George K. Fahnbulleh

Ideas and Opinions...

Open Letter to President Sirleaf Regarding Justice Minister Christiana Tah’s Contempt Ruling

This letter appeared in FrontPageAfrica on January 28, 2014

Dear Madam President:

It was refreshing for me to listen to your Justice Minister, Christiana Tah’s BBC magnanimous interview on January 24, 2014 – a day after the Liberian Supreme Court Denied her petition to reconsider the punishment they imposed on her for discharging her duties as the principal legal officer of the Republic of Liberia. Apparently, the court took umbrage at the Minister for exercising her statutory power to grant compassionate leave to a journalist who had been imprisoned for blowing the whistle against an allegedly corrupt Minister.

I will defer substantive comment about the absurdity of the court’s ruling as I suspect that it could attract a tome of seasoned critiques in due course. However, embracing this development as a learning opportunity to help deepen our democratic practice, I write to address your confounding inaction and implicit abdication of authority as the Chief Executive of the sovereign State.

I have opted to write this letter under the cloak of a pen name, not for the fear of retribution, rather to illustrate the frustration that comes with trying to pierce a veil of secrecy. Your studied silence in the face of public outcry about the Liberian Supreme Court’s incoherent ruling against your Minister of Justice, Christiana Tah, seems to confirm the consensus among discerning analysts regarding your complicity in orchestrating the witch-hunt.

As the Chief Executive of the State, it is not unreasonable for you to take responsibility for an action your Minister undertakes at your behest. Equivocating or sitting on the fence is not a viable option; insofar as it suggests your endorsement of the court’s judgment, it signals your vote of no confidence in a Minister whose integrity and credibility is underscored by the action in question. If indeed the Minister has lost her principal’s confidence, it is all the more telling that you have not relieved her of a crucial portfolio the effectiveness of which you surreptitiously undermine.

Beyond the realm of speculation, I took solace in the objective BBC interview as evidence that Minister Tah found the fortitude to carry on with her responsibilities to the extent possible under the circumstances. Her relentless commitment is reminiscent of your 2011 Harvard Commencement speech in which you resoundingly extolled the virtues of hope and resilience. In that speech, you also reflected on the costs of “self-confidence, sometimes called arrogance“. Recalling “times when the burden of standing tall by one’s convictions seemed only to result in failure,” you insisted that “through it all, my experience sends a strong message that failure is just as important as success.”

As the point of departure for my present observations, Madam President, I will borrow your acclamations of the dividends of peace, your tribute to “Liberian women who fought the final battle for peace,” and your proclamation of both pride and humility “as the first woman President of my country – democratically elected” which you noted has allowed you to lead “national transformation, a change needed to address an environment characterize by such awesome challenges as dysfunctional institutions”.

What are the prospects for the rule of law which is a fundamental condition for the transformation you espouse where the highest court of the land can get away with arbitrarily suspending the license of the government’s chief legal officer under the pretext of a perceived slight?Listening to the questions that Minister Tah fielded in her BBC interview indicates that Liberians remain focused on how best she can facilitate their pursuit of justice.

While the Supreme Court’s suspension of the Minister’s license to practice is not a mere symbolic gesture, the obvious sense of obligation that impels her to persevere in going about her business in the best interest of the country is a testament of uncommon patriotism. This is especially given that you, the principal at whose behest she intervened to grant the contested compassionate leave has studiedly remained silent in the court of public opinion throughout her petty, yet humiliating, ordeal with the Supreme Court.

Madam President, what’s your story? Is it easier to blame your challenges on vested interests? What are these interests and who enabled their chieftains? Revisiting your Supreme Court appointees, what are their antecedents? Did you honestly expect that these entities would transcend their pasts sufficiently to evolve into objective custodians of justice or were the appointments a deliberate ploy to institutionalize a kangaroo court? If the Minister of Justice is denied Justice by your highest court, what hope is there for the ordinary Liberian?

Do you not appreciate the profound threat that the judiciary’s encroachment into executive powers constitute, not just to your administration, but to the rule of law which is bound to safeguard democratic consolidation in Liberia? My paramount concern is more about the collective good and less about how history will judge you for squandering a pristine opportunity to rebuild. But, I’d be remiss not to emphasize that there is yet time for you to course correct.

Madam President, we recall the length you went to endear yourself to the international community as a patriotic opposition leader committed to the essence of equity and fairness. I was one of millions ecstatic when you were elected Liberia’s President and when you received the Nobel Peace Prize for advocating women’s participation in peace-building (presumably on the assumption that women’s participation makes a qualitative difference).

However, I must confess that I have had growing cause to ponder to what avail. What happened to the ideals that you championed as an activist and in your quest for office? Will the real Ms. Sirleaf please make herself known? Will you sacrifice the best interest of the nation for personal aggrandizement? Or will you summon up the courage to redeem the remaining years in your tenure to steer Liberia back on a course that gives it a meaningful chance to endure as a viable democracy?

To refresh my memory of why you earned my support, I revisited some highlights of your profile in the public domain. In a CCTV Faces of Africa footage entitled “Ellen Sirleaf: Mother of Liberia,” you excoriated politicians to distinguished your own public service aspirations. As you put it,

What I wanted to do was be a leader – a leader motivates people, inspires them and gets them to do things and politician just talks. … It hasn’t all been easy; I have had my share of failures, but I am so glad that the success has exceeded the failures and that is why I am where I am today; I was able to rise above the failures and rise above the difficulties. I hope I could send that message to every other woman or every other person that it takes perseverance and commitment and dedication and hard-work and honesty – a combination of those values can get you there.

Ironically, that video report was posted on the web on October 22, 2013, exactly a week after the Supreme Court heard proceedings indicting your Minister of Justice for contempt. In conclusion, the narrator clarified that your leadership has not escaped controversy, noting for example that you came “under fire for promoting 3 of [your] 4 sons into high positions”. A cursory review of official dispatches and popular testimonials on Liberia reveal sordid details of pervasive corruption and abuse of power throughout your government.

The 2012 Human Rights Report on Liberia which corroborates that officials engage in corrupt practices with impunity, relates the most serious human rights abuses to a lack of justice which stems from judicial inefficiency and corruption, etc. In delivering the 166th Independence Day National Oration on July 26, 2013, your own ruling Party chair, Varney Sherman, lamented that nearly ten years after the civil war and after two cycles of democratic elections, Liberians who have come to terms with the harsh reality “that peace is not necessarily the absence of war,” ask themselves whether the Government is sufficiently accountable and responsive to their needs.

Sherman proceeds to warn that

our country cannot be transformed when public service is evaluated by the Liberian people at large as the place where corruption exists, persists and is practiced as a matter of course and with impunity.

Hopes that your successive tenure will usher in a healing era of restorative justice and grassroots empowerment are increasingly eviscerated by your administration’s reenactment of chilling strategies that bear strong parallels with some of the conditions that culminated in the inhumane war.

Many who celebrated your democratic election as an antidote for amputation, castration, and other decidedly villainous modes of containing opposition have been astounded by your disdain, discipline and punishment of dissent. Yet, we know that dissent is the lifeline of democracy. What is the future of democratic practice where a civil society stalwart like the press is either alienated or co-opted or where the Bar – the iconic bulwark of justice – is unconscionably intimidated?

Is the assumption that the so-called “politics of the belly” which has become the hallmark of your administration overrides the public good? It is bad enough to imagine that a global goodwill ambassador such as yourself would stoop as low as purposefully installing roguish personnel in cardinal positions of power and normalize incestuous appointments which empower the likes of your sons to rid rough shod against all and sundry as if the affairs of a democratic polity are a birth-right entitlement.

If you care to take the pulse of your constituency, you will be dismayed to reckon how palpable sentiments for your resignation have grown. Yet, we know from experiences exemplified by the Arab Springs that a vacuum of power or unplanned succession could be a cure worse than the disease. Go figure, Madam President.

Ms. Susan Peyton,
New York, New York

Hernando De Soto: Commanding Heights Interview

Hernando de Soto
Economist Hernando de Soto, author of "The Other Path" and "The Mystery of Capital," is the director of Peru's Institute for Liberty and Democracy and a champion of market economics and property rights.This Interview was conducted on PBS: Commanding Heights

Interview Contents

Capitalism and the Road to Prosperity
The Influence of Developed Nations on Developing Countries
The Roots of Poverty in the Developing World
The First World vs. the Third World
Assessing the Success of Capitalism
Property Law and Capitalism
Creating Property Law
Bureaucratic Barriers to Entrepreneurship
Legal System Reform
Capitalism as a "System of Representations"
The Challenges of Property Law Reform
Making Capitalism Work for the Poor
The Institute of Liberty and Democracy

 

    • Capitalism and the Road to Prosperity
      INTERVIEWER: Why does capitalism fail everywhere else and triumph in the West?

      HERNANDO DE SOTO: Because the West has a property rights system, and property rights systems seem to be about ownership. What we're discovering more and more is that it's really the system that undergirds the system of values called capitalism. In other words, you have property rights in the West. In developing nations we do, too, but they're not legal. Once you legalize them and you have recordkeeping systems and you have tracking systems and you've got contracts and you're able to get all the information about somebody's ownership over an asset, all of a sudden you obtain enormous amounts of data that you do not have in developing nations.

      In the West, that is captured in the property system. If you are somebody that is honorable and pays their debts, which is what somebody would be interested in, that's going to be captured in your records, and your records are linked to your property records. All of these are property rights, [but we don't have them] organized in a central system ... in Third World countries.

      INTERVIEWER: Is this a possible change in the Third World?

      HERNANDO DE SOTO: Yes, of course. ... You [The United States] were also a Third World country 150 years ago, and you transformed yourselves into a First World country. The same occurred for most countries throughout the world.

      INTERVIEWER: And how long will that take in the Third World?

      HERNANDO DE SOTO: If we don't do anything explicit about it and we follow your formula, which is to zigzag our way to prosperity, it could take 300, 500 years. From the prosperous Catholic city of Florence until [the time when] all of Italy started having a right to prosperity, not sometimes but all the time, it took 500 years. What we say in The Mystery of Capital is that there are shortcuts, and once we learn what you did, what was necessary, especially the importance of property rights beyond ownership, we should be able to get there very quickly. The Japanese did it, for example, under MacArthur's occupation. They converted from a feudal system to a property-ownership system.

    • The Influence of Developed Nations on Developing Countries

      INTERVIEWER: Why do you come here and go on American television? What are you hoping to achieve by this trip?

      HERNANDO DE SOTO: A lot of the support we get for working in other Third World countries actually comes from the First World, from developed countries like the United States, so it's important to get our message out. It's important first for support [and] funding, and secondly to influence policy. So much foreign policy is mistaken as to where the challenges really are. We'd like to make sure that in developed countries, who have so much influence on what developing and former communist nations are, people realize what the real issues are about. So it's important to come here.

      INTERVIEWER: Does the developed world realize what the issues are?

      HERNANDO DE SOTO: I think that the developed world is beginning to realize the issues. A lot of things that have gotten in the way have to do with culture. Culture exists; it's important. I go to Paris because I want to [experience a different] culture. When I go to Paris, I know I'm in another culture. But I don't think culture has really very much to do with the fact that some people are desperately poor and others are wealthy. One has to get that out of the way. It's important for people in the United States to realize that they, too, were a Third World country one time, and regardless of the culture, they became as developed as Spain was once. We have to do the same thing. We have to let them understand that it's invisible things such as the law and institutions which have enormous amounts of things to do with prosperity, and it's not easy to get that message across. You get a tractor, you get a big machine, and say these guys have got it and these other guys don't, and therefore these guys [with the tractor] are more prosperous than the second guys. That's easy to illustrate. When we talk about law, when you talk about institutions, it's very hazy stuff, so you have to go back and sink it in one time after another. It's a lifetime's work, I'd say.

      INTERVIEWER: The idea that the U.S. was once an underdeveloped country is hard to conceive when you sit here in New York. This looks like it's been here forever.

      HERNANDO DE SOTO: That's right. If you look at New York, there's a feeling that all of these buildings have been here forever, but in fact they haven't been here for that long. They certainly weren't here 100 years ago, not the ones you are photographing now. Enormous amounts of things can be done in half a generation. It's incredible. And when you go and see the United States, Williamsburg, which used to be a capital of the United States, and compare it with the way Mexico City was 120 years ago [or] what Lima was, we probably had bigger cities than you did in the Unites States, and all of this [growth] has been recent. A lot of it has to do with the right laws, with the right kind of institutions.

      INTERVIEWER: When you come to New York and see the kind of wealth that's here and the kind of consumption that's here, how does that make you feel compared to the kind of people that you and your people work with day to day?

      HERNANDO DE SOTO: The difference between being in the U.S. and being in Peru is that a very small number of people in the U.S. are concerned with development for the very simple reason they're already developed, while development is what we're all about in the Third World. We've got a lot of the human touch; we've got a lot of the human dimensions. What we're missing is prosperity. So naturally when you go to Latin America and you talk about development, it's a big issue. Here in the United States it's an issue for the foreign-policy types. I think they call them foreign-policy wonks, some multinationals who have investment abroad, some internationally minded citizens, but they're not the majority of people. They're the minority, and that's what we deal with -- the minority, the ones who care.

      INTERVIEWER: How much does the policy in the developed world actually impact what you're trying to do in the developing world?

      HERNANDO DE SOTO: What happens in the developed world impacts what happens in the Third World and in former communist nations very much. First, because people from developed nations have got more money, so people on the left in the United States who want to press certain points of view can actually turn governments around. So can people on the right. The war for development is fought on both fronts, both in the Third World and in the First World. In the First World, if somebody thinks that a human rights issue is very important regarding terrorism and they actually can manage to sink that point in and make it a big issue internationally, it's all about whether you're getting funds or not. You can decide the cause of that war here in the First World because the funding for the weapons, the funding for the balance of payments stabilization, the funding for economic adjustment, it all comes from the First World. So when the First World blinks, the rest of us blink as well, and even harder. So the war is also here.

      Let me give you an idea: Aid agencies which are extremely helpful are mainly concerned about physical things. How do we help the poorest of the poor? They give a lot of weight to them and relatively little weight to the changing of institutions or the changing of legal systems. That's a definite impact, because they pour money to those people taking care of the physical infrastructure stuff -- that's also where the best brains in the Third World go to. And they don't go to changing a legal system. So what happens in the First World is very important to us.

      INTERVIEWER: Do you feel like you're making progress?

      HERNANDO DE SOTO: Oh, yes. I think we are definitely making progress. The press is the first indication. We've been out in the last few months and in a lot of the major magazines in the United States and in Europe and in the UK. It's catching on because we're also making sure that the way our arguments are structured is not only understandable by the right people in developing countries but also can be read by the right people in the First World nations. It's very important to make the argument relevant to everybody.

      INTERVIEWER: Recently we were in Mexico and we interviewed Vicente Fox. He talked about your ideas and said, "We're listening to what de Soto is saying. We're also going to Egypt and trying to really connect with top leaders in developing countries...."

      HERNANDO DE SOTO: What we're trying to do is talk to very important leaders in the Third World -- not all of them, [as] there are about 160 nations between the Third World and former communist nations. What we're trying to do is to talk to some of those that are very relevant for a variety of reasons, but I would say that the principal one is so that the argument doesn't build up that what we're doing is a Latin American issue, or what we're doing has to do with former Spanish colonies. We think what we're doing has to do with human nature and the way societies get organized. So it's very important for us to be able to talk to the Cabinet in Egypt, which we do, because here we are talking with Muslims with a 6,000-year-old civilization, and the problems they've got are very similar to ours. It's important for us to be talking to Fox as well, because he's basically saying some of the things that the Egyptians have begun to say and the same things that Gloria Arroyo is saying in the Philippines. It's important for us to be in each different culture to indicate that the problems we're facing are standard and they are policy issues that can be dealt with.

      INTERVIEWER: In Mexico, they've got a lot of optimism, but they've got a huge challenge. What do you think?

      HERNANDO DE SOTO: Personally, I think that Vicente Fox and his people are doing excellent stuff. One has to keep one's eye on them very much because they're breaking an old monopoly tradition in politics, and so they've got a lot of difficult challenges to face. They're very credible now; the important thing is for them to continue being credible. They're also moving a lot of funds at the same time. They've got a very difficult task ahead of them, but we wish them well and we're going to support them as much as we can.

    • The Roots of Poverty in the Devloping World

      INTERVIEWER: Let's talk a bit about your personal history. How did you get involved in these sorts of issues of capitalism, of poverty, and property rights?

      HERNANDO DE SOTO: The way my involvement in these issues began was when I realized, after living in Europe for a long time yet traveling constantly back and forth to my native Peru in Latin America, that Latin America, and Peru of course, were very poor. I hadn't quite realized that as a child. I thought that my Peruvian friends, my cousins, my interlocutors when I came to Peru were just as sophisticated, as clever, as skilled as my European friends when I was a child. It only dawned on me about the age of 17 that I actually came from a poor country. And then I wondered why, since the skills seemed to be the same, at least among elites. So I told myself there must be something that isn't obvious that accounts for the relative wealth of the European, the North American, the West versus the nations of the Third World. Since then I've been interested in finding out what that difference is. And since I couldn't pick it up in the books, I thought it had to do rather in observation, with getting involved in the grassroots. That's how I got involved in this. And about the age of 39 I had made enough money so as to survive, hopefully, for the rest of my life. I started getting more involved in these issues.

      INTERVIEWER: You're talking about grassroots, and we're now going to the town of Cajamarca [in Peru]. What message are you taking to Cajamarca?

      HERNANDO DE SOTO: The reason we were invited to Cajamarca, like to all the other places we've been in Peru, is because of the book that I wrote, which has become Peru's number one best seller of all time. We've sold about 300,000 copies. It's called The Mystery of Capital, and it tries to give an explanation for poverty at a time when everybody is somewhat disappointed in the fact that since the fall of the Berlin Wall we've entered another model which supposedly was going to bring prosperity, the market economy capitalism, and it hasn't. I happen to believe in the market economy, and I believe that capital is the source, or explains to a great degree the capacity to great additional wealth of the West. I've come up with an explanation that says with the figures that we are bringing out that, in fact, the poor have worked a lot; that we're a very enterprising lot; that what is missing is a legal system and an institutional framework that allows us to leverage wealth.

      The reason I'm going to Cajamarca now is because the universities, the association of Citizens Against Terrorism, and a few other organizations have invited us to talk about The Mystery of Capital. The curiosity stems from the fact that now, 12 years after the fall of the Berlin Wall, and 11 years after Peru adopted pro-market policies, their situation hasn't gotten that much better, and they want to know why. The Mystery of Capital offers an explanation. It says that the system per se works in the West, but that in our country, like in much of the Third World, it isn't functioning, not because it is not adaptable, but because we have missed some of the crucial elements that the Westerners had in the 18th and 19th century, like property rights, without with this system [the Third World] cannot function. I'm going there to explain to them that they shouldn't lose hope, that there are elements missing, but they require the active intervention of public opinion, and that's why I'm talking to them. And the need for politicians to overhaul the whole legal system so that they, too, can have property rights according to law over the assets they possess and be able to create capital.

      INTERVIEWER: Is Cajamarca like any other poor town in the rest of the world?

      HERNANDO DE SOTO: Cajamarca, yes, is a very typical Peruvian village, mainly of rural characteristics, probably the 20th in size of Peruvian urban conglomerations. So it's very small, and it's pretty representative of a lot of what we call Latin America -- that is to say, Latin America from Mexico down to Bolivia, that part of America where we are mostly a mixture between old Indian indigenous civilizations and the Europeans that migrated.

    • The First World vs. the Third World

      INTERVIEWER: Why should the First World care about the Third World?

      HERNANDO DE SOTO: I don't think the First World needs to care about the Third World. As a matter of fact, I generally believe that most of the problems that need to be resolved in the Third World and in former communist nations cannot be resolved from outside. In other words, I don't think there's much Westerners can do about it. Therefore, the fact that most First Worlders don't care about Third Worlders doesn't actually depress me, because I think the solutions are a local affair.

      Why would it be interesting for the First World to pay attention? Because we're a globalized economy. You depend very much on foreign oil. If you start working down to the crucial ingredient of your economy, you'll see that it's all interwoven. So in spite of the fact that you're not indispensable for the development of the Third World, the fact is that it is useful for us Third Worlders to be in close contact with you, and [to] be able to use mainly your technical advice when needed. But there is no reason that I can think of why I should try to convince a First Worlder to be interested in the Third World, other from the fact that we're all part of the same family.

      INTERVIEWER: You fly to a lot places. Where do you like to go? What sort of towns do you get more insight from?

      HERNANDO DE SOTO: I have found out as we've been called to work in different parts of the world that every place brings something new. I was very interested, for example, when we were contracted to start helping redesign Egyptian legislation regarding property rights for the poor. I always thought that traveling to a different culture would make a great difference. It makes a difference, but not a great difference, and that's also interesting. What's interesting is to find out that we Third Worlders have much more in common than we have in differences. The cultural differences that would make for an interesting program on the Discovery Channel or an article in National Geographic Magazine are cute, are interesting, but that's not where the basics are. The basics are that all of us Third Worlders have in common a very underdeveloped property rights system, a very underdeveloped legal apparatus, and that's what keeps you ahead of us. That's the part I look at. The fact that I'm able to find it in different cultures is first of all important to us because it indicates that there are basic principles that account for development, that there are general theories that one can bring together and that, therefore, there are solutions that one can devise on the basis of this information. But it's not the differences that make it interesting for me to go into any particular part of the Third World; it's the fact that we're so similar in spite of the fact that this might be manifested in different cultural forms.

    • Assessing the Success of Capitalism

      INTERVIEWER: You make a pretty amazing and sweeping statement: The moment of capitalism's greatest triumph is the moment of its greatest crisis. Why?

      HERNANDO DE SOTO: The reason why this is not capitalism's best moment. I wrote the book two years ago, before it actually got published and started being circulated in Spanish, because it hasn't really worked for the majority of the people in former communist nations and developing countries. We people from the Third World and from former communist nations are five-sixths of the world's population. There are about six billion human beings in total, and five billion are in developing and former communist nations. At the time of the fall of the Berlin Wall, we all decided to take the capitalist route. Right now it's quite obvious that about 80 percent of the people in developing and former communist nations have not benefited from the system. The fact that there's no alternative around for the moment doesn't mean that one cannot be created. It's obvious that people are trying to find other ways.

      So the test is there. The test is, can the system actually work for the majority of the people? So this is capitalism's testing moment. This has happened before. It's not that this hasn't occurred before. In Latin America, we found that in at least five opportunities, all our countries put together since the 1820s, when we found our freedom from Spain, [have] actually tried to follow the U.S. model or the Western model. We've privatized railways and we have lowered our tariffs to zero and we've opened ourselves up to foreign investment, and five times we've had to go back because it made sense for a very small [group] among of people at the top of the pyramid, but for the majority it didn't work.

      So our thesis is, basically, the reason it doesn't work for the majority is because the system can only work with property rights. Markets and capitalism are about trading property rights. It's about building capital or loans on property rights. What we've forgotten, because we've never examined the poor, we've sort of thought that the poor were a cultural problem, is that the poor don't have property rights. They have things, but not the rights.

      And when you don't have the rights, you don't have a piece of paper with which to go to market. You don't have a legal system that undergirds that piece of paper and allows it to circulate in the market. The question now is whether we're going to follow the Western route -- let's say that capitalism started 500 years ago -- and go through one revolution after another, tremendous wars, social wars and then finally, four centuries, five centuries later the system comes together, or we're going to be able to learn from you and get it over with in the next five, 10 years.

      But that requires for capitalism to understand that looking at the poor is not the task of the First Lady of the republic. It's the task of the president. It's not a question of just doing macroeconomic stability, getting your accounts right, stabilizing money. It's about finding out why the poor can't use the legal system and revamping it. It's major surgery. That's why we're at a time where capitalism is going to be tested. Will it be able to cater to the poor, or will it continually be seen in places like Latin America as something that essentially relates to libertarian clubs and to people who are wealthy, in many cases who don't necessarily believe in capitalism. They just believe in helping their own wealth. Or are we going to make it inclusive and start breaking the monopoly of the left on the poor and showing that the system can be geared to them as well?

      INTERVIEWER: You have alluded to it a bit, but I want to know if capitalism is really in trouble.

      HERNANDO DE SOTO: Capitalism of course is in trouble, because as usual it is only catching on among the top 20, 10 percent of the population of Latin American countries that have got their property rights paperized in a way that they can enter the market. It's in trouble in the sense that it isn't working for the majority. I insist that capitalism doesn't work without property rights, so it only works among the Westernized elites of our country. You may have noticed that in all developing countries and even former communist nations there are always some people who have been to Harvard, that have taught at Yale, that are in touch. Elites all throughout these hundreds of years have always been in touch. Kings and queens from different countries have always been in touch. So the fact that the system works for an elite doesn't mean it's successful. We've always taken it as successful. We've always actually thought that the poor didn't [appear] for cultural reasons. We've always thought that the poor needed to be educated. That's why they didn't come in. And what The Mystery of Capital tries to tell you is that there are huge legal obstacles for the poor to come in. It isn't that they culturally don't want to come in. They're continually proving that they do want to come in because they're continually migrating to countries like the United States and Canada and western Europe, so they do want to come in. The problem in our countries, in Latin America, is we're not letting them in, and it's because we haven't gone around to finding out what is the cost of getting in it. We're starting to find out it's a very high cost.

      INTERVIEWER: The elites are to blame?

      HERNANDO DE SOTO: I always thought, at least in the case of Latin America, that elites have not accomplished their role. At the end, to create a revolution where the legal system and the market benefits everybody is a heroic task. We realize this the more we look into history and see what the foreign elites did back at the time, for example, of the American independence. They had a vision. And they had the courage to rebel against a status quo. What happens in many Latin American countries and Third World countries is that the elites don't do this, and [they] try to explain the economic backwardness of a large amount of the population -- 80, 90 percent of the country -- as a cultural problem. "We need education," [they say,] instead of seeing it as essentially a problem of [invisible] obstacles that are put in their way ... and they're so set in their ways of thinking that the lower classes are inferior that they're actually acting a lot more like Russian elites in 1914, 1917, than American elites back at the end of the 18th century and beginning of the 19th century, who were open-minded. Many times, of course, [impoverished] Latin Americans become confused by looking at them, because they're able to talk about Hayek and they're able to talk about Milton Friedman. But it's not that they really believe in them; it's sort of like a shield. It's a shield they use. They use libertarianism and conservative ideas the same way communists used to use socialism to hide their real intentions. You have to always be careful about that, because undertaking a revolution in terms of liberty is a very revolutionary task. It requires lots of guts, and it requires going against a status quo. Nobody who really gets along with the status quo can be absolutely trusted to change these countries around from their backwardness to a prosperous society.

      INTERVIEWER: We've been told for 50 years now that free markets bring freedom. Do you believe that?

      HERNANDO DE SOTO: I believe that markets do help absolutely to bring freedom. I don't think that's enough, but I certainly do think that helps, because at the end good markets work with information. You need information, and that necessarily brings pressures on the political system to make people accountable, to provide the right kind of information, to provide the right kind of enforcement. They feed on each other. But it is also important to emphasize democracy as such. I am not necessarily a great friend of some Asian systems which went towards free markets but disregarded the democratic side. That may have worked in certain cultural circumstances and may not work in others. In the case of Latin America, where there is such a cult to the idea of democracy, you also have to add an effort in terms of political freedoms as well as economic freedoms.

      INTERVIEWER: There has been a battle of ideas that that the world has undertaken between communism and capitalism. What's next? Where are we swinging?

      HERNANDO DE SOTO: Capitalism definitely won the battle against communism, but a lot of the main ideas or concerns behind the early communists and socialists are still around. They had to do with an equality. They had to do with inclusiveness. They had to do with fairness. These ideas will get back into the game, and I think it depends very much on the elite in developing countries to make sure that these are also incorporated into the capitalist or free-market argumentation. It's not enough to say that these are the leftist kind of things, human rights kind of things. We've got to bring them in. If we don't bring them in, the traditional leftist will come back. The traditional Latin American leftist is very different from the American liberal who respects democracy. I'm thinking about Latin American leftists who have no problem of carrying out reforms with no democracy whatsoever. If we don't incorporate all of these humanitarian values, all these humanistic values, all of these democratic principles within the capitalist agenda, it'll be born again in some other form that may not be the traditional communist one but will bring with it the same, and many, dangers that communism came with, which is a total disregard for the basic principles of economics that produce wealth and that at the end up solving material problems.

      INTERVIEWER: It seems that globalization is the trend. Won't that make it worse for poor people?

      HERNANDO DE SOTO: No, globalization is where we've been heading for ages. Look at me with the beard and no hair on my head. I'm a product of globalization. Latin American Indians, Peruvian Indians aren't bald, and they can't grow hair on their face. I am a product of globalization. I am the result of Spanish migrants having come to Latin America and probably mixed with some Indians, but not enough so as I can't grow my beard. So globalization has been going on. What we're finding out now is what the early economists, the classical economists told us, from Adam Smith to Marx, which is that the more we learn to divide work among ourselves, the more productive we get. The idea was not only to go for larger markets in larger cities, but go for larger national markets and now larger international markets. And it's obvious that these are going to bring prosperity.

      What we've just got to make sure of is that globalization also includes the underclasses. They have a lot to gain from it as well. But if I go with you through the obstacles that somebody that's poor has to go through to get an export license, or an import license, or be able to put together the kind of paper that'll allow you to globalize, you'll find out that it's a pretty exclusive club, those who can globalize. It's a club made of those people and places like where I come from, Lima, that know how to deal with the law firms, that know how to lobby for legislation that helps some, but doesn't help somebody else. In other words, a system of capitalism for only a few, because there's a legal apartheid that blocks the majority from coming in. Everybody wants to globalize.

      And if somebody tells me no, the poor of Peru don't want to be globalized, the logical question that comes is then why have a million of them traveled to the United States over the last 12 years, not to mention those who have migrated to Mexico or migrated to Spain or other parts in Europe? The reason is because they want to globalize.

      We are now in Cajamarca, and you have seen many people that still keep their old traditional Indian costumes and their ponchos and their big hats. Here we are really in rural bliss in Peru. But I'm sure that when you've been to Lima -- not only Lima but most of the towns of Peru -- you don't see that anymore. People have got sneakers, and they have trainers, and they've got Nikes and other things. They're already globalizing. There is no cultural resistance to getting in on the same wavelength. The problem is that they can't globalize in economic terms. They're not allowed to get into the international market except for touristic projects and for artisanry.

    • Property Law and Capitalism

      INTERVIEWER: You are trying to do something unusual, which is to get a message out to the people. What exactly are you trying to achieve by holding these symposiums?

      HERNANDO DE SOTO: There's a message in my book which is the result of the research and the conclusions my colleagues and I came to as a result of very practical empirical experience in many developing countries throughout the world. The general idea is that there doesn't seem to be a better system in the world than the capitalist system, and it's a very subtle one, too. It's much more sophisticated than what people think. What it has is the ability to pick up the value of people's work. It has the ability to be put on paper, to accumulate, to represent value, and to use it to further additional production.

      What we think is that the reason it isn't working in the developing world and the reason it isn't working in former communist nations is not because people are anticapitalist or people are antientrepreneurial, but that the infrastructure of laws that make the carrying of capital possible are simply not in place.

      The message here is don't despair; it's worked for the West; it can work for us. We know nothing better. But it's going to involve radical changes, and you being entrepreneurs are going to be the first ones interested in making sure that these changes occur, and they have to do with the legal system. Here's what we have to say about how the existing legal system in the Third World conspires against you, how it doesn't allow you to come in. Be conscious that that's the source of the problems, that it's not the capitalist system, it's not the free markets system, it's not your capacity as an entrepreneur; it's essentially a legal system that doesn't allow you to accumulate capital, to organize value, and to be able to transfer it.

      INTERVIEWER: So the system is rigged against poor people?

      HERNANDO DE SOTO: What happens is that over the last 11, 12 years, the recipes available in the international market were at the macroeconomic level. Look, free-market entrepreneurialism is possible everywhere. It's a question of having stable money. It's a question of having fiscal equilibrium -- government doesn't spend more than what it gets. And it's a question of making sure that the government isn't the manager of enterprise, so you have to privatize things.

      That and a few other adjustments called "structural adjustment." But what we're seeing now is that that's important, but it certainly isn't enough. It isn't even the beginning of the story. Of course you need stable money, and of course to have stable money you need a government that doesn't overspend, and of course you also need a government that isn't involved in enterprise. But you also need, more important than other things, a rule of law that makes a market economy, the interdependence between millions of producers, possible through good contracts, through good administration of justice and through representations in paper that are capable of capturing value, so as to use that value to further additional production, i.e. capital.

      The general idea here is that we haven't properly yet understood the capitalist system. It's much more profound, it's much more subtle than we all expected, and it has only partly to do with macroeconomic equilibrium. Most of it has to do with the rule of law, putting in place a system that allows all of us to prosper.

      INTERVIEWER: And so far the system hasn't prospered. Why? Why doesn't it work?

      HERNANDO DE SOTO: The system hasn't prospered so far because we've dedicated ourselves only to doing the macroeconomic side of the formula: stable money, fiscal equilibrium, and privatization. The majority of the capitalist system the way I understand it is essentially a legal property system. And in most developing countries and former communist nations you do not have a legal property system that can provide a framework for the majority of entrepreneurs. I'm talking about 80 to 90 percent of all the entrepreneurs that exist. As a result of it, you cannot produce wealth.

      One of the things that always scares me is that secret little argument, not even intellectual argument, that little prejudice that is not only in the minds of Westerners, but is also in the minds of elites of developing countries and people that take decisions, that the reason the capitalist system doesn't work is because culturally we're not ready for it, whatever the word "culture" means. It may even have racist implications. What we're saying is well, maybe it's true. Maybe the capitalist system does work much better with Protestants and whites. Maybe. But before that, let's take away all these enormous legal obstacles that poor people have to face. Let's take away all the ignorance around law and let's put good law into place and then we'll just see whether it works or it doesn't. We're absolutely convinced it does work because people are actively [conducting] enterprise all over the world. The thing is, they can't make long-term contracts, and because they can't make contracts, they can't obtain credit, and they have no way of constituting a company that can issue shares, therefore they have nothing to sell against investment. That's the reason it doesn't work. I don't think it's cultural at all.

      INTERVIEWER: So education isn't going to solve anybody's problem?

      HERNANDO DE SOTO: Education is important. Education is important; health is important; religion, beliefs are important; a civil society is important; a good democratic system is important. But there are many developing countries where you do have some kind of a democratic system. There are many of these countries where you've got education. You could even say that in terms of the indigenous needs of the Peruvian nation we've over-invested in education. Why? Because most of the people that we've educated have emigrated to the United States.

      So I'm not saying that education is not important, but if you don't have a capital infrastructure that is capable of creating job opportunities and entrepreneurial opportunities as a first source, all that education doesn't help. What we're saying is we've tried education, and it's good that we continue. Health is also extremely impor

A Satirical Look at Homophobia in Liberia

All Liberian anti-gay activists have decided to join forces under a single umbrella to help stamp out homosexuality in the small west African nation. The group (PEWMAH) Pedophiles, Embezzlers, Warlords, Molesters, Adulterers Against Homosexuals claims the mantle of covering about 90 percent of the Liberian Population.

According to the group spokesman, Bigboy Gorbachop, "we represent the national character and identity of Liberia and we therefore oppose the legalization of this type of satanic vice which can destroy our proud national heritage."

He further went on to say "we acknowledge we are all sinners; however, homosexuality, is against the very nature of our shared Liberian and African heritage." The group says there is no reason to hold national meetings or conventions as 9 out of every 10 Liberians are members of one or more of its sub groups. "Anywhere more than 3 people are seen, dah meeting!" said the spokesman. 

However, not all anti-homosexual groups are happy about the naming of this umbrella group. The Group Sex Association (GSA) of Liberia, the Closeted Legislative Caucus (CLC), as well as the Greater Monrovia Chapter of Fornicators Anonymous (FA), the Hidden Homosexuals of Liberia(HHL),and Parishioners for Promiscuity (PfP) have all put out statements protesting not being recognized by this umbrella group.

The Godma and Godpa Association of Liberia, currently holding their national convention in Bongquenemah,  could not be reached for comment.

The Closeted Legislative Causes, which is comprised of closeted members of the legislature stressed they are vehemently opposed to the legalization of gay marriage in Liberia. Their spokesman said, off the record, "if gay marriage is legalized in Liberia, some of our closeted partners will demand marriage proposals from us; we prefer to continue to act in a manner that is culturally acceptable for Liberia and Africa as a whole."

For its part, the Group Sex Association spokesman, Mr. Paigar Jukay, said even though his group is not named in the initials of the umbrella group, he is pleased that Liberians of all stripes are waking up to fight this terrible lifestyle. He continued that with the addition of these four groups they will achieve nearly 98% of the population of Liberia. He also reminded this reporter, that many Liberians are actually members of multiple groups named here.

Why Rodney Sieh’s Imprisonment is Unconstitutional

Why Rodney Sieh’s imprisonment is unconstitutional and what can be done to get us out of this mess1.
by Ambrose W. Wortorson, Esq.2 

 

INTRODUCTION
Ambrose W. Wotorson, Esq/It has been clear for about one month now, that Rodney Sieh’s jailing is unconstitutional. However, greater care should have been taken to explain why neither the executive nor the judicial branch was able to do much, if anything, to get him released. Justice Minister Tah recently took to the airwaves to explain the judicial process, but that was after a deep skepticism had already gone viral. This public relations disaster – and disaster it is – has revealed a tendency of licensed professionals and political actors to talk over and past each other, much to the confusion of the people.

FUNDAMENTAL RIGHTS
Chapter III of Liberia’s well-written 1984 Constitution concerns fundamental rights. Fundamental rights are those basic rights that are so important that there must be a higher purpose or a very special reason for curtailing them. Under Article 11 of Chapter III, "…all persons are equal before the law and are therefore entitled to the equal protection of the law". This means that the law cannot treat one set of people differently than another set of people without some very special reason for doing so. Article 15 of Chapter III explains, "…every person shall have the right to freedom of expression." That too, is a fundamental right. Section "b" of Article 15 specifically identifies "…freedom…of the press" as yet another fundamental right that cannot be curtailed without some very special reason. Article 20(a) of Chapter III ensures that,"…no person shall be deprived of…liberty…except as the out come of a hearing judgment…in accordance with due process of law. In other words, nobody in Liberia is allowed to lose his or her liberty without prior "notice". Article 20(a) of Chapter III also teaches that nobody is allowed to lose their liberty without being given an opportunity to argue against their loss of liberty. Finally, Article 20 (b) of Chapter III identifies an "…easy, expeditious and inexpensive appeal" from judgment as yet another "fundamental right".

ENFORCING JUDGMENT DEBTS
But, these fundamental rights are now clashing with a little-known enforcement of judgment statute from 1972, and that has Rodney Sieh behind bars today. The statute, Chapter 44 of the Liberian civil procedure code, specifically states that nobody should be jailed for failure to pay a debt, except in very limited exceptions. (Section 44.1). One of the exceptions concerns a failure to pay damages where there is an "injury to reputation". (Section 44.71(2)(e)).

Notably, the statue allows installment payments, deferred payments and even mandates that "professional tools and implements" are to be exempt from money judgments. (Section 44.27). So, the statute contains various "outs" to allow judgment debtors to continue making a living whilst paying off their debts. Clearly, this is not a statute that jails everybody who fails or refuses to pay a judgment debt. The statue expressly forbids that.

INJURY TO REPUTATION AND THE CONSTITUTION
Section 44.71(2)(e) has elevated a particular civil wrong -- injury to reputation -- to the level of a jailable offense, without any obvious or special reason for doing so. Indeed, a person who fails to pay a judgment after vaguely causing an "injury" to another person’s "reputation" is going straight to jail. But, a person who is found guilty after a civil trial of any other intentional torts can freely ignore the judgment without any fear of being jailed. That makes no sense and there is no rational basis for creating such a distinction in the law. Since journalists are the most likely to be accused of injuring other people’s reputations, Section 44.71(2)(e) may disproportionately affect them.

Arguably, Section 44.71(2)(e) has created a special class of civil wrongdoers -- mostly journalists -- who are more likely than other civil wrongdoers to be jailed. The distinction that Section 44.71(2)(e) has created violates Article 11 of Chapter III that mandates that, "…all persons are equal before the law and are therefore entitled to the equal protection of the law. " Section 44.71(2)(e) specifically singles out certain types of civil wrongdoers for harsher penalties than other civil wrongdoers. Under this formulation, not all civil wrongdoers are equal before the law.

FREEDOM OF THE PRESS
Section 44.71(2)(e) also appears to violate "freedom of the press", another fundamental right enumerated in the 1984 Constitution. Indeed, Rodney Sieh’s liberty was taken away when he could not or would not pay civil damages after a jury comprised of Liberian men and women found that his newspaper had crossed the line in two stories it carried in November 2009 and in January 2010. Section 44.71(2)(e) does not contain any guarantee that a party who has allegedly injured another person’s reputation will have an opportunity to contest his or her imprisonment before actually "going inside" if he or she can’t pay the judgment. This violates the fundamental right that nobody is allowed to lose their liberty without being given an opportunity to argue against their loss of liberty. No justification has ever been given for this.

INEXPENSIVE APPEAL
Under Section 51.8 of the civil procedure code, Rodney Sieh’s trial judge was supposed to "fix" his appeal bond. It is discretionary, and the civil procedure code does not appear to have any formula for fixing an appeal bond. Rodney Sieh recently wrote in a New York Times Op-Ed piece, that his appeal bond was a whopping $2.2 million dollars. That is an outrageous, and absurd sum, if true. If true, that absurd appeal bond vitiated Sieh's right to an appeal, because he could not afford it. It violated Article 20 (b) of Chapter III that identified an "…easy, expeditious and inexpensive appeal" as a fundamental right.

THE MECHANICS OF GETTING RODNEY RELEASED
Rodney’s Sieh’s imprisonment arguably violates the fundamental rights of equal protection, freedom of the press, due process and inexpensive appeals. Rodney Sieh’s lawyers should consider filing a petition, styled as a combined writ of mandamus, injunction, habeas corpus and certiorari, challenging the constitutionality of Section 44.71(2)(e). The petition could be filed with the Civil Law Court for the Sixth Judicial Circuit, Montserrado County. That lower court Judge will need to address the issues presented in the petition. The lower court may certify that Rodney’s Sieh’s new claims raise constitutional issues, and may transmit the matter directly to the Supreme Court for resolution, if it cannot resolve those matters itself. While the executive branch of the government is not a party to the underlying libel case that resulted in Rodney Sieh’s losing a civil jury trial, the Court will formally notify the Ministry of Justice that the constitutionality of a statute is being challenged.

Once notified, the executive branch should promptly file a Motion to Intervene. But the Motion to Intervene should be made only so that the government can go on the record as taking no position, or more radically, joining the petition. The statute, as written, is indefensible, and it appears to violate some cherished fundamental rights. Care must be taken however, to explain that the executive branch can oppose such constitutional challenges to existing statutes, but that it is not doing so now because the legislature may need to repeal and/or to update portions of Section 44.71(2). The executive branch should not be shy in stating that jailing folks on account of their judgment debts is repugnant. That would not only be fair, but it would also answer the clamor that "the government does something". In this instance, by taking no position, and doing nothing, the executive branch will in effect, be doing something. Alternatively, this administration can also show its alleged democratic stripes and join Sieh’s petition.

CONCLUSION
This case can still be settled. Settling does not mean surrendering. It means an agreement by both sides to cease-fire. However, a settlement would not absolve the legislature of the task of reviewing the judgment enforcement statute, and repealing provisions that put folks in jail simply because they don’t have money to pay judgment debts. Finally, the one good that has come out of this case, is that for the first time in a long while, non-lawyers are now scouring over the statutes, struggling to understand and interpret them, and in some instances calling for their repeal. Others have begun to review a relatively unknown, but very impressive body of Liberian Supreme Court case law. That is good. Just like the Koran is not for Imams alone, and the Bible is not for Pastors alone, the law is not for lawyers alone. It is for the people.

_______________________________________

1 These are merely Mr. Wotorson’s thoughts and opinions, and they do not constitute legal advice, since he is only admitted to practice law in the United States, and not yet in Liberia.

2 Manhattanville College, B.A. Political Science (Honors), 1988. University of Miami School of Law, J.D., 1992. Admitted, New York, 1993, Second Department; United States District Court Southern District of New York, 1995; United States District Court, Eastern District of New York, 1998, United States District Court, Northern District of New York, 2000; United States Court of Appeals, Second Circuit, 2002.

The Imprisonment of Rodney Sieh for 5000 years, highlights Liberia's Ugly History of Indentured Servitude

This particular law was designed to force native people into indentured servitude when they could not pay their debts/fines. A wealthy landowner would "stand their bond" and they would have to "work off their debt" to the landowner more often than not by working the farms / tapping rubber.

This is why there are specific types of "offenses" like adultery, where one native man would accuse another of "following his woman" to the Justice of the Peace Court. The JP would then fine the accused say $50, which he could not pay. The JP would then tell some wealthy land owner he has x number of people in "jail" for various debt offenses, and the land owner would pay a percentage of the bond, and cart them off to work for him.

This is why the law even goes as far as setting the monthly debt exhaustion rate at $25/month UNTIL the debt is exhausted. It makes absolutely no sense to imprison someone who cannot pay debt, thereby DEPRIVING THEM of the ability to EARN INCOME to pay the debt, while at the same time absolving them of their debt at a predetermined rate. Except, of course, if the intent is to transfer their debt for cheap labor.

The  Law States as Follows:

§ 44.1. Imprisonment for nonpayment of money judgments.
A person shall not be arrested or imprisoned for disobedience of any money judgment or order requiring the payment of money except for those money judgments enforceable by punishment for contempt under section 44.71(3) or by imprisonment under section 44.71(2) if execution is not satisfied

2. Judgments enforceable by imprisonment if execution not satisfied. Judgments in any of the following actions shall be enforceable by execution, but if the judgment debtor cannot or will not pay the full amount of the judgment together with interest and costs, the sheriff shall arrest him and the court shall order him imprisoned for a period sufficiently long to liquidate the full amount of the judgment, interest, and costs at the rate of twenty-five dollars per month:

(a) Adultery;
(b) Seduction of wife or child;
(c) Illegally taking away or harboring a wife or child or ward under twenty-one years of age;
(d) Enticing an incompetent away from his legally appointed trustee or guardian; or
(e) Injury to the reputation when the words spoken or written are actionable per se.

Article 12 of the Constitution of Liberia States

No person shall be held in slavery or forced labor within the Republic, nor shall any citizen of Liberia nor any person resident therein deal in slaves or subject any other person to forced labor, debt bondage or peonage; but labor reasonably required in consequence of a court sentence or order conforming to acceptable labor standards, service in the military, work or service which forms part of normal civil obligations or service exacted in cases of emergency or calamity threatening the life or well-being of the community shall not be deemed forced labor.

It is obvious that the Statute above is in conflict with the Constitution.

What exactly is the State's interest in imprisoning a person, and burdening the taxpayer with the cost of that imprisonment, for failure to satisfy a civil judgment? 
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In Liberia: It is time for The President and Musa Bility to Go

by Omar Fahnbulleh

I have been thinking about this, for a while, and have mentioned it to a couple of people.  It is time for our President Madam Sirleaf to GO.  Madam yesterday undermined her Justice Ministry’s indictment in the LAA case.  The Liberian Justice Ministry issued an indictment of several Liberians, some serving in the Government of Liberia, but our President came out and issued a vote of confidence for one of the major players in the Indictment, Mr. Musa Bility.  Our president instead of letting Justice take its course decided to step on our Constitution and insert herself into the case and undermine the Justice Ministry by interfering with the legal proceeding. 

Why would Madam Cockrum or Mr. Johnson want to return to Liberia to face trial when the President has already vouched for one of the defendants?

Who is Musa Bility?

To know who Mr. Bility is, one only has to read the news out of Liberia.  This calls into serious question the judgment of the President, and her anti-corruption claims.

In July 2012,

State prosecutors alleged that SCRIMEX Chief Executive Officer Musa Bility defrauded the government of U$350,000, adding that their evidence against his company was overwhelming for indictment. http://bit.ly/1eShFOI

In June 2013,

The Confederation of African Football, instituted a six month ban against Musa Bility, in his role as President of the Liberian Football Association, for “violating statutes relating to the use of confidential documents.” http://bit.ly/13S4Ujc

In June 2013, the Tax Court of Liberia ordered Mr. Bility’s assets seized and sold.

The action of seizure and sale of assets as well as closure of the premises of his companies, according to the writ of execution, stemmed from a September 7, 2012 judgment which compelled Bility to pay US$165,000 representing the amount he owes the government of Liberia in taxes  http://bit.ly/16jv5l5

So even though State Prosecutors have, at least once, presented a successful prosecution of Mr. Bility for defrauding the government of Liberia, the President of Liberia, announces, after a second indictment of Mr. Bility, that she has complete confidence in his integrity.

For the President to say she has confidence in the integrity of Mr. Bility, is at the same time saying she has no confidence in the integrity of the Ministry of Justice.  But it begs the larger question: where in the world, does a President, whose government and country is rife with corruption, step in to serve as a personal character witness for a person indicted for corruption, even before the trial has even begun.
 
This is the second time, Madam Sirleaf has done this.  She visited Mr. Guyde Bryant when he was under a major indictment for corruption.  Madam Sirleaf has neither the desire, nor the intention fight corruption.  It was never part of her agenda and it will never be. 

Our President, every step of the way, has undermined the fight for corruption in Liberia.  She appointed Mr. Francis Cabah back into her Government when he was fired from Social Security for Corruption.  I am here scratching my damn head, in fact, my head hurts.  In the recent tape released by Madam Cockrum we heard the Defense Minister indict the entire government of Liberia when he stated that there are folks in the Government that have stolen but are still allowed to write checks for the Government.  We have yet to hear from our Elected Leaders.

Again I will say its best Madam Sirleaf leaves office now, considering we have UNMIL in Liberia for another four years.  If she leaves now, this will give her replacement a chance while we have UNMIL to do what is right and put in place the programs to move Liberia forward.  Is there anyone, at this moment in time, who believes if Madam Sirleaf stays in power and we stay on our current trajectory, when her term ends and UNMIL leaves we will have Peace?

Heroes Cannot Save Liberia

The following is a rejoinder to Samuel Tweah written 06/25/2007

The Editor 

Samuel D. Tweah, wrote:

"Challenges notwithstanding, the larger vision was that the candidacy of George Manneh Weah, who had earned his wealth outside that culture and demonstrated patriotism and love of country, would catalyze a critical mass of Liberians vehemently opposed to public greed; abuse of power; and violence as a means to self-enrichment. If for any reason the abhorrent forces of stasis were to take over that movement, its liberating mandate, whether or not with George Weah presiding, would have ended even before it began."

Unfortunately Mr. Tweah, like all who have come before him, advocating for this "magical" social transformation, still does not understand how to change Liberia.  Opposition to public greed, and abuse of power are not the domain of any single entity. 

The problem in Liberia is THE SYSTEM.  Everyone who has come before, has come to utilize THE SAME SYSTEM, while pushing one new hero or another!

Being mindful that one definition of insanity is "doing the same thing over and over, and expecting different results each time," it is time for Liberians to wake up and step away from the insanity that is the Liberian Government.

Liberian leaders, political aspirants, opposition leaders have all longed for, and spoken passionately of, social transformation of the "masses."  I submit there can be no social transformation without a complete technical overhaul or re-invention of the government.

The success of any social transformation is due to the capacity of the government to provide a space and ensure opportunities for all its citizens.  All of this capability can only be possible if the government has the ability to manage its fiscal resources in a manner that is transparent, and accountable, and to the benefit of its citizens.

The government cannot create equal opportunities in education in a vacuum.  The government cannot create equal opportunities in health care in a vacuum.  These programs cost money, and when the government's money is mismanaged, those opportunities do not exist.

The latest UN Panel of Experts Report tells us LPRC has under collected taxes to the tune of 7.5 million USD.  The Report also tells of no-bid (opportunity reducing) contracts being awarded.  The Report further lists another contract for oil that has gone un-reported.  Who is to blame for this mismanagement? The President of Liberia, no one else.  The Buck Stops at the President's desk!

The law which set up LPRC requires LPRC has 3 deputy managing directors.  To date, the President of Liberia has not appointed any deputy managing directors of LPRC.  The President is required to follow the law.  She cannot ignore the law, because she does not agree with the law.  

If the President disagrees with the management structure of LPRC, as prescribed by law, then the President must seek to have the law changed.  She cannot shirk from her solemn oath to "faithfully execute the laws" of Liberia, simply because she disagrees with one law or the other.  She does not have that choice!!!  Appropriate advice from the Minister of Justice should have made this clear to the President.  But then again, the Minister is busy finding caps to fit whatever head she chooses.

But LPRC represents only a microcosm of what has always been wrong with governance in Liberia. I have always maintained Liberia is in the predicament it finds itself in, because Liberian Presidents have selectively enforced the very laws they swore to uphold.  They have used that selective enforcement of the laws to persecute their enemies and/or reward their friends.  The same selective enforcement is going on in Liberia today.

Bank robber, Willie Sutton, when asked why he robbed banks gave a concise and clear answer: “Because that is where the money is!”  The same is true of the Liberian Government: that's where the money is.

If Liberia is going to be transformed, it will not be transformed by the cult like worship of Ellen Johnson-Sirleaf!  Madame President don't be fooled, every Liberian president before you has had a cult worshipping him.  Every one of them!  Everyone one of them before you has failed because they tried to manage the same broken system!  If you decide to do the same thing, please see the above definition of insanity.

If Liberia is going to be transformed, it will not be transformed by the cult like worship of a George Weah or any other personality.

Liberia must be transformed, it will be a by leadership which understands graft and corruption are crimes of opportunity.  That opportunity exists because the government of Liberia is technically broken and cannot be repaired by the sheer will of any personality.  The government of Liberia needs a complete audit of all the processes in EVERY MINISTRY and agency to identify those processes which present opportunities for graft and corrupt activities. 

Once this audit is completed, existing processes can be re-engineered or new processes can be put in place, which are more immune to the practices of the past.  Until this is done, it does not matter who is president of Liberia, the government will remain the target of the Willie Suttons of Liberia, who have rightly figured out "That's where the money is!"  

George K Fahnbulleh,
gkfahnbulleh@lakepiso.com
Mesa, AZ

Emanuel Shaw: "His main occupation was stealing."

"His Main Occupation was Stealing"

Culled from the South Africa Mail & Guardian Newspaper, Dec 19 1997

US court documents show how Emanuel Shaw II privatised Liberia's oil industry to benefit himself, report Mungo Soggot and James Butty


The man charged with reshaping South Africa's oil industry was accused in a United States court of masterminding a fraudulent scheme to pocket the profits from Liberia's petrol sales while serving as the country's finance minister.

Court papers in the possession of the Mail & Guardian offer an astonishing expos of one of the most ambitious money-making schemes pulled off by Emanuel Shaw II while in power under the Liberian dictator Samuel Doe.

The papers also include several blanket indictments of Shaw such as: "It was common knowledge in Liberia, and internationally as well, that his [Shaw's] main occupation while holding the office of Minister of Finance was to steal as much money as possible from the government and people of Liberia."

Shaw is now earning at least R3-million a year advising South Africa's state oil company on its restructuring and privatisation. His controversial appointment by state oil chief Don Mkhwanazi was the subject of a three-day commission of inquiry this week at the Department of Minerals and Energy. The findings are expected to be released next week.

Shaw has also worked for listed fuel company Engen whose chief, Rob Angel, was quoted last week saying Shaw was a "very,very bright man".

Shaw, one of Doe's closest confidants, fled Liberia ahead of the dictator's downfall in 1990, but before he did so he allegedly masterminded an elaborate ploy to rob the impoverished country of about $27-million - in effect the remaining assets the country had abroad.

The court papers establish that Shaw set up a new national oil company in which he was a major shareholder, resigned as finance minister, and then wrote a letter as if he were still finance minister obligating the government to pay his oil company millions of dollars.

The plaintiff in the case - which was heard in New York in 1991 - was the Liberian National Petroleum Company (LNPC), which was set up by Shaw in January 1989 as the "sole and exclusive supplier of petroleum products" to the Liberian market. Shaw had a 60% stake in the company. The US court was told that, after resigning before Doe's downfall, Shaw wrote a letter to the LNPC as if he were still finance minister, in which he confessed that the government owed the millions to the LNPC.

"In effect Mr Shaw, acting as finance minister, negotiated and signed the two guarantee agreements relied on by plaintiff in order to assure his own company payment of $20-million," the US court was told by a representative of the interim government of Liberia, which took over after Doe was executed. The interim government was the defendant in the case.

Shaw's letter persuaded the British High Court - presumably unaware that Shaw and his accomplices were actually the plaintiffs - to order the government of Liberia to pay up about $8,4-million in August 1990. With Liberia crumbling, no defence was mounted by the country's government. The British court attached a Liberian Boeing 707 parked at Stansted airport as security and issued an injunction over other Liberian assets.

Shaw obtained an injunction on more Liberian assets in a New York court in 1990 and then tried to pull off the same trick by suing for $19-million in a US district court in New York.

But by then the interim Liberian government was ready to defend itself and Judge David Edelstein of the US District Court of Southern New York dismissed the case. The lifting of the injunction allowed the Liberian interim government to tap about $16-million that had been frozen.

One of the interim government's key weapons was a detailed affidavit by Liberian justice minister Philip Banks III, which guided the court through Shaw's ingenious scheme.

Banks, who ran the government's case, said that in 1986 Shaw, Liberia's justice minister Jenkins Scott and several other private individuals started plotting to acquire control over the sale of all petroleum products in Liberia. Their plan came to fruition in January 1989 with the creation of the LNPC, which immediately triggered a fuel price rise.

"Although the monopoly power exercised by LNPC inured directly to the benefit of Minister Shaw, who held a substantial ownership interest in LNPC, it came at the direct expense of the Liberian government and people. As soon as LNPC obtained control over the supply of petroleum products to Liberia, the price of those products increased sharply."

Banks said that the exclusive contract between LNPC and Liberia's existing national petrol company - the Liberian Petroleum Refining Company - was condemned by the judiciary committee of Liberia's House of Representatives, which said the agreement "brings in no new investment and will only raise the cost of products for LPRC". The house declared the contract null and void, Banks said.

Banks explained how Shaw secured himself a 60% stake in the new oil company through a company called Synergy Resources and also siphoned off all the lease payments LNPC was supposed to make to LRPC under the January 1989 agreement. Those payments were made to a company called Global Enterprises, which was owned and managed by Shaw.

Shaw was the LNPC's chief executive and later appointed as president his trusted associate Mark Wolman. Wolman, a South African, ran a private oil company called Tiger Oil, which was a key sanctions- buster. Shaw acted as a "consultant" for Tiger when he arranged for it an exclusive contract to supply petroleum products to the LPRC in 1987 in a similar scheme to the one he pulled off with the LNPC.

Wolman was brutally murdered in Cape Town last year in what appeared to be an execution by a drug gang. Shaw's passport was found in Wolman's briefcase.

The papers, which suggest Doe was in on the scam, explain in detail how Shaw fraudulently wrote a letter in his capacity as finance minister to help LNPC obtain its money. "In short, with the country burning around them, Shaw and Scott decided to plunder the government treasury one more time."

Banks said Shaw signed two guarantees obligating the government to pay at least $20-million, while Scott wrote a letter waiving the government's immunity from legal attack abroad. He said Shaw wrote his letter as if he were still finance minister on July 18 1990 even though he had resigned in June 1989.

Scott was fired by Doe on June 27 1990, but wrote his letter waiving sovereign immunity on July 8 1990. "Their letters are nothing more than a flagrant effort to commit fraud on the courts of the United Kingdom and on this court, before the new government in Monrovia could move to block their continuing theft of government assets."

The Liberian government's founding affidavit said the English court was obviously hoodwinked. "Of course, the English court had no idea that the authors of these letters were the principals of LNPC, and that they were acting in their own self-interests, contrary to those of the government, because these facts were deliberately kept hidden."

The US court was also presented with a now famous letter from Shaw to Gus Kouwenhoven, a man known as "the Godfather of Liberia", in which Shaw documents the various corrupt schemes in which he and Kouwenhoven engaged.

Shaw told the M&G he did not write the letter, saying the Liberian interim government had probably forged it in desperation for money he was holding "in trust for a democratically elected government". But the bundle of papers includes a handwritten note by Kouwenhoven acknowledging receipt of the letter.

* A leading Dutch newspaper, Parool, carried a prominent news story last Friday linking Shaw and Liberia's current leader, Charles Taylor, to a notorious drug syndicate. The article claimed that in return for protecting the syndicate, the two politicians received a cut of its profits. Shaw is Liberia's ambassador extraordinaire, economic adviser to President Taylor, and was recently appointed head of the country's banking commission.

Philip A. Z. Banks, III: The National Elections Commission and the Citizenship Issue

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THE NATIONAL ELECTIONS COMMISSIONAND THE CITIZENSHIP ISSUE:
RISKING THE FUTURE OF LIBERIA

CITIZENSHIPISSUELEGALANALYSIS.pdf (33.68 kb)

By

Philip A. Z. Banks, III

[August 28, 2005]

I.  THE PRELUDE

Several years following the 1985 Presidential and General Elections I had the occasion to meet with Ambassador Emmett Harmon who served as Chairman of the Special Elections Commission, the body that conducted the 1985 elections. Although the meeting, which occurred at the Liberian Consulate in New York, was an unscheduled one, it was one I had longed for. Why, I asked him, did he and his Commission turn the Liberian peoples’ dreams and aspirations for a truly democratically elected government upside down and flat on its face, and deprive our nation and its people of the hope for a glorified stable future? I felt the urge to ask the question, perhaps the same as any other Liberians, but more so not only because I had worked for several years with the Morgan Grimes and Harmon Law Firm, of which Ambassador Harmon was a senior partner, but also because I was one of the lawyers who had put his life on the line. I enjoyed working with the firm; it allowed for honesty and competence amongst its lawyers, even in the midst of disagreements as to the firm’s own approach to the resolution of legal issues. When I left the firm, I had already risen to the rank of Managing Director. 

But there was a second reason why I felt a special sense of disappointment with the course being pursued by the Special Elections Commission and, in the light of that disappointment, the urge to have Ambassador Harmon give an account of his deeds as Chairman of the Special Elections Commission. I was one of the lawyers who, like a few other lawyers, had put his life on the limb in the hope of seeing a democratic process emerge in Liberia after such a long period of national failings at democratic attempts. I wondered how the Ambassador could find peace in and with himself after presiding over the theft of the Liberian people elections and consequently taking the country and its people down the path of utter disaster. “Counsellor Banks”, the Ambassador said in response to my query, “I had no choice. It has always remained a trouble spot for me, but it was either allowing Mr. Doe to become President of Liberia, however he turned out to be, or plunging the nation into an immediate blood bath and the lost of a great many lives.” It seemed plausible that such could have been the fate of the Liberian people and nation, but that, I thought, was for history to judge.  My reply to him therefore was that even with the scenario he had outlined, the Special Elections Commission still acted wrongly, that the ramifications of its action for the Liberian nation and people would be far greater and more disastrous than he could have ever imagined, and that the Liberian nation and people would feel the effects far beyond his own lifetime, perhaps even for decades. Twenty years after the fateful decision of the Special Elections Commission, in what was nothing short of a complete disservice to the Liberian nation and people, we, the people of Liberia, are still trying to deal with the effects.

II.  THE FAILINGS OF THE NATIONAL ELECTIONS COMMISSION

We have come full circle in twenty years.  Today, we have the Francis Johnson-Morris National Elections Commission (NEC).  It isn’t a Commission set up by an elected government; contrarily, it is a Commission set up by the most corrupt government in the history of Liberia, a government comprising some of the most brutal people in the history of our nation, a government characterized by a level of incompetence unknown in our nation’s history. It is a Commission the appointment of whose members, with minor exceptions, generated great disappointment. Today, almost twenty years to the date of the announcement of the results of the 1985 elections, we seem to be witnessing in the Francis Johnson Morris National Elections Commission the return all over of the Emmett Harmon Special Elections Commission.  On August 13, 2005 the NEC, in response to two of the challenges filed before it against certain presidential and vice-presidential candidates on the grounds that they had taken up citizenship of foreign countries and therefore barred from contesting the Liberian presidency, issued out an opinion that may go down in Liberian history as monumental, comparable perhaps only to the announcement made by the Emmett Harman Special Elections Commission in 1985. On that fateful October day, Liberians shed tears of blood for their country, their hopes dashed aside, and only a bleak future to look forward to. On that day, we saw the Emmett Harmon Special Elections Commission abandon all respect for the rule of law, the same as it had in the days preceding the announcement. I remember how ballot boxes were removed from their stations of storage under the cover of darkness; how ballots were destroyed; how ballot boxes were stuffed with fake ballots; how pooling personnel were sidelined and a 50 member body, comprising primarily Mr. Doe’s friends, relatives, officials and compatriots, was appointed to count the ballots; and how political parties representatives were denied the right to ensure adequate counting of even those ballots that were not destroyed. Today, we are watching unfold a course by the Francis Johnson-Morris National Elections Commission that is increasingly disregarding the law and turning the rule of law flat on its face.  The speculation that its decisions are being dictated from without is not important to this discourse, the same as the excuses by the Harmon Special Elections Commission for the violation of every rule of law principle was not relevant to its abridgment of the law. What is relevant is that the consequences of the decisions of the Francis Johnson-Morris National Elections Commission could be as far reaching as those made by the Emmett Harmon Special Elections Commission, and that the Liberian nation and its people could suffer serious ramifications for many years (or even decades) to come, perhaps even beyond the life of Francis Johnson-Morris and the members of her Commission.

Whether or not the members of the NEC can appreciate the magnitude of the role they are called upon to play in determining the future of Liberia, and I seriously doubt from their actions to date that there is such appreciation, the truth is that the seven members of the National Elections Commission hold the key to the success or failure of Liberia’s quest for democracy. They have in their hands the power to determine whether we have peace--- sustainable peace --- or whether we see our people return to war.  They can never afford to bend the rules, ignore the law, or taint the electoral process. We must speak out every time we see this happen, even if this makes our foreign friends (and those not our friends) uncomfortable. This is why, in the first instance, the nation needed its most honest, sober, committed, and professionally qualified sons and daughters for those positions. Those positions should never be filled merely by people who are looking for jobs, or who are the friends of government officials, or who can pay their way into being selected and have no conscience to live with when the dust have fallen on us.  I can say without hesitation, and am prepared to accept the consequences, that as with most other appointments where he had the power of choice, the Chairman of the National Transitional Government of Liberia did the Liberian nation and its people a great disservice.

Notwithstanding, I had hoped, without much enthusiasm, that the National Elections Commission of this transitional period would for once, unlike the Emmett Harmon Special Elections Commission, demonstrate the foresight to properly deal with the issues presented in accordance with the law.  I had hoped that for once the NEC would disappoint me in my assessment of it and would display the level of competence expected of an institution of that nature.  Although I never believed that the NEC, in whose hands the Chairman of the National Transitional Government of Liberia (NTGL) had placed the future of Liberia and its people, possessed the competence (except perhaps as to a few of its members) to properly perform the functions associated with the conduct of free and fair elections, I prayed that it would not take action that would place the future of Liberia and its people at risk. The Doe and Taylor eras had done enough to deprive Liberians of their honor, pride, dignity and self-respect, and the Bryant Transitional Government had equally compounded our self-inflicted disgrace by bringing even greater shame to our nation and people and to cause the international community to look upon us as undeserving its respect. Our people, I thought, needed a new start, in which the virtues of respect for the rule of law, could be seen and practiced by our National Elections Commission. We must not allow ourselves to be fooled into believing that such is practiced because of the number of candidates the Commission has allowed to contest various elective public positions.  It isn’t the number of candidates that is important. What is important is whether the NEC respects the rule of law. We had seen such disregard for the rule of law in the past that another mistake could be disastrous for Liberia, place Liberians again in a state of uncertainty, and dampen the small glimmer of hope they were only just beginning to develop again. Now, more than ever, I am of the belief, and that belief is strengthened by every action taken by the NEC, that that body, either because of its incompetence or other factors, which we must still seek to understand, is placing the future of our country and our people at great risk.  Like the Harmon Special Elections Commission, the NEC is under the illusion (or is it a deliberate course) that our future and the future of our country can be made more secured if it chose not to follow the law.

Take a brief look at a few of its actions. Firstly, in what seemed a remarkable lack of appreciation for the rule of law, the NEC commenced its work on the faulty premise that it had powers that the Comprehensive Peace Agreement (CPA) had not reserved to it but rather to the international community to ensure that conduct exhibited by past elections commissions are not repeated and that the ensuing elections are free, fair, transparent, consistent with the laws of Liberia, and meet international standards.  And, as to those powers that were reserved to it by the Liberian Constitution, as for example ensuring that the fundraising and other financial reporting provisions in the Constitution and the Elections Law were scrupulously adhered to by political parties and candidates, or investigating the sources of funds being exhibited by political parties and candidates, it showed remarkable acceptance of violation of the law by certain parties.  To date, except for the publication a few days ago (two years late) of financial the requirements, the NEC has asked no questions and made no enquiries as to how some political parties, virtually penniless prior to the interim period, accumulated the wealth that they are currently displaying.

Secondly, on February 7, 2005, the NEC placed over 300,000 Liberians outside the country on notice that it was taking the bold step of disenfranchising them of the right to participate in determining who the next leaders of their country should be. It didn’t matter that the right to vote was a fundamental one guaranteed Liberians by the Liberian Constitution; it didn’t matter that most of the affected Liberians were out of the country not of their own volition but because of the security condition that threatened their lives and very existence; and it didn’t matter that the Liberian Constitution never envisioned that Liberians would be deprived of that right merely because they escaped a war in which death seemed so eminent, or that they would be discriminated against for having the foresight to escape the wrath of death that was consuming the nation and its people.  The only apparent offense which formed the basis for the withdrawal of the critical constitutional right to vote --- the benefit of Liberian citizenship --- was that they had chosen to accept the safe sanctuary of refugee camps in foreign lands or the security of foreign nations sympathetic enough to offer them a second chance at life or an escape route from the impending fate of death that had befallen hundreds of thousands of their brothers and sisters. By its edict, it seemed, the NEC preferred that Liberians who had escaped the death trap of the war should have remained in Liberia and await their turn to be massacred by one or the other of the warring parties whose child soldiers had been turned into human killing machines for that purpose, or that in the alternative, they should have stayed to face the inevitable plight of starvation, disease, sickness, and consequently death.  How can the NEC justify denying these Liberians of the right to vote while at the same time allowing those who seek political offices to be exempt from the constitutional residence requirement?  I do not believe that the ten-year residency requirement was fair, reasonable or equitable, and I have been opposed to it from its very inception.  However, if seemed reasonable to dispense with that provision (and I reserve comments on the manner in which the provision was amended), then why was it also not reasonable to dispense with other provisions, which, under the interpretation that the NEC accorded to those provisions, deprived Liberians of the one opportunity, presented to decide on the leadership of their country?

Further, the NEC, in what I believe has now become its characteristic exhibition of a lack of foresight, determined that notwithstanding the clear wording of the CPA, the National Transitional Legislative Assembly (NTLA) had the authority to amend the Liberian Constitution simply by the passage of an Act.  It therefore submitted to the NTLA a draft legislation for passage into law.  It is difficult to understand by any parity of reasoning that the NTLA has the authority to amend the Liberian Constitution.  The CPA reserved no such power to the NTLA and none is vested in it under the Constitution, which the CPA clearly recognized as still being in effect.  I do not question the laudable goals sought to be achieved.  But no goals, however noble, can justify a resort to disregard or disrespect for the rule of law.  If we give the impression that it is permissible to violate the law and show a disregard for the rule of law simply because the goal we seek is noble, we could be setting the stage to perpetuate the disaster that has befallen our country. Yet, the NEC chose to pursue that course either because it lacked the foresight to design an alternative course or because it believed that the expediency of the moment superseded the need for respect for the rule of law.  I strongly believe that it was this kind of conduct that generated the first draft of the EGAP, which similarly sought to have the Liberian Constitution amended by either an Executive Order of the Chairman or the NTGL or by Act of the NTLA.

And more recently the Commission, in yet another display of its disregard for the law and a show of gross negligence in the performance of its duties, has created the real possibility that for the first time in our nation’s history, Liberia could have a president and/or vice president who, because of his citizenship of another country, holds allegiance not to Liberia but to a foreign sovereign power, and that a substantial number of the Liberian legislators could be similarly placed.  The issue presented for the NEC’s determination went beyond a mere violation of Liberian law, as important as that element may be. It involved national security and sovereignty: The control of the nation by persons who may not be Liberians and who owe no allegiance to Liberia. The Commission reached its conclusion by asserting that a person raising the issue of the Liberian citizenship of a candidate seeking elective public office, where the law requires that such person be a Liberian citizen or a naturalized Liberian citizen, has the burden of proving that candidate is not a Liberian citizen. The decision by the NEC turns the law on its head since, under the NEC reasoning a person seeking elective public office does not have the burden of proving to the Commission that he is a Liberian citizen even though the law requires that the candidate be a Liberian citizen or a natural born Liberian citizen. Even more disturbing is the fact that the NEC seems to believe that the duty imposed on it by law to ensure that candidates seeking elective public offices are Liberian citizens should be shifted from it to the objectors who must now prove that the candidates are not citizens of Liberia. That decision could have profound consequences for the future of Liberia and its people. 

A point of clarity is important at this juncture. It doesn’t matter to me who the candidates are and I refuse to dwell on personalities even though some of them may be the focus of the current ongoing controversy over the citizenship issue. Instead, I prefer to deal with the broader issue that as a consequence of the NEC’s decision many persons seeking various political elective offices (presidential, vice-presidential and legislative) and who are not citizens of Liberia could be elected to such offices, not only in violation of the laws of Liberia, but also in having our constitutional branches of government controlled by persons who are not citizens of Liberia, who owe allegiance to another sovereign power, and who therefore could put our nation and people to risk. Accordingly, my approach is to treat the issue within a constitutional, rule of law and national security context rather than a personality controversy. Thus, in any situation where I make mention of a candidate it is only to put the issue in its proper context.

III.  THE NEC AND THE CITIZENSHIP CONTROVERSY

Several weeks ago, the Liberian Observer Online carried an article in which Dr. Walter Gwenigale, a contestant for the Standard Bearer’s position of the Liberian Unification Party (LUP), challenged the right of Dr. Shelton Beedoe to contest the same position.  The article stated that Dr. Gwenigale had written a letter to the Chairman of LUP challenging the election of Dr. Beedoe as LUP’s Standard Bearer to contest the Liberian presidency because, according to Dr. Gwenigale’s, Dr. Beedoe was a citizen of Liberia and the United States. Dr. Gwenigale’s reasoned that Liberian law does not allow dual citizenship and that therefore Dr. Beedoe was barred from holding a position in the party from which he could seek the presidency of the Republic.

At around the same time, the Observer Online also published an interview that it stated it had had with another presidential aspirant, George Manneh Weah. According to the Observer, it posed the following question: “Amb. Weah, a lot of your critics, rivals and enemies have made a big deal about the citizenship issue.  Some say that because you are a naturalized citizen in France and maybe in Italy, you should not be in this race. Is that a fair assessment and is there any truth that you hold a European citizenship?” Candidate Weah is said to have responded as follows: “… You know, I will be honest with you because I have an honest life and don’t want to cheat anybody. In the past when I played in Paris, of course I played under dual nationality status.  So before I came into politics because of the love of my people and when I was petitioned to run I knew there would be rules and I would have to abide by the rules of the elections commission so I renounced my French citizenship and I have all the documents to prove it….” The issue took on prominence when the Coalition of Political Parties Youths (CPPY) filed a complaint against presidential aspirants George Manneh Weah and Marcus Dahn, accusing the former of holding French citizenship and the latter of holding United States citizenship. CPPY asserted that in taking up the citizenship of foreign nations, the two presidential aspirants had lost their Liberian citizenship, and as such, they should be barred from contesting the presidency of Liberia.

In yet another development surrounding the citizenship issue, The Analyst reported that two other Liberian groups, The Progressive Action for Change and Brains of Liberia, had filed challenges with the NEC against presidential aspirants Ellen Johnson-Sirleaf, Togba Nah Tipoteh, Alhaji G. V. Komah, Nathaniel Barnes, Charles W. Brumskine, H. Varney G. Sherman, John Morlu, Robert Korto, Winston Tubman, Roland Massaquoi, and Sekou Konneh.  Although the basis for the challenges varied, the primary allegation, the Analyst noted, related to the question of Liberian citizenship.  Like the Coalition of Political Parties Youths, these groups also asked the NEC to bar the named individuals from contesting the presidency.

How the issue is resolved is critical to Liberia’s future.  It spans not only presidential candidates, but also legislative candidates, many of whom allegedly hold citizenship of other countries.  It was important therefore that the NEC dealt with the issue in a manner that preserved and protected the oneness of the Liberian nation, ensuring not only that the candidates meet the citizenship requirements of the law, but also that non-Liberians who owe no allegiance to Liberia not become executive and legislative leaders of Liberia.  It isn’t a question of whether we like the law or believe that it should be changed; it is a question of whether we follow the law as mandated and preserve the rule of law.

This was the expectation held by many Liberians when the NEC availed itself of the opportunity to speak to the issue in the case involving presidential aspirants George Manneh Weah and Marcus Dahn.  In its decision, the NEC declared: “It is the ruling of the NEC that the evidence by the complainants is not sufficient to prove the dual nationality of Ambassador Weah and Dr. Marcus Dahn to render them ineligible to contest in the 2005 elections as presidential candidates.”  The NEC explained that on receiving the complaints and “considering the enormous constitutional gravity of the allegations made by the complainants”, it had its senior legal counsel communicate with the United States and French Embassies “to confirm the citizenship or non-citizenship of Dr. Dahn and Ambassador Weah of the US and France respectively”.  The NEC decision noted further that the United States Embassy had failed to respond to the query but that the French Consular Attaché in Liberia promptly responded, informing the Commission that the French Consulate did not have a listing of all French nationals and stating that “the French Judiciary authorities are the only competent authorities vested with the power to clarify any doubt over the French citizenship of any individual.” The Commission added that notwithstanding, the French Consulate General in Abidjan and in Monrovia had indicated that the Consulate had “a list of individuals who chose to register as French citizens residing in Liberia or Cote d’Ivoire.” It quoted the French Consulate response as stating that it “does not have and never had any French citizen by the name of George Weah registered as a French citizen residing in Liberia.  Furthermore, the Office of the Consular Attaché in Monrovia never handled or even saw a French passport under the name of George Weah, since it opened in December 2003. However, the Office of the Consular Attaché came across documents belonging to Mr. George Weah on two occasions, both of them pertaining to a visa request in order to enable Mr. Weah to travel to France. The first time, in May 2005, a visa was requested by the Ministry of Foreign Affairs on a Liberian diplomatic passport; the second in July 2005 on an ordinary Liberian passport.””

The NEC noted that in respect to candidate George Manneh Weah, who did not appear in person at the hearing, his counsel “denied the allegation and contended that at no time did Mr. weah take on French citizenship and renounce his Liberian citizenship.” The Commission stated that candidate Weah’s counsel presented the following documents in support of the denial: “A Liberian diplomatic passport bearing number D/0002014-00 issued on July 13, 2000; another Liberian Diplomatic passport bearing number D/004193-04 issued on December 7, 2004; . . . a birth certificate issued by the Ministry of Health and Social welfare on march 23, 2005 as well as a copy of the list of players of the National Football team of Liberia by the Confederation of African football and FIFA dated January 20, 2002 and June 18, 2002 respectively.”

As to the complainants, the Commission noted that they had presented no evidence with respect to candidate Marcus Dahn and that with respect to candidate George Weah, they had only made reference only to the interview carried in the Daily Observer newspaper. The complainants contended that we Mr Weah had not rebutted the statements attributed to him, the same constituted an admission by Mr. Weah. This response was not satisfying to the Commission and, hence, on August 5, 2005 it requested the complainants to produce the tape so that could be assured, under the best evidence rule, that the voice on the tape was that of candidate Weah and that he had admitted to being a French citizen. It noted that the complainants had failed to meet this request, and therefore had not met the test of the preponderance of the evidence to substantiate their claim as to Mr. Weah’s French citizenship.  The Commission also dismissed as hearsay the FIFA Magazine Article of 1996 which stated that Mr. Weah had “dual Liberian and French citizenship”.  The Commission therefore concluded that the complainants had not provided sufficient evidence against candidates Dahn and Weah to prove their dual nationality as would render them ineligible to contest the 2005 elections as presidential candidates.

Perhaps even more disappointing is the fact that the Commission chose not to hear or pass upon challenges made against other presidential candidates prior to pronouncing them eligible to contest the presidential elections.  Did the Commission not consider that it was only appropriate and fair that as it did with the complainants against Dahn and Weah, it should also have dealt with the complaints against the other candidates prior to declaring them eligible to contest the presidential elections? How could the NEC declare any candidate eligible to run for an office when the law requires that the person’s eligibility depended on his citizenship of Liberia and a challenge had been posed to that person’s assertion of Liberian citizenship? How, after such blunder, does the Commission propose to subsequently inform any of the candidates it had declared eligible that it had now determined that they, or any of them, were after all not eligible to contest the presidency?  One can only imagine the chaos that such a declaration could bring to Liberia, only because, perhaps as expected, the Commission chose once again to exhibit its incompetence.  What about the other candidates who are seeking presidential and legislative offices? What if no challenges are posed? Does the NEC, on that basis alone, declare that the candidates are eligible to contest the presidency and legislative positions? What were the views of the so-called “senior legal counsel”? And what of the Elections Advisor(s) seconded to the Commission by the international community or the United Nations?  Is this how they verify citizenship in their respective home countries or deal with the issue when a challenge is raised? If this is how they would advise the conduct of elections in their respective countries, then I can only pray that the Lord will have mercy on those countries, the same as I am praying that the Lord will have mercy on Liberia.  Or is it that our foreign friends believe that we are undeserving of the same democratic and rule of law standard practiced in their own homes?

Notwithstanding my disappointment with the NEC, it is important to note, to the credit of two of the lawyers on the Commission, that Commission’s decisions was not unanimous.  Of its seven members, four signed the opinion, one abstained, and two, for whatever reason(s), did not append their signatures to the document. I assume that the two members who did not append their signatures to the document disagreed with the decision.  If that is the case, I am disappointed that they did see fit to write dissenting opinions so that the Liberian people and the world could have a glimpse of how they felt about the issue and the proceedings as conducted by the Commission.  It is noteworthy nevertheless that out of the three lawyers on the seven members Commission, two (a majority of the lawyers) disagreed with the decision.  It is most unfortunate that the non-lawyers on the Commission did not see fit to listen to the majority of the lawyers as to the legal implications of the decision.  It is also unfortunate that the majority of the lawyers on the Commission did not voice a public concern at clearing candidates to contest elective public offices without first determining whether they qualify as citizens of Liberia as required by the Liberian Constitution and the Aliens and Nationality Law.

Now that the preliminaries have been dealt with and the premise laid, I propose to examine the role, duties and responsibilities assigned to the Commission in regard to the citizenship issue and to undertake a diagnostic study of the proceedings as conducted by the Commission.  This may give clarity as to where I believe the Commission has gone seriously wrong.  A good place to start is with the Liberian Constitution.  We know that the Comprehensive Peace Agreement of August 18, 2003 suspended certain provisions of the Constitution.  We know that the CPA also declared that those provisions of the Constitution not suspended remain in full force and effect. And we know further that the CPA did not suspend the provisions of the constitution relating to Liberian citizenship and the eligibility criteria for contesting elective public offices, whether for the presidency, vice presidency, senator, representative, or chief. One common theme runs throughout the requirements: The aspirants must be Liberian citizens. However, the standard is set much higher for persons seeking the presidency and vice presidency: They must be natural born Liberian citizens. (Lib. Const., Art. 52).

The first question for query is who then is a Liberian citizen? The Constitution states the following, at Article 27: (a) All persons who, on the coming into force of this Constitution were lawfully citizens of Liberia shall continue to be Liberian citizens; and (b) only persons who are Negroes or of Negro descent shall qualify by birth or by naturalization to be citizens of Liberia.  That organic document recognizes that persons born of Liberian parents, although outside Liberia, are also Liberian citizens; but it states that upon attaining their majority such persons must relinquish any other citizenship acquired by them by virtue of they having been born outside Liberia or unto parents, one of who was a foreign national.  Equally important is the document’s declaration that no Liberian will be denied the right to change his or her Liberia citizenship or nationality. (Lib. Const., Art. 28). And it vests in the Liberian Legislature the power to prescribe additional qualification criteria for and the procedures by which naturalization may be obtained as well as the broader power to establish laws for citizenship, naturalization and residence. (Lib. Const., Arts. 27(c) and 34)

Pursuant to the powers granted under the previous Liberian Constitution the Legislature in 1973 passed the Aliens and Nationality Law (ANL). The 1986 Liberian Constitution, at Article 95, proclaimed the said law as being fully in force. The Aliens and Nationality Law outlines the criteria for acquiring Liberian citizenship, and the manner in which that citizenship can be lost. It states that Liberian citizenship is acquired through birth or by naturalization. (ANL, secs. 20.1 and 21.1).  Under the said law, no person claiming Liberian citizenship can hold dual nationality, except for the following:  (a) where a Liberian woman, by virtue of her marriage to a foreign national, and without and affirmative action on her part, automatically becomes a citizen of her husband’s country; (b) where by virtue of birth to parents, one of whom is a foreign national, a Liberian acquires the citizenship of the parent’s country; and (c) where a Liberian acquires the citizenship of another country by virtue of having been born in that foreign country unto one or  more Liberian parents.  However, in both of the latter instances, the Liberian citizen must, at the age of maturity swear allegiance to Liberia and renounce his or her foreign citizenship; otherwise he or she loses his or her Liberian citizenship. (ANL, sec. 20.1).

The current debates center around persons who were born of Liberian parentage, or, being of Negro descent, acquired Liberian citizenship by virtue of having been born in Liberia.  The allegation is that although some of the aspirants for elective public offices were born Liberian citizens by birth and therefore were natural born Liberians, they had subsequently determined to, and did acquire, the citizenship of foreign nations; that by virtue of their affirmative action, they had lost their Liberian citizenship; and that as a result of that lost of Liberian citizenship they were not eligible to seek any elective public office where the law states that only citizens of Liberia are eligible to contest such office.  Some of the complainants have even stated that certain of the aspirants had acquired dual citizenship of Liberia and the foreign nation and that this formed the basis for their exclusion to contest the ensuing elections.

It is worthy to reemphasize that Liberia does not recognize dual nationality, except in the instances mentioned above.  The current issues do not involved any of the exceptions noted above. Rather, the issue involve allegations of affirmative action taken by certain of the political aspirants in acquiring the citizenship of other nations.  Our Alien and nationality is clear on the issue.  It states, at chapter 22, that a Liberian loses his citizenship automatically and without and proceedings being instituted for that purpose if he or she does any one of the following acts: (a) obtains the naturalization of another state upon his own application, upon the application of an authorized agent, or through the naturalization of a parent having legal custody of the person then twenty-one years of age unless the person enters Liberia and establishes it as his/her permanent residence prior to his/her twenty-third birthday; (b) taking an oath or making an affirmative or other declaration of allegiance to a foreign state or a political subdivision thereof; (c) entering or serving in the armed forces of a foreign state of one free choice without the specific authorization of the President of Liberia; (d) voting in a political election in a foreign state or voting in an election to determine the sovereignty of a foreign state; and (e) making a formal renunciation of Liberian nationality before a diplomatic or consular officer of Liberia in a foreign state in such form as may be prescribed by the Minister of Foreign Affairs of Liberia.

Knowing what we do know of Liberians, it is safe to say that many no longer possess Liberian citizenship as a result of one of the above acts, especially in respect of those who have naturalized in a foreign country and those who have served in or are continuing to service in the armed forces of foreign states without the specific permission of the President of Liberia.  Even those who have voted in foreign elections have automatically lost their Liberian citizenship. As painful as that may be, it is the law of Liberia.  What then were the duties and responsibilities of the NEC in respect of the aspirants for elective public offices?  The fact that a person has a birth certificate showing that he was born in Liberia and/or unto Liberian parents some 35 or 40 or even 50 years ago, showing that at the time of birth the person was a Liberian citizen, does not necessarily thereby make him a citizen of Liberia in the present.  If he took up the citizenship of another country at any point after his birth, he automatically lost his Liberian citizenship, but he would still be entitled to a birth certificate.  No judicial proceedings were necessary to cause the lost of his citizenship; that lost was caused by the affirmative act of naturalization with a foreign state.  Yet, such person would still be entitled to a birth certificate, f he made the request for one.  That certificate would show that he was born in Liberian unto Liberian parents. The truth of the matter, however, is that such person would no longer be a Liberian citizen. Indeed, even assuming that he subsequently relinquished his foreign citizenship or nationality and again took up Liberian citizenship he could no longer be deemed a natural born Liberian. His new status would be a naturalized Liberian.

Nor is the possession or production of a Liberian diplomatic or official passport, dated long after the years an individual is alleged to have acquired the citizenship of another state, conclusive as to the person’s Liberian citizenship.  We know that many foreign nationals possess Liberian diplomatic passports, sold to them by some government officials or others, or given to them by virtue of serving as Liberia’s Honorary Consuls, for whatever reasons. Even the holding of an ordinary Liberian passport does not establish Liberian citizenship for purposes of holding the nation’s highest executive office.  Moreover, the failure by a foreign embassy to respond to a citizenship query wrongly posed to it by the NEC, the wrong party to pose such query, does not provide justification for the NEC’s assumption that the aspirant is a Liberian citizen.

The Commission owes the Liberia nation and people the duty to ensure that those persons seeking elective public offices meet the requirements of the law, principally that they are citizens of Liberia.  It had the mandatory responsibility and owed the Liberian people and nation the mandatory duty to investigate each candidate, without awaiting a challenge from any person, to ensure that all of the political aspirants are citizens of Liberia. As a first step, and particularly given the given the importance of the office of the presidency of the nation and of Senators and Representatives, the NEC should have had each aspirant swear to a declaration, under penalty or perjury and disqualification, in which he/she answers certain key questions, including the following: (a) Are you a citizen of Liberia? (b) By what method did you become a citizen of Liberia, birth or naturalization? (If naturalized, please attach instruments of naturalization). (c) Did you at any time relinquish your Liberian citizenship or have you ever taken up the citizenship or nationality of another country since becoming a Liberian citizen, by birth or naturalization?  If yes, when?  (d) How long were you a citizen of that foreign state? (e) If you acquired the citizenship of a foreign state, did you relinquish that citizenship and again become a Liberian citizen? When?  (f) Have you ever held dual citizenship of Liberia and a foreign state? Under what circumstances did you acquire or hold such dual citizenship?  Have you relinquished the citizenship of that foreign state? (g) Have you served in foreign armed forces or voted in any election for political office in a foreign state? Have you ever contested an election in a foreign state or held office in a foreign state growing out of an election? These would have provided the basis for the NEC initial investigation of the aspirants to ascertain whether there were citizens of Liberia, especially as the Aliens and Nationality Law makes it clear that dual nationality is not recognized in the Liberian jurisdiction, except in the special circumstances stated before. It did not require any great brains to know that these preliminary steps were necessary and went to the core of establishing that the aspirants are Liberian citizens.  Yet, no where in its opinion does the NEC state what documents it required of the aspirants, which documents it received from them, and what in the documents indicated that at present the aspirants were citizens of Liberia, that they have never renounced their Liberian citizenship for that of another nation, or that having renounced their Liberian citizenship, they had undertaken the naturalization process prescribed by law to regain their Liberian citizenship. To the contrary, the Commission’s opinion leaves one with the impression that the only documents it possessed relative to aspirant Weah were those presented by his lawyers for the first time during the proceedings. No mentioned was made of any documents presented by aspirant Dahn. And nothing was said of any documents required by the Commission and presented by the said aspirants or any other aspirants contesting elective public offices. One must therefore wonder how the Commission determined in the first instance or otherwise became convinced that the aspirants for elective public offices were Liberian citizens, or that being Liberian citizens they had met the further requirement of natural born citizens, as warranted the aspirants being cleared to contest the elections.

Moreover, no reference was made in the opinion to the Ministry of Justice which, under the Aliens and Nationality Law, has the authority, with certain prescribed intervention of Liberian courts of competent jurisdiction, to administer the said law with regards to Liberian citizenship. Nowhere does the opinion state the procedures the candidates were required to pursue and what those procedures had revealed of the candidates; no where does the Commission show how the duty imposed on it by law to certify that a person is a citizen of Liberia shifted from it to the objectors to prove that a contestant for elective public office is not a citizen of Liberia; and no where in the opinion does the Commission state that it enquired of the candidates whether there were citizens of Liberia or if they had ever taken up citizenship of a foreign country, or if they had, what was the current status of that citizenship.

The NEC is not clothed with the right or the authority, whether under the Constitution or the Elections Law, to make any assumption as to the Liberian citizenship of any of the political aspirants without the adequate evidence presented by such aspirants and certification by the appropriate government agency as to that citizenship. Nor should the Commission have relied on the complainants to produce evidence to the contrary in the absence of it having failed to fulfill its role as required of it by law to ensure that each aspirant for elective public office is a citizen of Liberia.

The object of the constitutional and statutory requirements regarding Liberian citizenship relative to aspirants seeking elective public offices is to ensure that no foreign persons contest Liberian elections and that no foreign person ends up holding elective public offices, as would bring into question issues of allegiance, sovereignty, security, and the like, which could put the Liberian people and the Liberian nation state at serious risk. The duty therefore was on the NEC in the first instance, and the burden similarly was on the political aspirants in the first instance to show citizenship, not the objectors to show the non-citizenship of the aspirants. Constitution clearly states that no Liberian should be prevented from renouncing his Liberian citizenship and taking up the citizenship of another country.

In part 2, I shall examine further how the Commission should have carried out that duty and the responsibility imposed.

In Liberia: The President, The Media, and The Crook

On May 10, 2011, the President of Liberia announced 10 new appointments to the Government of Liberia.  The most startling appointment was that of Emanuel Shaw, as Chairman of the Board of the Liberia Airport Authority.

This appointment is even more shocking when one considers this President has been dogged by her inability to adequately tackle corruption.  Five years into her administration, a President I vigorously supported, finds herself unable to govern in a manner that would help Liberia free itself from the development-stifling corruption.  Five years into her administration, Liberia is ranked as the most corrupt nation in the world by Transparency International.

A Brief History of Mr. Emanuel Shaw

According to a series of reports by the South African Mail & Guardian, "Mr. Shaw, one of Doe's closest confidants, fled Liberia ahead of the dictator's downfall in 1990, but before he did so he allegedly masterminded an elaborate ploy to rob the impoverished country of about $27-million - in effect the remaining assets the country had abroad.

The court papers establish that Shaw set up a new national oil company in which he was a major shareholder, resigned as finance minister, and then wrote a letter as if he were still finance minister obligating the government to pay his oil company millions of dollars."

As Mrs. Johnson-Sirleaf and Amos Sawyer were agitating for the removal of Samuel Doe, their organization, the Association for Constitutional Democracy in Liberia (ACDL) wrote in its June 1989 Newsletter of Mr. Shaw:

"They have converged to pillage the wealth of Liberia. Shaw [and several ministers and public officials] have joined Doe in forming a parasitic cabal that is dedicated to the plunder of Liberia's resources.The kleptocrats in Monrovia engage in nothing of productive or long-lasting value to the nation's economy.

They simply skim off the top of whatever remains. Emmanuel Shaw is simply the most representative figure of this social category."

A former Justice Minister in Mrs. Johnson-Sirleaf's administration, Phillip A. Z. Banks, III, also represented the Government of Liberia, in a lawsuit filed in New York, by Mr. Shaw to force the government to pay up on the scam.

What makes this appointment by the President so puzzling, for a woman who has bemoaned the weakness of the Liberian justice system, is that Amos Sawyer, the Chairman of the Good Governance Commission, Phillip A. Z. Banks, III, the Chairman of the Judicial Reform Commission and the President all have intimate knowledge of who Mr. Shaw is. 

This is not a bureaucratic breakdown, neither is it a failure to perform due diligence.  When Mrs. Sirleaf became President she was advised by the United Nations of two sanctions against former Liberian officials:

1) The UN Travel Ban List

2) The UN Asset Freeze List

Emanuel Shaw's name appears on both of those lists. 

Enter the Press 

As if on cue, a publication, BusinessLiberia, which "promotes doing business in Liberia,"  put Mr. Shaw on the cover of its magazine (see photo above).  In the interview, Mr. Shaw spoke harshly about saboteurs of the Liberian economy:

These saboteurs of our economy are the ones truly guilty of economic crimes. They are the enemy within. But they are also the big elephant in the room, the one that everyone can see but no one wants to talk about.  


This coming from a man, who had been labeled a kleptocrat by the very President now appointing him. Patriotism is, indeed, the last refuge of the scoundrel.

So what we have in this entire disgraceful debacle, is the President appointing someone to government, her organization excoriated as a kleptocrat, and the Press, BusinessLiberia, in this case, attempting to polish and rebranding his image.

It simply strains credulity for anyone to believe that BusinessLiberia publishing this piece on Mr. Shaw, just around the time he is appointed is a mere coincidence.  I seriously doubt that.  I see it as  an orchestrated enterprise by the President, Mr. Shaw, and the Press.

Madame President, exactly how does your plan to tackle corruption in Liberia work, when you put the fox in charge of the hen house?