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A Rejoinder to Ambassador Brown’s “Do Not Confirm” and Cllr. Johnson’s “Illegal and Unconstitutionality” Argument

I read Ambassador Lewis G. Brown’s intriguing article titled: “Danger—Do Not Confirm” and the argument he proffered, which I suspect went viral, inarguably triggering a broader legal debate which has now been initiated by the venerated  Cllr. Arthur T.  Johnson before the Honourable  Supreme Court of Liberia in a petition for a writ of prohibition, craving the indulgence of the court to declare “illegal and unconstitutional” the nominations of the Chairman and Co-Chairman of the National Elections Commission (NEC) by the President of the Republic of Liberia, His Excellency George Manneh Weah. 

A debate of this nature, whatever the platform, can sometimes evoke mixed feelings—feelings of joy to debate a very acrimonious issue and find solutions and feelings of political emotions often shrouded in name-calling and other forms of diatribes.

I relish the former and detest the latter because it is a product of intellectual constipation and insalubrious posturing, which is an abomination to our new democratic dispensation that calls for public debates and competitions over ideas rather than trading in insults and other forms of vulgarities.  After almost fifteen(15)  years of active training and practice and membership before several national, international courts, tribunals, and institutions around the world.

I am constantly reminded to stay calm and remain tolerant or receptive of whatever view is expressed primarily in the public space, whether against me or my interest. Since the speaker may not always get it right in advancing his argument or disagreement, it is not good to condemn or outrightly dismiss what is being said.

Instead, s/he should be engaged in a manner that reflects a more organized approach far beyond what is proffered so that those who may have been attracted by what is being said or supportive of whatever wrong he/she is trying to highlight or right,  can have a fair understanding of the debate, only if the truth is reasonably presented.

I come, therefore, not to introduce myself as someone knowing it all, or to tongue-lash or outrightly condemn and dismiss what Ambassador Brown has said, or what Cllr. Johnson says is the law, but to provide a clear path through which all of us can navigate our thoughts and thereby help to remove the controversy that surrounds the nominations of the Chairman and Co-Chairman of the Elections Commission.

This is my contribution to the debate in the public space.

Article 89 of the 1986 Constitution expressly states: The following Autonomous Public Commissions are hereby established: “CIVIL SERVICE COMMISSION, ELECTIONS COMMISSION, and GENERAL AUDITING COMMISSION. The Legislature shall enact laws for the governance of these Commissions and create other agencies as may be necessary for the effective operation of government.”

In the constitutional context, the “autonomy” refers to under Article 89 focuses on the activities and operations of the commissions. The commissions are required to exclusively carry out their respective functions responsibilities without any political influence or interference. Therefore, the framers’ emphasis is on the functions and responsibilities of the Commission and not the personnel appointed thereto.

The staff who head these institutions are political appointees who are subject to the “pleasure power” of the President (Article 56).  This argument although somewhat eerie in the context of what most people would like to hear to suit their interest,  is no doubt  supported by the expression of: “The Legislature shall enact laws for the governance of these Commissions and create other agencies as may be necessary for the effective operation of Government.”

The word “governance” as used in Article 89 refers to how those who will head these commissions will administer their operations or exercise control over them. The Legislature itself is a creature of the 1986 Constitution and, therefore, cannot make any law to impair, set aside, or undermine the full exercise of a constitutional responsibility or power by the other two branches of the Liberian government.

For instance, Article 56 of the 1986 Constitution does not limit the sweeping powers of the President over and above all government officials whether appointed under Article 54 or not primarily in the executive branch. I can confidently say that the exercise of such a “pleasure power” only excludes elected public officials. To understand this argument, let’s revert to the wordings of Article 56 of the 1986 Constitution. It expressly states: “All cabinet ministers, deputy and assistant cabinet ministers, ambassadors, ministers and consuls, superintendents of counties and other government officials, both military and civilian, appointed by the President pursuant to this Constitution shall hold their offices at the pleasure of the President.”

The truth is, the appointees of the Elections Commission, General Auditing Commission, and Civil Service Commission are not covered under Article 54 of the President’s appointing powers. Still, they are construed and treated as “government officials.” A government official, by definition, is one who holds an office in or works for a government department.

Isn’t it the fact then that the Elections Commission, General Auditing Commission, and Civil Service Commission are government agencies under Article 89 of the 1986 Constitution for which the President appoints their heads?  Reading from the definition of a government official, is it not prudent to say the constitutional phrase: “…and other government officials…” as used in Article 56 also covers members of the Elections Commission, General Auditing Commission, and Civil Service Commission, and therefore, they are subject to the “pleasure power” of the President? 

The legal and constitutional basis for this argument is the phrase: … and other government officials… appointed by the President pursuant to this Constitution shall hold their offices at the “pleasure” of the President.” The constitutional expression: “…pursuant to this Constitution…” means government officials that are appointed and commissioned by the President shall hold their offices at his/her pleasure.

Further, section 2.9 of the New Elections Law, refers to the autonomy of the Commission to be independent of any branch of the Liberian government. This provision does not apply to the commissioners; instead, it focuses explicitly on the powers and duties of the office or the institution itself and not on the holder thereof.  Section 2. 9    expressly states: “The Commission, as an autonomous agency of government, independent of any branch of the government, shall have the following powers and duties: (a) To administer and enforce all laws relative to the conduct of elections throughout the Republic of Liberia (b) To organize the office of the Commission in a manner as may be necessary and practicable for the effective operation of the Commission (c) To propose to the National Legislature for enactment, an amendment to, and repeal of, any provision of the Election Law. (d) To give accreditation to, and register all political parties and independent candidates who meet the minimum registrations laid down by the Commission.

By this authority, they may exercise political franchise under relevant provisions of the Constitution…” When interpreting a constitutional or statutory phrase, one must first look at three basic principles of interpretation in international law, namely, (1) the text and actual wording, (2) the purpose, and (3) the intent. The keywords used in section 2.9 of the New Elections Law are (1) powers, and (2) duties. So, we are inclined by the strength of our argument and without fear,   to define these words precisely as they relate to their legislative intent and purpose and their subsequent usage and application according to section 2.9 of the New Elections Law.

Section 2.9 of the New Elections Law refers to “power,” and according to thefreedictionary.com, power is defined as the ability to act or produce an effect; the capacity or ability to direct or influence the behaviour of others or the course of events. The autonomy of the Commission under section 2.9 refers to the exclusive and unfettered exercise of the Commission’s power to (a) administer and enforce all laws relative to the conduct of elections throughout the Republic of Liberia (b) To organize the office of the Commission in a manner as may be necessary and practicable for the effective operation of the Commission (c) To propose to the National Legislature for enactment, an amendment to, and repeal of, any provision of the Election Law. (d) To give accreditation to, and register all political parties and independent candidates who meet the minimum registrations laid down by the Commission. By this authority, they may exercise political franchise under relevant provisions of the Constitution…”.

The Commission by that provision also uses both inherent and derivative powers, mainly by its conduct as a commission and by authority derived from the ACT creating the Commission and the New Elections Law. The constitutional autonomy of the Commission forbids the President or any branch of the government from directing, assuming exercising, or controlling its activities and operations. A duty, on the other hand, is defined as a legal obligation that entails mandatory conduct or performance; a task or action that one is required to perform as part of one’s job; a moral or legal obligation or a responsibility. The duties of both the chairman and co-chairman of the Commission, now Chairwoman and Co-Chairwoman, ‘whatever,’ are specifically provided for and defined under sections 2.10 and 2.11 of the New Elections Law. Here again, the statutory emphasis is on the office and not necessarily on the person(s) occupying the Commission.

Section 2.2 of the New Elections Law refers to the appointment and tenure of the commissioners. It states: “The President shall nominate and, with the consent of the Senate, appoint and commission the Chairman, Co-chairman and other Members of the Commission, and who shall hold their office during good behavior for a period of seven (7) years effective as of the date of their Commission; they may, however, be removed upon proof of misconduct.

The phrase: “The President shall nominate and, with the consent of the Senate, appoint and commission the Chairman, Co-chairman and other Members of the Commission…” when reading together with the constitutional phrase: “…and other government officials…” as used in Article 56, undoubtedly subjects all commissioners heading autonomous agencies created under Article 89 to the “pleasure power” of the President because they are appointed pursuant to the 1986 Constitution.

The sanctity of our organic law is defined under Article 2 of the 1986 Constitution, which states: “This Constitution is the supreme and fundamental law of Liberia and its provisions shall have binding force and effect on all authorities and persons throughout the Republic. Any laws, treaties, statutes, decrees, customs, and regulations found to be inconsistent with it shall, to the extent of the inconsistency, be void and of no legal effect. The Supreme Court, pursuant to its power of judicial review, is empowered to declare any inconsistent laws unconstitutional.” The key expression of Article 2 refers to the “…binding force and effect of the 1986 Constitution on all authorities and persons throughout the Republic.”

The Election commissioners who are regarded as “government officials” appointed by the President do not live or work on planet Mars. Instead, they are government officials, duly appointed by the President as part of his sovereign constitutional responsibility as the Head of government (Article 50). Since Article 2 instructs that the 1986 Constitution is the supreme and fundamental law of Liberia and its provisions shall have binding force and effect on all authorities and persons throughout the Republic, then it is fair to say the pleasure power of Article 56 extends to all commissioners appointed by the President as “government officials”.

That said,  and relying heavily on Article 2 of the 1986 Constitution, any legislative enactment or “any laws, treaties   statutes, decrees, customs and regulations found to be inconsistent with it shall, to the extent of the inconsistency, be void and of no legal effect.” Section 2.2 of the New Elections Law refers to the duration within which a commissioner may serve and may be removed upon proven cause consistent with due process, but that certainly is not a constitutional buffer or inhibition against the full exercise of the “pleasure power granted the President under Article 56.

If the argument is, and which I seriously doubt is that the legislative intent and purpose of Section 2.2 of the New Election Law is to inhibit, prohibit or restrict the full exercise of the “pleasure power” granted the President to be exercised over “all government officials” appointed pursuant to the 1986 Constitution, I would humbly bow and say let the Supreme Court as the final arbiter of all constitutional matters (Article 66) decide.  Until then, I do not only disagree with Ambassador Brown and Cllr. Johnson, but   I am also inclined to hold these views sacred on the altar of truth in the public space. If you also disagree, come out of your shells of insults and name-calling and join the debate by putting pen to paper!

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Cllr. Sayma Cephus

Counselor Cephus is an internationally acclaimed counsel certified by the International Criminal Court(ICC)(The Hague), European Criminal Bar Association(ECBA), Association of Defense Counsel Practicing Before International Criminal Court and Tribunals(ADC-ICT)(The Hague), International Law Association(ILA)(London, UK), Association of European Abogados(AEA)(Madrid), European Fraud and Complaisance Lawyers(EFCL)(London, UK) & African Court on Human and Peoples’ Rights(ACHPR), based in Arusha, Tanzania.
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