By: Wonderr K. Freeman, Attorney at Law
Liberia’s Code of Conduct Act of 2014 has had something of a trouble history. Firstly, it lingered in the National Legislature for years, as representatives bickered over the contents – after all attempting to institutionalize transparency and accountability in Liberia’s governance landscape is no small mission.
It can be likened to climbing Mount Everest. As the bickering ensued, the President acted proactively to establish the code via an Executive Order (#38) in 2012 and renewed it again in January 2014 via Order #55.
The Executive Orders were limited in scope, especially against the backdrop that it was meant for the Executive branch only. This situation caused a lot of consternation among Executive branch officials, who saw the emphasis on them as a sign of unequal treatment before the law;since neither members of the Legislature nor officials of the Judiciary officers were covered by the Orders.
Now, fast forward to 2014, the National Legislature did, in fact, pass the law, but with some significant changes. Some of the changes have proved controversial – like the case of sub-section 5.1 and 5.2, which have since been taken to the Supreme Court of Liberia, twice, for interpretation.
Other changes (i.e., which I see as the more relevant ones and possibly detrimental to the objectives of the law itself) seemed to be passing under the public radar, as the political issue (§5.1 an §5.2) takes center stage. Consequently, in this article, I shall focus on what a code of conduct law ought to be and how the most important parts of the law are being ignored at the expense of the sub-sections on political participation.
In its most recent ruling the Supreme Court of Liberia, declared the Code of Conduct Act of 2014 to be fully compliant with our constitution. In short, there is nothing unconstitutional about parts of the law which states that presidential appointees:
- shall not engage in political activities and shall not canvass or contest for elective post;
- shall not use government property or facilities to support political parties;
- shall not serve on campaign teams, whether for parties or for independent candidates;
- must resign, 2-3 years (i.e., depending on the posts) prior to date of election;
- mustavoid active partisan politics in general while in the service of government.
At the time of its passage, the law had the semblance of targeting Dr. Mills Jones, then Governor of the Central Bank of Liberia [and others perhaps], who, at the time,was a tenured appointee, and who was doing all of the above.
Dr. Jones’ official banking trips to the counties (provinces) were becoming more and more like a campaign rally. Many representatives and senators, perhaps, harboring their own ambitions, decided to strike and create a level playing field. Understandable, from my point of view!How do you compete with a bank governor who has the national deposits at his disposal?
So, almost immediately, after the passage of the law, it was challenged(i.e., firstly, by surrogates likeJames Brooks and his Citizens Solidarity Council ), but the Supreme Court said no no:“no surrogates”.
And so in 2017, came Superintendent Mappy of Bong County seeking a declaration from the Court to the effect that the law is unconstitutional. To which request, the Court, in its infinite wisdom, responded with definitive NO.We now know that there is nothing wrong with putting a limit on high-ranking government officials’ political activities.
Service in government is not a fundamental or inalienable right (see Liberian constitution Chapter III, article 11 – 26). In fact, government service is a privilege. Like all privileges, it comes with preconditions. In this case, the condition for high-profile public position is viz: no active participation in political activities.
One can think of the issue of fundamental or inalienable rights as something akin to providing your seventeen (17) year-old kid with food, clothing, shelter, health and education. It’s fundamental and mandatory. But what’s about smartphone, birthday party, jewelry, or foreign travel?
The second list consists clearly of privileges, which often comes with conditions, like having a good report card, or respecting the neighbors or doing assigned house chores well and on time. In essence, the Supreme Court has done in the legal-political realm what most of us already practice in our homes. All laws, they say, are based on the reasoning ability of the common man.
Unfortunately, the political hullabaloo over the Code of Conduct law is taking away focus from the primary purpose for the law, which is: to curb corruption and other forms of abuse of office. In that respect, our current Code of Conduct law is short on the details and seems to be more in line with the [Rep.] Forh’s doctrine: you eat; I eat, and let’s screw the people! In terms of curbing corruption and conflict of interests, our Code of Conduct law keeps coming up short. For example, key features of any code of conduct law are to:
- curb unexplained wealth and illicit enrichment;
- curb conflict of interest amongst officials charged with implementing government policy;
- curb bribery, influence peddling and discriminatory practices in public service;
- provide a mechanism through which complaints against government officials can be investigated or a mechanism through which the work of integrity agencies like the anti- corruption commission, the supreme auditing commission, the internal audit agency, and the Financial Intelligence Unit etc. can be made much easier;
- punish persons found violating the public trust (howbeit adhering to due process).
As can be seen from the above, it’s like we don’t even have a law, since many of the above vices occur in Liberia on a daily basis with absolutely no repercussions. For example the Code of Conduct law was signed into law by President Sirleaf since March 6, 2014. So, since the passage of the law:
- What is the update on state of compliance with the law generally?
- How many complaints from citizens have been heard and decided?
- Why wasn’t the crime of illicit enrichment embedded into the law – as mandated by the UN Convention against Corruption, to which Liberia is a state-party?
- How many officials have been found liable or culpable and what was done to them?
- What is the level of compliance with the obligation to file assets disclosures – from the Legislature, Judiciary, and Executive?
- Who is routinely investigating the assets disclosures to ensure compliance and accuracy of declarations? What has been done to persons intentionally lying on their disclosures?
- Why are ordinary citizens burdened to access the declarations via court order? Why is a court order necessary for a government that professes commitment to transparency and accountability?
- Why is there no known case of sanctions three (3) years after the publication of the law?
- Why is the issue of ombudsman still under discussion, when it should have been a fait accompli upon the passage of the law? Who are those not in favor of the establishment of the Office of Ombudsman?
- How come honorables are functioning in the Legislature (authorizing budgets) and functioning at the Executive branch – implementing county development funds – a broad day butchering of the constitution and Code of Conduct?Why is the Code of Conduct not being utilized to prevent legislators from being shareholders in companies granted government contracts?
As you can see, there are too many questions and not enough answers. When a nethics law fails to answer these fundamental questions, then there is a problem. Is this law just another smokescreen to say okay, well: Liberia also has a Code of Conduct law; when, in fact, the implementation aspects (i.e., transparency and accountability) have been purposely confused? Was this law purposely instituted simply to perpetuate the Forh’s doctrine (you eat, I eat, and let’s screw the people)? The Code of Conduct law, as is the case with many nations, is not necessarily a law for ensuring free and fair elections (though that helps if it does).
It’s to ensure integrity in governance by curbing financial crimes, abuse of office, conflict of interests, discriminatory practices in public service, diversion of government resources, and influence peddling among others.
As long as we continue to see government officials getting rich overnight; as long as we continue to see the abuse of county/provinces development funds by honorables, and presidential appointees; as long as we continue to see nepotism trumping the merit system in filling government jobs; as long as the issue of assets disclosure for public officials is still confused and not being properly implemented; as long as all these malpractices continue to occur at all branches of the Liberian government and at all levels of government, our Code of Conduct law shall remain a joke.
The problem with this kind of joke is that, the Liberian government is the biggest player in our economy; hence,infrastructural development is going to be stymied and the State’s capacity to provide basic social services, decimated. The end is poverty for the vast majority of our people. It’s time we Liberians wise up, as doing otherwise is like willfully choosing to take this nation into the abyss. I guess you can call this [article] a hint to the wise!
March 5, 2017: By WK Freeman, Attorney-at-Law, Monrovia, Liberia