution, which places sovereignty not in political parties, not in government officials, not in election administrators, but in the people of Liberia.

That is the promise of our Constitution.
That is the lesson of our history. That is the path toward a more peaceful, united, democratic, and prosperous Liberia. All Liberians, including members of political parties not directly affected by this restrictive provision of the amended Elections Law, should remember the lessons of history and oppose this undemocratic and unconstitutional provision of the Elections Law of Liberia. The violation of the rights of one person is the beginning of the violation of the rights of all. This lesson is not new. German Lutheran pastor Martin Niemöller recognized it during the Second World War when he warned that the failure to defend the rights of others eventually endangers the rights of all. His famous reflection reminds us that an injustice tolerated against one group today may be directed against another group tomorrow.