George K. Fahnbulleh

Ideas and Opinions...

Policing: I call bullshit on that!!!

No we don't "all need to change." I expect criminals will continue to be criminals. I expect police, whose job it is to fight crime, will do their jobs in a manner consistent with the constitution in a way that is not criminal.

What is going on with bad policing, has been going on for decades: 30+ years ago Richard Pryor satirized it when he say "it says right there in the manual "you can break a nigger."" 35 years ago Marvin Gaye, in his song "Inner City Blues (make me wanna holler)" sang about "trigger happy policing."

What HAS changed is the proliferation of video recorders, be they dash cams or cell phones, which provide additional perspective than the police "I feared for my life" narrative. Now that the misconduct is recorded and visible, the police position is "you don't know what it is to be a police officer."

Do I need to be a police officer to know that you don't shoot a fleeing Walter Scott 8 times in his back, try to plant your taser next to his body, and file false reports?

Do I need to be a police officer to know you don't fire your weapon in to a crowd and kill Rekia Boyd?

Do I need to be a police officer to know you don't arrive on a scene where there are several other police officers and SIX seconds after arriving you EMPTY your weapon into LeQuan McDonald?

Do I need to be a police officer to know you don't shoot Tamir Rice within TWO SECONDS of arriving on the scene?

Do I need to be a police officer to know, if you "fear for your life" you don't climb on the hood of the "suspects" car and fire 15 shots through the windshield killing Timothy Russell and Melissa Williams?

Do I need to be a police officer to know Officer Robocop of the Inkster police, who had been sued 4 times for excessive force, should not have been on the force, but for the consistent defense by other "good officers?"

Maybe I don't know what it is to be a police officer, but the officers in these instances definitely don't know what it is to be rational law abiding human beings!

No we don't "all need to change." I expect criminals will continue to be criminals. I expect police, whose job it is to fight crime, will do their jobs in a manner consistent with the constitution that is not criminal.

How exactly was Philando Castile supposed to change? He applied for and was granted a Conceal Carry Permit. He attended the required classes. Yes he had been ticketed 52 times in that past 8 years, with 35 of the charges dropped. Those numbers by themselves would suggest that he was either a very bad driver, or they are the result of targeted policing/ticketing. However, when coupled with the fact that 7% of the drivers in St. Anthony's are black, but that 7% receives 50% of the tickets, they tell a different tale.

So is it unreasonable to believe that this was simply another "good ole boy harassing stop of a black man" with a "wide set nose?" The officer claims he thought they were armed robbers, yet they did not execute a "felony stop?"

But what I am hearing from cops is not about their failure to follow procedure, but it is "he could have been a criminal." I call bullshit on that!

In Liberia: Judicial Tyranny


The recent decision by the Supreme Court to suspend Justice Minister Christiana Tah for granting compassionate leave to journalist/publisher Rodney Sieh has created shockwaves across the length and breadth of the political landscape. The entire Judiciary, the Executive, as well as the Liberia Bar Association have been reduced to caricatures of what properly functioning, independent structures of government and their attendant professional organizations should be.

Nowhere in Liberian law is it granted that the Ministry of Justice must first seek approval of the Court in its management of people committed to prison. The Supreme Court of Liberia itself can produce no such law. Not even lawyers who have argued in support of the Court have been able to provide such a reference. Let us also remember, the Justice Ministry was not required to seek Court approval to send Mr. Sieh to the hospital. The Supreme Court never argued that. They only argued that any compassionate leave of prisoners under civil commitment must be approved by the Court.

In sanctioning Minister Tah, the Supreme Court communicated in unambiguous terms that the Justice Minister and other respondents should simply come to the Court and apologize, and the whole matter would be over. Even a layperson understands that once you apologize, you surrender your right to mount any defense of the law. You prostrate yourself before the Court and beg for mercy. Thus, in keeping with the Court’s stipulation, the Justice Minister, the Ministry’s lawyers, including a former Solicitor General, all formally "apologized" to the Court. The Court then responded to the requested apology by suspending the Justice Minister’s license for six months, in effect preventing her from practicing law.

The treachery of the Court in demanding an apology, and then suspending the Justice Minister, also extended to suspending Mr. Sieh’s lawyer for three months – for his audacity in advocating for his client! In this environment of judicial misconduct, neither the Liberian Bar Association nor any one of Liberia’s supposedly towering legal "giants," which include some perennial presidential candidates, rose to defend the law.

It appears that the Court’s behind-the-scenes machinations were designed purposefully to prevent the Justice Minister from presenting a defense to the Court’s contempt citation, because any such defense would have laid bare the Court’s actions as nothing more than a vindictive power play. Whether this was in concert with the Executive remains an open question. However, the President’s silence on the abrogation of a privilege reserved exclusively for the Executive demonstrates tacit consent.

In its ruling, the Court claimed that the Justice Ministry had formulated no rules for granting of compassionate leave, therefore the Ministry of Justice arbitrarily sought to disobey Mr. Sieh’s commitment. When the Justice Minister tried to submit a Petition for Re-Argument, the Court rejected the petition, saying, "We only want another apology." As of today, the Court is still demanding yet another apology. But if the Minister’s initial apology resulted in a six month suspension, logic should tell anyone that another apology may well result in the Minister’s disbarment. Is this the type of behavior we want for our country’s highest court?

Only the pathologically insecure can find pleasure in continuously humiliating those they exert power over in this manner. Such judicial sadism is unacceptable in a democratic country.

What is abundantly clear by law, as highlighted below, is that the custodial supervision of all prisoners is the exclusive domain of the Bureau of Corrections and the Ministry of Justice.

Under Liberia’s criminal law code

§ 34.20. Leaves from prison.
1. Compassionate leave. The Minister of Justice shall formulate rules or regulations governing compassionate leave from institutions and, in accordance with such rules and regulations, may permit any prisoner to leave his institution for short periods of time, either by himself or in the custody of an officer, to visit a close relative who is seriously ill, to attend the funeral of a close relative, to return to his home during what appears to be his own last illness, or to return to his home for other compelling reasons which strongly appeal to compassion. The rules or regulations shall provide for the manner in which compassionate leave shall be granted, for its duration, and for the custody, transportation, and care of the prisoner during his leave. They shall also provide for the manner in which the expense connected with such leave shall be borne, and may allow the prisoner, or anyone in his behalf, to reimburse the State for such expense.

§ 34.2. Segregation of persons committed to correctional institutions.
In institutions or parts of institutions supervised by the Ministry of Justice, the following groups shall be segregated from each other:

(a) Female prisoners from male prisoners;
(b) Prisoners under the age of twenty-one from older prisoners;
(c) Persons detained for hearing or trial from prisoners under sentence of imprisonment;
(d) Persons detained for hearing or trial or under sentence, from material witnesses
and other persons detained under civil commitment.

Additionally, section § 34.2.(d) of the criminal code clearly assigns the "segregation" of ALL prisoners under the supervision of the Ministry of Justice. It is difficult to believe that the unstated legislative intent of this law was for the Ministry of Justice to supervise all aspects of a prisoner’s custody, when he eats, when he sleeps, when he exercises, but only if he is a prisoner under civil commitment, must she receive court approval for compassionate leave.

There are two Supreme Court Justices who previously served as Minister of Justice:
Justice Kabina Janneh, and Justice Phillip A. Z. Banks. As Minister of Justice, Justice Janneh granted compassionate leave to a pregnant woman prisoner who did not return to prison. Justice Phillip A. Z. Banks also served as Minister at a later date. Are these two Justices asking us to believe that the rules for compassionate leave used by then Minister Janneh were non-existent or voided after he left office, or that neither of them were aware of those rules? In either case, it makes their argument specious at best. Secondly, by demanding that the Ministry of Justice simply apologize, the Ministry was not allowed to present any evidence that such rules as above do exist.

Ministry of Justice Compassionate Leave Regulations Updated (January 2013)

Liberia does have quite a number of drinking establishments called bars, but the Liberian Bar Association is supposed to be the organization which deals with things like legal misconduct and the policing of lawyers.

It has become increasingly difficult to distinguish between the Liberian Bar Association and the Association of Liberian Bars, though the latter boasts far more vocal advocacy for its members.

When then Justice Minister Phillip A. Z. Banks violated every protection provided by law for the Nigerian Valentine Akiya, the Bar Association did not raise its voice to that misconduct. Mr. Akiya took his case to the ECOWAS Court, which found Liberia guilty in Valentine Ayika v Republic of Liberia: "Judges who presided over the trial informed the Government of Liberia's lawyers that the Liberian Government acted illegally by seizing the then Nigerian businessman money, and as such should pay back the money in the tune of US $508,200 to Mr. Ayika" (http://allafrica.com/stories/201210150746.html ).

The actions taken by Justice Minister Phillip A. Z. Banks have brought nothing but shame to Liberia and tarnished its image, especially amongst its fellow ECOWAS countries. Liberia is now refused a place on the ECOWAS Court until the Liberian judiciary complies with ECOWAS legal standards.

In other countries, when Mr. Banks was nominated for the Supreme Court, the Bar Association would have raised alarms and sought serious debate over his appointment given his violations of Mr. Ayika’s rights. When this same Justice Phillip A. Z. Banks refused to recuse himself from Mr. Sieh’s appeal, even though Mr. Toe’s lawyer is his brother-in-law, and he had previously worked at his brother-in-law’s law firm prior to becoming an Associate Justice, the Liberian Bar Association said nothing about the breach of ethics. Although the rules of disqualification may not be present for Liberia, Justice Banks studied law at Yale University in the US and should be familiar with 28 U.S. Code § 455 pertaining to the Disqualification of justice, judge, or magistrate judge. Chief Justice Lewis was many things, but even he had the honor and dignity to recuse himself in the matter regarding Mr. Sieh, after Mr. Sieh complained that he would be partial because Mr. Sieh had previously published articles about his drinking habits and alleged judicial misdeeds. Regarding Justice Banks, we should not be surprised that a Justice Minister who violated the rules of the ECOWAS Court refuses even the appearance of bias.

The silence of the Liberian Bar Association, and that of ALL lawyers in Liberia, is a glaring indication that the freedom of speech this President is so highly praised for in reality does not exist. If the lawyers of Liberia, who are charged with defending the free speech rights of the citizens, are themselves too afraid to give candid professional opinions about Supreme Court rulings, can we seriously say that free speech exists in Liberia? Was this not the crux of Mr. Sieh’s complaint against the judicial system?

President Sirleaf should think long and hard about this: We are eight years into her presidency, and the Court she has appointed is carving a legacy worse than that of prior courts under the True Whig Party, and the Doe and Taylor regimes. The actions of the Court and the President’s silence, for whatever reasons, have exposed the entire Liberian judicial system, from the Supreme Court to the Bar Association, as incapable of functioning impartially. All of the people on the Court were chosen by President Ellen Johnson Sirleaf, and thus their every action, and her inaction, reflects her legacy. 

US Lawyer Seeks Sirleaf’s Intervention

The letter appeared in Frontpage Africa on February 10, 2014

Dear Madam President:

I crave your indulgence and attentiveness to weigh in with some legal analysis about the punishment the Supreme Court of Liberia imposed suspending the professional license of the Minister of Justice, the Honorable Christiana Tah. I have closely followed discussions arising out of this ill-considered judgment. The court imposed this punishment against the Minister for invoking a valid legislation to act on behalf of your good self, Madam President.

“It is a gross abuse of power for the Supreme Court to punish the Minister of Justice for contempt”

This case is of great interest to me as human rights advocate and as an international legal practitioner who continues to pray that Liberia realizes its potentials as a beacon of hope for post-conflict societies in transition. Listening to the BBC broadcast about this dispute and reviewing other related feedback, I realized that some degree of misunderstanding about the law cut across the gamut of both some supporters and critics of the Court’s decision. It is primarily for this reason that I write to address the bone of contention by clarifying some key points of law.

It is indeed for the potential or actual collision of powers, as illustrated at this historic moment of dispute between the Judiciary and the Executive, that democracies venerate the values safeguarded by the principles and doctrines of separation of powers enshrined in the Constitution, which is the supreme law of the land. By definition, the separation of powers delineates the content and outer limits of the respective powers of the three arms of government, namely the Executive, the Legislature, and the Judiciary. It is one thing to concede that the Judiciary may well be the arm of government best equipped to interpret the Constitution and underpinnings such as the separation of powers doctrine. It is another thing to act as if this fiduciary capacity entitles the Judiciary to truncate the values of the Constitution, let alone trump the powers of the corollary arms of government. In the realm of objective reasoning it is neither for the Judiciary to arrogate to itself the authority to circumscribe an act of the Legislature, nor is it for the Judiciary to appropriate the powers of the Executive.

More specifically, I will itemize my argument as follows:

  1. The Supreme Court Justices allege that the Honorable Minister of Justice exceeded the scope of her authority by granting compassionate leave to Rodney Sieh. In their opinion, such leave was narrowly construed to only apply to criminal prisoners and not for persons detained for civil offenses such as the libel for which Sieh was imprisoned. Yet the plain terms of the relevant laws actually substantiate, rather than undermine, the propriety of the Minister’s authority.

    All parties agree that §34.20(1) of the Liberian Criminal Procedure Code governs this dispute. It is clear that the statute vests unequivocal, exclusive, and final authority in the Minister of Justice to establish and oversee the administration of compassionate leave and other decisions for prisoners. It appears that what the parties disagree on is whether Sieh was eligible for the leave approved, and whether the Minister of Justice should have first obtained the approval of the Justices before granting the leave. The Justices claim that because the statute regarding leave is set forth in the Criminal Procedure Code it only applies to criminal prisoners, rendering it inapplicable to Sieh, who was detained for a civil offense.

    It is untenable and without concrete basis to claim that the administration of civil prisoners is governed by a body of law distinct and separate from the comprehensive guidelines provided by Chapter 34. Chapter 34, section 2, expressly applies to all individuals held in custody, including those incarcerated “under civil commitment”. It therefore stands to reason that Sieh, who was imprisoned for libel which is a civil matter, was eligible to be considered for compassionate leave. Accordingly, it was valid for that prisoner to petition the Minister of Justice. As stipulated in §34.20(1) of the Liberian Criminal Procedure Code:

    The Minister of Justice shall formulate rules or regulations governing compassionate leave from institutions and, in accordance with such rules and regulations, may permit any prisoner to leave his institution for short periods of time to return to his home for other compelling reasons which strongly appeal to compassion.

    It is not in dispute that the appropriate legislation had been set in place.

  2. The Justices asserted that Minister Tah was required to consult them prior to granting Sieh’s petition. They do not, however, provide any constitutional, statutory, or administrative basis for this prerogative which they baldly claim. The governing law remains §34.20(1), quoted above, which in no uncertain terms vests in the Minister of Justice the power to grant compassionate leave. In light of the unambiguous legislative provision, it takes no divination to appreciate that it is ultra vires the powers of the Supreme Court to impose a preconference obligation on the Minister of Justice and the Attorney General of the Republic of Liberia.

    Going by the Court’s exasperation with the Minister, it is almost as if she granted an outright pardon, as opposed to a temporary compassionate leave. And even if that were the case, my research indicates that the power of pardon would still inure to the Executive and not to the Judiciary.

  3. It is a gross abuse of power for the Supreme Court to punish the Minister of Justice for contempt, simply because the Court disagreed with her interpretation and application of powers which the Legislature of the sovereign state of Liberia autonomously reserved by statute to the office of the Minister of Justice. Nothing on the face of the relevant statute or the history thereof as much as hints at a legislative intent for the judiciary to share this power with the Minister.

    Censorship for subjective interpretations of the law is antithetical to the life of the law. Given that legal minds are not monolithic, the very legitimacy of the legal system is without question jeopardized if lawyers, who are the officers of the courts, would rather capitulate to an authoritarian court than follow their conscience in the fearless submission of competing interpretations of the law in the best interest of justice. As succinctly put by a former Attorney General of Liberia’s close ally, “If lawyers are imprisoned each time the courts reject their view of the law, and then it will not be long before every lawyer is in prison.”

  4. The Supreme Court lacks jurisdiction to punish the Minister of Justice for contempt in a matter independent of any actual proceeding before it. Sieh’s petition to the Minister, as a representative of the Executive, was extrajudicial to the extent that it was made independent from an active legal proceeding before the court. In the same vein, the Minister’s concession of leave was not as an adjunct of the Judiciary but as an autonomous agent of the Executive, outside the purview of the courts even if relating to an issue which arose out of an act of the Judiciary.

    By definition, contempt of court requires the willful disobedience of a direct order of the court in a matter properly before it. Again, §34.20(1) which is a legislative act, authorized the Minister independent of the Judiciary to grant compassionate leave. In this light, it cannot be overemphasized that Minister Tah neither acted in contravention to any particular Court order, nor did she encroach on an ongoing proceeding before the court. Whatever the differences of opinion, there is no shred of objective evidence indicating that the Minister was motivated by an intention to “impugn the dignity of the court”.

  5. Even if one were to concede by the farthest stretch of the imagination that there was a potential for a valid finding of contempt in this matter, of all the arms of government, none better than the courts ought to defend the cardinal principal of justice captured by the Latin phrasenemo judex in cause sua. Simply translated, this means that one cannot sit as a judge in ones own case.

    Granting this precept, therefore, a sitting court that alleges an offense against an officer of the court knows better than to be judge and jury in its own case. As an eminent commentator on this case put it in a different context, “Since the contempt alleged did not occur in the face of the court, the Supreme Court ought not to have tried the case itself. The case ought to have been heard by another court. In the instant case, the Supreme Court was a judge in its own cause.”

    Equally noteworthy are the observations of a constitutional law expert of great global renown. In his analysis, even if it is assumed as the Court alleged that the Minister of Justice violated the doctrine of separation of powers, such violation cannot amount to a ground to hold anyone in contempt; the proper recourse is to void the Executive act that constitutes the violation.  As this scholar put it, “Contempt is an important power of the judiciary and should be fully respected, but at the same time it should not be allowed to morph into an unreviewable [emphasis added] power to punish officials who take action that the judiciary ultimately concludes is ultra vires [or] to enforce the judiciary’s sense of righteousness.”

  6. There are so many other compelling points of law that one could go on to enunciate. However, for the sake of brevity I wish to conclude on this note, which is that the Supreme Court’s finding of contempt and punishment by suspending the Minister of Justice’s license to practice law makes mockery of the role of the court as the arbiter of justice, which is the linchpin of democracy. Minister Tah’s license which is her credential to practice law is her hard-earned personal asset which predated her appointment as Minister, and in fact justified her appointment as Minister. Should the Court take exception to her exercise of duties arising out of her portfolio as Minister, common decency dictates that the punishment should be confined to that portfolio and not be globalized to strike at the core of her professional credentials.

    To reinforce my support to vindicate the Minister, I will borrow again from the poignant observations of the former Attorney General quoted earlier that, “In most African nations today, the press is often the only viable opposition and nothing should be done to stifle it as was done by this windfall award of damages” [by a court which was presided by the brother-in-law of the plaintiff who sued Sieh for libel].

Madam President, in a response to the Open Letter written to you by a Susan Peyton on January 28, 2014, a comment sympathetic to you reads, “As eloquently as the writer has made her argument, I don't seem to understand what she wants Mrs. Sirleaf to do about the Supreme Court's decision. For the record, the president would be totally wrong to attempt publicly getting involved in this matter. The court has obviously erred, but the president has absolutely no right to review or criticize their decision. That should be left to public sentiment.”

I can understand the perceived dilemma from a lay person’s point of view. However, the commentator whose address ironically indicates an affiliation with a law school should know if he indeed earned a law degree, that where one branch of government exceeds the limits of its powers, it is incumbent upon the branch whose powers are infringed, to push back. There is judicial precedent in Liberia for that matter to establish that when the Supreme Court in the past attempted to suspend the license of a Justice Minister, the President intervened to safeguard the powers of the Executive in keeping with the separation of powers doctrine.

Although it may not be typical in some circles to affirm much of former President Doe’s footprints, in this context, he actually set a precedent which is relevant. Apparently, during his administration, the Court attempted to hamstring the sitting Minister of Justice, Jenkins Scott, through a sentence suspending his license to practice law for two-years as a penalty for implying in a local newspaper that only the rich had access to justice in Liberian courts. The President publicly criticized this judicial overreach and threw the full weight of Presidential Powers behind the Executive Cabinet Minister who carried on with the crucial demands of his portfolio.

Madam President, may I humbly submit that should you, as the Chief Executive of Liberia, choose the path of least resistance to placate the judiciary; you will create a slippery slope which is bound to undermine your legacy. If you elect to remain ambivalent and pass the buck, so to say, on this foundational constitutional concern, we will have the self-same separation of powers doctrine hereby compromised to thank for the possibility of a legislative redress.

Permit me to leave you with the incisive conclusion of the prolific former Attorney General, whose expert input was elicited for this analysis. Per his advice, “I am firmly but humbly of the view that the Attorney General acted within her jurisdiction. If it is felt that this is a power which she ought not to have then the law should be amended accordingly.”

Respectfully,
Kate Chang, Attorney-at-Law, California

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

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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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.