My Heart Bleeds for My Country (Liberia)
By Hun-Bu Tulay
Like Esau, who sold his birthright to Jacob for bread and a bow of lentil stew, it is alleged that the Legislature has sold its birthrights for Brown Envelopes. Oh, what a pity for the country.
This article discusses happenings in our national life today that, in my opinion, should give angst to everyone in Liberia. These include: 1) the dismal performance of the Legislature resulting from the loss of political courage to be truthful. 2) the politicization of the courts, and 3) the public’s reluctance/failure to challenge the system and 4) the Lofa County senate seat declared vacant by the presiding officer of the senate after a winner has be announced by the Election Commission.
Why do the majority of Liberia Government Officials tell a fib to their bosses, particularly the President? This was a question posed to a group of Liberians in mid-February 2022. A friend and I had been invited to attend an occasion in honor of a longtime friend, now an aspirant for the Presidency in 2023. This is an individual; we had known for over forty years. He had invited some other friends. We arrived early and had to wait for the organizers to complete the arrangement before commencing and so we had some time to converse with the others who were gracing the occasion. It was during this period that my friend asked the question. We were approximately fifteen from different professional backgrounds, including lawyers, accountants, economists, social workers, engineers, and the list goes on. We represented a cross-section of Liberians both in county and the diaspora (Europe, Canada, and the United States of America). Qualifications in the group ranged from BSc. to Ph.D. So, you can see that this group represented some of the best the country has.
The members of the group digested the question carefully and one member of the group, whom I later got to know was holder of a master’s degree in political economics, answered as follows, “Because they want to keep their jobs.” After this answer, 80% of the group members supported him. I couldn’t believe what I was hearing.
That night, upon returning from the program, I asked myself the whole night this question. ‘So, is it all about jobs? You lie to the bosses because you want to keep your jobs?” I equally recalled a former Central Bank Executive Governor saying, “Even if I have to lay aside the Central Bank Act to do what the president says, I will do so.” This was the worst statement I had heard from a banker executive, who have had over thirty years’ experience and holds a master’s degree in banking. From that night up to now my heart has been bleeding for my country.
There was a time in this country when the bosses were told the truth, particularly the Presidents. I can remember, when President Tolbert commissioned Edwin Williams as Minister of Finance, he said, “I am the captain of this ship, if I say sail you sail.” In response, Minister Williams said, “I am the chief engineer of the ship, I will resign if I realize that if I obey your order the ship will be wrecked.” Madam Christina Tarr resigned as Justice Minister because of differences between her and her boss. Taiwan Gongoloe resigned because of differences with his boss.
I was even more troubled when I heard on Thursday March 31, 2022, a sitting Senator saying, “the Executive twisted our arms”. This implies that the Executive tells the Legislators what to do. Does this Senator understand the power of the Legislators, particularly the Senators? Maybe he does not know. Does this twisting of arms also apply to the Judiciary? Maybe the answer is yes, because none of the following Chief Justices (James Jenkins Dossen, Frederick E. R. Johnson, Louis Arthur Grimes, James A. A. Pierre Sr., Henry Reed Cooper, James G. Bull, and Johnnie L. Lewis) would have presided over the impeachment trial of former Associate Justice Kabineh Ja’neh).
The constitution of Liberia does not give the President that imperial power. But before going into details on this subject, I would like to state what I told the senior class of Cuttington University many years ago, when I was invited to serve as an inducting officer for the class’ officials. I told them that they should not exercise power that is not given by their constitution and by-laws. I also told the students of the class that they should never allow the officials to exercise power that the constitution and by-laws did not give them. I told them this can only happen if they read and understand the constitution and by-laws and hold the feet of their leadership to the fire.
The Legislators’ arms will only be twisted if they do not understand or know their responsibilities and functions. It may also be because of your limited education or their over greed for wealth, or (simply put) an ingrained roguish character. If a ‘Senator’ can say their arms were twisted, then the country is in serious trouble. Were the legislature arms twisted when they passed the Local Government Act? Because in the act, it states that paramount, clan and town chiefs shall be elected but can be removed by the president for cause. Here, they give the president imperial power. It is a pity, and until such reprobate Senators are replaced, the country has no bright future.
Now let us look at the Liberian Constitution briefly to see where the power lies. Under the Liberian Constitution, the Legislature has no reason to acquiesce to the desire of the Executive Branch regarding a legislation. Moreover, the power to enact laws includes the power to conduct oversight of the Judiciary and the Executive Branches with regards to how the enacted laws and constitution are enforced. The other two Branches do not have oversight responsibility over the Legislature. This implies, the Legislature is the most powerful Branch of the Government. If this is the case, how can the Executive twist the arms of the Legislators as claimed by the Senator referred to earlier? This can only happen if the Legislative Branch allows this to happen. For example, in the 1986 Constitution, Article 56-b states “There shall be elections of Paramount, Clan, and Town Chiefs by the registered voters in their respective localities, to serve for a term of six years. They may be re-elected for another six years. The Legislature shall enact laws to provide for their qualifications as may be required.” Has the Legislature enacted the laws stating the qualifications of Paramount, Clan and Town Chiefs as required by the constitution? The answer to this question is a Big No. So, the President continues to appoint Paramount, Clan, and Town Chiefs because the Legislative Branch has failed to perform its functions thereby giving imperial Powers to the President to appoint Paramount, Clan, and Town Chiefs.
Article 39 of the Constitution reads, “The Legislature shall cause a census of the Republic to be undertaken every ten years.” The last census was held in 2008. The next census was scheduled for 2018. It was not held, and it is now four years late. Can we say that the arm of the Legislature was twisted not to appropriate funds for the census, because it has that power as per the constitution to appropriate funds for the good of the country? Has the Legislature failed this constitutional responsibility? Again, we say, yes.
Article 34 d ii states “No monies shall be drawn from the treasury except in consequence of appropriations made by Legislature enactment and upon warrant of the President; and no coin shall be minted, or currency issued except by the expressed authority of the Legislature. An annual statement and account of the receipt and expenditure of the public monies shall be submitted by the office of President to the Legislature and published once a year.” During the last budget period, it was alleged that US$72 million was appropriated to pay Domestic Debt. Did the Executive Branch (President) tell / present the Legislature the list of those that were paid? For this budget period, the Legislature appropriated US$80 million for payment of Domestic Debt. The Executive was asked later to provide the list of those that would be paid. When the list was presented, the value of those to be paid was US$8 million. Has the Legislature commented on the outstanding amount of US$72.00 million? The answer is a Big No. Where is this money
Article 34 d iii of the Constitution states, “No loans shall be raised by the government on behalf of the Republic or guarantees given for public institutions or authority otherwise than by or under the authority of a Legislative enactment”.
Article 43 reads, “The power to prepare a bill of impeachment is vetted in the house of representatives and the power to try all impeachments is vested in the house of Senate. The Legislature can impeach the President of the Republic.
Article 35 third sentence reads, “The veto may be overridden by the re-passage of such bill, resolution or item thereof by the vote of two-third of the members of each House in which case, it shall be a law.”
Article 54 Reads, “The President shall nominate and with the consent of the Senate appoint and commission (a-f) all high Government officials”. This implies the President needs the approval of the Senate before appointing and commissioning officials of the government. Without the consent of the Senate, the President does not appoint any high officials, including the Chief Justice, Ministers and all other government officials designated to be appointed by the president.
So, which Branch of the Government really has the power to twist arms, the Executive or the Legislative? Maybe the Legislative Branch has become the Esau of the Bible. Like Esau, this Branch may have sold its birthright to the Executive Branch for Brown Envelopes. A birthright is a sacred right to which the first son is entitled. Under our Constitution, the Legislative Branch is the first Branch of the Government, that is why the President goes to the seat of the Legislature once a year to report on the State of the Nation. Because the Legislature fails to exercise the power given it by the Constitution, it might be safe to conclude that it has sold its birthright to the Executive Branch. It is safe, therefore, to say that the current deteriorating conditions in the country are due to the Legislature’s failure to take its constitutional responsibilities seriously. Even the president made a statement on his Nationwide Tour in the Southeast clearly blaming the Legislative Branch for the underdevelopment of country because this branch has the power to appropriate fund for modern roads, hospitals, schools, electricity, water, and sanitation etc. He tossed the Legislators under the bus. We need men and women who know and understand the responsibilities of the Legislature and who have the courage and moral authority to fulfill those responsibilities. My heart bleeds for the country because our Legislators, like Esau, have sold their birthright.
Politicization of the Courts
Liberians have faded memory. Forty-four years ago, it was alleged that a Supermarket Boy by the name of Edward Gberi was killed in the Supermarket on Center Street. Before the Gberi trial could begin, the then Vice President (Bishop Bernie Warner) had a press conference and said the following: “Edward Gberi was killed by the Manager of the Supermarket.” When the case went for trial in the Lower Court, the defendant’s lawyers cross examined the pathologist, Dr. Brewer of the J.F. Kennedy Medical Center, who testified for the Government. The interaction was as follows:
- Question: Mr. Witness, what is the medical history of the deceased?
Answer: The deceased had a medical history. He suffered from Epilepsy.
- Question: Mr. Witness, what is Epilepsy?
Answer: It is a central nervous system (neurological) disorder in which the brain activity becomes abnormal, causing seizures or periods of unusual behavior, sensation and sometimes loss of awareness.
- Question: Mr. Witness, can an individual, who suffers from Epilepsy die from Epilepsy? Answer: Yes.
- Question: Mr. Witness, kindly describe the situation that can result in death.
Answer: Epilepsy can lead to breathing problems. During dangerous seizures, a person may have a pause in breathing, and this can become life threatening; it can lead to the death of the person. This kind of death is called SUDEP for short, and mostly occurs during or after seizures, which can cause people to stop breathing and can trigger dangerous irregular breath rhythms.
Despite all these questions and answers, the Jury brought in a guilty verdict because the Vice President had said earlier that the Manager killed Edward Gberi. As far as the Jury was concerned, the Vice President couldn’t lie. Statements from high profile Government officials or the press can influence Public Opinion. The defendant appealed to the Supreme Court which upon review of the transcript of the lower Court reversed the lower court’s judgement. The Supreme Court reversion was in line with Criminal Laws Practice, which states that the case must be proven beyond reasonable doubt and if there is any doubt or it proven that there might be some other reasons beside what the defendant is indicted, works in the favor of the defendant. The government’s handling of this case contributed to the execution of the Chief Justice on April 22, 1980, following the coup.
The legal principle of Sub Judice, under which cases under judicial consideration are prohibited from public discussion, is intended to prevent this undue public influence on cases that are before the court. The ongoing trial of the ANC Political Leader may suffer the same fate as the Gberi case. Judges’ lives are being put at risk by people who do not understand the law and the issues at bar. Justice Pierre was one of the best jurists in the country, second only to Louise Arthur Grimes. I have read his legal opinions to the President of Liberia when he served as Attorney General, as well as opinions written by him as both Associate Justice and Chief Justice of the Country. I remember seeing him many Saturday afternoons taking a stroll on Broad Street. He was a simple and humble man. He was a man of the laws.
In many countries around the world, including the United States of America, it is generally considered inappropriate to comment publicly on cases that are sub judice. Such can be an offence, leading to contempt of court proceedings. This is particularly true in criminal cases, where publicly discussing cases sub judice may constitute interference with the due process. If this is the case, why is the judge allowing this to happen? If the judge does not stop this, lives might be at risk.
Challenging the system
Since 1955, Liberia’s political leaders have been afraid to challenge the system whenever their rights are violated. For example, in 1985, after the General Elections, Emmet Harmon, who was the Chairman of the National Elections Commission advised General Dr. Samuel Kanyon Doe to appoint a fifty-man committee to tally the ballots. This was an infringement of our Election Laws. It should have been challenged in court, but the political leaders that participated did not have the courage for this challenge. Challenging a system legally in court is not a crime. Why were they afraid? Only God knows that answer.
- Browne Samukai’s Case
The people of Lofa County should challenge the decision of the presiding Officer of the Senate, who declared the seat vacant thereby violating the constitutional rights of Brownie J. Samukai, who had earlier been declared winner of the by-election in Lofa County. Let the Supreme Court rule whether the Senate has the constitutional right to do so. Remember, Samukai was not under the jurisdiction of the Senate. Does the presiding of the Senate have the right to overturn the will of the great people of Lofa? Under Article 37, which reads “In the event of a vacancy in the Legislature caused by death, resignation, expulsion or otherwise, the presiding officer shall within 30 notify the Election Commission thereof.” The first three reasons (death, resignation and expulsion are straightforward. However, the otherwise is not as straightforward because our constitution Article 20 states “No person shall be deprived of life, liberty, security of person, property, privilege or any other right except as an outcome of a hearing judgement consistent with the provisions laid down in the constitution and in accordance with the due process of laws.” The Liberian Constitution like that of the United States of America, there are no constitutional provisions or status that bar or disqualify a convict from serving in the Legislature. It is in this regard that the Supreme Court has never voided the election result or declared the seat vacant. In all the opinions of the high Court, there is nothing that suggested Samukai could not take his seat. The last opinion reads that if Samukai did not pay, he should be committed to prison until he paid. Samukai could settle his disability tomorrow or in two years. To make matters worse, the president suspended the jail sentence for two years and gave Samakai two years to settle his disability.
Matter of Precedence
The Supreme Court’s opinions are based on the Laws of the land, International Laws, the Constitution of the Country, and precedence in the Country or in other countries. In the Samukai case, the Constitution, Laws of the land and international laws do not forbid Samukai from taking the seat. When it comes to precedence, no such case has ever been held in Liberia. But similar cases were adjudicated in the United States of America. For example:
- Mathew Lylon was certificated to participate in a State election in the State of Vermont. Before the election, he was indicted, convicted, and sentenced for six months. The election was held while he was in jail. Mathew Lylon won the election while behind bars. He was given his certificate while in jail and upon serving the term, he was seated.
- Ted Stevens was Senator of Alaska and was running for re-election in 2008. He was certificated as a candidate and later charged and found guilty of felony. His name was not removed from the ballot. He was allowed to complete the process. However, he lost the election. But if he had won, he would have been allowed to serve his term, because the will of the people is supreme. In fact, there is no expressed constitutional disability or disqualification from congress for the conviction of a crime except for treason. The United States of America’s Constitution does not bar an elected member of congress from holding office after conviction in a court and after serving his/her sentence.
- The action of the now raises additional questions:
- The constitutional age requirement for senators in the United States of America is 30 years. Rush Holt ran and won congressional election representing the state of Kentucky. It was later observed that he did not meet the age requirement. A petition was filed to bar him. The petition was dismissed on ground that he should have been stopped before, not after the result of the election. Holt waited to reach the age requirement before he was seated. Similarly, Samukai’s seat cannot be declared vacant, he is working to settle his disability. This will be soon. Samukai should have been stopped before the election and not after he has been declared winner.
- Since the Supreme Court’s opinion is not time-bound, what happens if Samukai pays the money today or two years from now when the seat is declared vacant?
- If two of the defendants died, will the one surviving defendant pay the total sum because it is claimed that they are to jointly pay?
- Which Branch of the Government has the constitutional right to declare the Samukai seat vacant?
Because of precedence, the Supreme Court did not say in all its opinion that Samukai should not be certificated and seated. This is the constitutional crisis I wrote about in my feature “Liberia might face a constitutional crisis (the case of Samukai). The Supreme has always said in its ruling that Samakai should satisfy his disability.
The Liberian people, particularly the politicians, should also test the system. Let them file a petition before the Court requesting the Chairman of the National Elections Commission to stand aside until her case is adjudicated. She cannot be charged and indicted and continue to serve in that position. Equally so is the Minister of Agriculture. The Chairman and the Minister are on trial presently in Court but continue to enjoy the confidence of the President. And the Legislative Branch of the Government sees nothing wrong with this. Maybe the Legislators cannot act because they are equally guilty of similar acts. In fact, our partners have alleged that all three Branches of our Government are corrupt. What hope do you have if you find out that the auditor is corrupt? The Legislative Branch of our Government is the auditor because of the oversight responsibility given by the Constitution. Hence that is why they cannot pass a vote of no confidence on any official in the Executive and the Judiciary Branches.
Until we start testing the system, this will continue, and the country will go nowhere.