George K. Fahnbulleh

Ideas and Opinions...

In Liberia: Engineering the Failure of LIBTELCO

This article was written by George K. Fahnbulleh and Omar Fahnbulleh

The Liberian government recently announced a policy wherein the government would roll the cost of government official's communications into their salaries.  While this policy has been greeted with cheers by the people of Liberia, this writer believes there is something much more dubious afoot:  the deliberate bankrupting of LIBTELCO thru a series of seeming innocuous policies which I will detail.

To get the fiber optic cable here, we spent about 25 millions under a private-public venture called the Cable Consortium of Liberia. We have a problem; we don't have the required infrastructure to the get the cable operational. We need about 7 million dollars to get it going and we have not been able to get Government funding and this is why the connection process is slow. But we are making efforts to get banks to fund the project. At the moment we moving small small. ~ Paul Muah, Deputy Managing Director LIBTELCO 

The gains for the government and people of Liberia, with the implementation of high speed internet connectivity, in terms of increased efficiencies, communications, accountability, education, health are on a scale of orders of magnitude.  It is mind boggling to us, why the government would allow this entity to struggle when it is the entity which was built for exactly this function.

As we examine the latest policy, we realize the civil war destroyed the telephone line infrastructure in Liberia. However, in today's communications, most telephone traffic is no longer analog, but digital in the form of VoIP (Voice Over Internet Protocol) transmitted via fiber optic cables.  This is the same fiber optic infrastructure LIBTELCO is struggling to raise money to construct. 

If the Infrastructure is built efficiently LIBTELCO could offer the Government and it Para-statals (IE. Central Bank, GSA, LPRC, NOCAL) and others, VOIP, VIDEO, DATA, Storage and Cloud based services from it’s current Data Centers.  With Liberia not having an abundance of qualified ICT professionals, the government should make a concerted effort to leverage LIBTELCO's expertise in providing these services. 

In Liberia, government offices do not have desktop phones, instead the government spends quite a bit of money annually to provide telephone service, by paying for "telephone scratch cards."  This means ALL GOVERNMENT BUSINESS, is conducted via private cell phones.  We had hoped this would be a temporary solution to the absence of the land line infrastructure.  With the coming of the fiber optic cable, we had hoped, the government, led by the Minister of Finance, a man with an Information Technology background, would have made this a top priority.

It should have been common and accepted knowledge, that the Government of Liberia, would have been the largest initial purchaser of services from LIBTELCO for desktop telephony, computer network communications (for operations health and education), data center services (the Ministry of Finance's IFMIS is currently hosted at the LIBTELCO data center).  However, the government has done all it can, to pull the rug from under this entity, and refuse to purchase the services only this company can offer.

The following government entities all have a need for massive data transportation and storage services:

  1. Central Bank of Liberia (this entity has diverted government funds to construct its own data center in Virginia).  Every service provided by this CBL data center, is currently available at the LIBTELCO data center.  As a matter of fact, any and all high speed internet service to the CBL data center can only come from LIBTELCO.
  2. NASSCorp (this entity is building its own data center)
  3. National Archives is currently building a massive database of digitized property records
  4. NOCAL has a need to provide secure managed data storage and transmission with its international partners
  5. GSA - Asset Management and Tracking Services Hosted at LIBTELCO
  6. National Security Apparatus
  7. Education - distance learning, record keeping etc
  8. Health - the ability to bring medical professionals to the desktop to assist Liberian medical providers.

The annual purchase of the services required to sustain the above needs, would far exceed what LIBTELCO needs to build out its infrastructure.  The argument cannot be made that there is no money, when you have at least two entities (Central Bank of Liberia and NASSCorp) duplicating the physical infrastructure and service offerings of LIBTELCO to the tune of several million dollars.

There is no argument any competent ITC professional can make, as to why the Central Bank of Liberia would undertake the extension of the fiber optic cable to Virginia or why NASSCorp would extend same to Red Light, and undergo the expense of providing triple redundancy for power, when all of the capacity and capability needed is already IN PLACE at LIBTELCO.

There is no argument any competent ITC professional can make, as to why the Central Bank of Liberia would undertake the extension of the fiber optic cable to Virginia or why NASSCorp would extend same to Red Light, and undergo the expense of providing triple redundancy for power, when all of the capacity and capability needed is already IN PLACE at LIBTELCO.  When taken into to consideration with the severe financial constraints facing the government, and LIBTELCO, one can only wonder what these folks are up to. 

One can only hope, the intent is not to bankrupt the company and sell it of to private "investors" for pennies on the dollar; but I am hard pressed to accept that the above confluence is simply a misadventure of the keystone cops.  There are too many smart people in this government, for the deliberate and willful ignoring of LIBTELCO.  Ralph Ellison wrote: "I am an invisible man, not because people cannot see me, but because they refuse to see me." LIBTELCO is the Liberian Government's "Invisible man."

The Way Forward

What is required is a UNIFIED NATIONAL COMMUNICATIONS AND TECHNOLOGY POLICY, which would drive the implementation and adoption of a single government wide strategy. We had hoped by now such a policy, which would put all of the communications and computing initiatives under a single budget line item, and a single management agency would have been done by now.

The Bureau of Data Processing currently under GSA, is the statutory agency RESPONSIBLE FOR ALL DATA PROCESSING SYSTEMS WITHIN THE GOVERNMENT OF LIBERIA.  This Bureau should immediately be seconded to the Office of the President, while legislation is drafted and passed to create the Bureau of Information Technology, headed by a cabinet level Director the Chief Technology Officer.

This BIT and it's predecessor will be THE SOLE ENTITY responsible for ALL, YES all computer and telecommunications systems within the government.  This will remove the IT decisions from people in Ministries, who decide whether or not to spend their budgetary allotment on internet services.

It is time to do better.

 

Why Rodney Sieh’s Imprisonment is Unconstitutional

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

 

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

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

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

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

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

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

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

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

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

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

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

_______________________________________

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

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

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

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

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

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

The  Law States as Follows:

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

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

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

Article 12 of the Constitution of Liberia States

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

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

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

by Omar Fahnbulleh

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

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

Who is Musa Bility?

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

In July 2012,

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

In June 2013,

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

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

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

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

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

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

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

Emanuel Shaw: "His main occupation was stealing."

"His Main Occupation was Stealing"

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An Open Letter To the President of Liberia

we cannot grow the Liberian economy, if we do not transition from a cash economy, to a credit economy.  The most fundamental concept which a functional credit economy is based, is the ability to uniquely identify every individual participating in that economy, in a manner that is reliable and non-refutable, and the ability to tie every asset to one or more individuals based on that identifier

Dear Madam President

As we approach the beginning of your 8th year in office, we need to examine the steps you need to take to place Liberia on a solid footing for growth, after you leave office. 

As an Information Technology professional, my suggestions are based on the need for a unified and managed approach to the acquisition and implementation of technology for the government of Liberia. 

In my opinion, this is the single most important legacy you can leave for Liberia, bar none. 

As things currently stand, there is no central authority which manages all of the Information Technology initiatives of the government.  Ministries implement their own systems, programs outside on their own and there is no professional oversight, neither is there the capacity for these systems to talk to each other.  There are three things which can be implemented on very short order to begin to leverage the technology for the future. 

1) Information Technology Management

The Government of Liberia should set up a government wide technology management agency, which will manage and oversee ALL technology projects for the government and the para-statals.  Fortunately, Madam President, the laws of Liberia already provide for such an agency.  The Bureau of Data Processing, currently under GSA, is, by law, in charge of all data processing systems within the Government of Liberia. 

I recommend you second the Bureau of Data Processing as a stand alone entity, within the Office of the President, while at the same time begin to work on legislation to transform it into the Bureau of Information Technology, to be headed by a Chief Technology Officer, and contain:

  • A shared services group - which will provide integrated architecture, development and implementation of all data systems within the government.  Yes I do mean all.
  • Database Management Group
  • Network Infrastructure and Security Group
  • Telecommunications Group


This Bureau of Information Technology will also examine all systems to ensure they meet the requirements of the National Security apparatus as well as the Records Management requirements of the Freedom of Information Act.

2) Growing the Liberian Economy

The government of Liberia must implement a single entity identifier, i.e. social security number, which NASSCorp already has the capacity to do, as well as a Business Entity Identifier.  These were spelled out in a previous paper, entitled "A Protocol for Asset Declaration and Verification."

Madam President, we cannot grow the Liberian economy, if we do not transition from a cash economy, to a credit economy.  The most fundamental concept which a functional credit economy is based, is the ability to uniquely identify every individual participating in that economy, in a manner that is reliable and non-refutable, and the ability to tie every asset to one or more individuals based on that identifier. 

Yes there are more than 10 John Flomo's in Liberia; however, if each is assigned a social security number, it is possible to determine who each of them is, which assets each owns.

Today in Liberia, banks do not serve the economy because of the risks involved for lending.  The biggest risk factor, faced by banks, is the inability to reliably determine each applicant's risk profile, his assets and his liabilities.  It is ONLY possible to this by using the above mentioned unique identifier.

People cannot buy and sell property, raise capital, because it is not possible to reliably establish the ownership of a piece of property.  Even with the current effort of the National Archives, which is digitizing all land records.  It is still not possible to definitively determine ownership of a piece of property.  The requirement that each property record be tied to a social security number, will allow property to be bought and sold in a reliable, irrefutable manner, which will lead to an explosion of capital investment.

The ability of banks to provide long term (20+) mortgage loans as well as automobile loans will also lead to an explosion of building construction and purchasing, putting many Liberians to work, while both increasing and expanding government revenue.

It will also have an impact on reducing corruption.  You see, in a cash economy, I have to come up with $25,000 to purchase a car. In a credit economy, I may only need $5000 and a reasonable monthly payment.  If I have to come up with $25000 at one time, where is the best place to find it?


3) Recruiting Talent

The government MUST establish a database of Liberian professionals in the Diaspora, who it can call on for assistance.  There is no field of human endeavor, in which Liberians have not excelled.  We cannot educate or teach our way out of the brain drain.  Today much of the capacity gap, is being filled in by ex-pats, who while doing a admirable job, are in it for the furtherance of their careers after their Liberia assignments are over. In too many instances the cost for these services is too high, but Liberia has no say because the funding is being provided by "partners." 

Now is the time for government to systematically begin to take ownership of these projects, to ensure their long term survivability, and the success of Liberia as a whole.


Sincerely,

 

George K. Fahnbulleh

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.