George K. Fahnbulleh

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

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

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 and what can be done to get us out of this mess¹.
by Ambrose W. Wortorson, Esq.² 

INTRODUCTION
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.

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? <

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?

"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.

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

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

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

He further went on to say "we acknowledge we are all sinners; however, homosexuality, is against the very nature of our shared Liberian and African heritage."

The group says there is no reason to hold national meetings or conventions as 9 out of every 10 Liberians are members of one or more of its subgroups. "Anywhere more than three people are seen, dah meeting!" said the spokesman.

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

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

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

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