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Liberia: Impeachment Proceedings Against 3 Associate Justices Have No Legal Basis

President Sirleaf (above) and the other two branches of the Liberian Government

WHY the So-called Impeachment Proceedings by The House Against Three Associate Justices of The Supreme Court of Liberia Have No Legal Basis

Comment and Analysis 

The nation is being held hostage by what seems a rather queer constitutional crisis, deeply shrouded in blackmail and extortion, and is being perpetrated by some members of the National Legislature to impeach three distinguished Associate Justices of the Supreme Court of Liberia, namely His Honor Kabineh M. Ja’neh, Her Honor Madame Jamesetta H. Wollokolie and His Honor Professor Mr. Justice Philip A.Z. Banks, III. No doubt, there is ill-tempered on both sides, with each clinging to the 1986 Constitution as the source of its authority, but beyond the noise and the flexing of muscles lies a rather interesting question, and that is, whether there is any legitimate constitutional basis for the possible impeachment of the three associate justices by the Honorable House of Representatives. To address this question, it is important first and foremost to look at the history of the crisis, the authority or jurisdiction of the House to impeach the three justices, and then the admissibility of the petition, its merits and prayer within the context of Article 71 of the 1986 Constitution in order to be able to arrive at the conclusion whether there is any reason to give credence to the so-called impeachment brouhaha.

Chief Justice Korkpor (center) flanked from left to right, Justices Youn, Janeh, Wolokollie and Banks

History of the crisis:

On the 3rd day of August, 2017 the Plenary of the House of Representatives, allegedly acting pursuant to article 43 of the 1986 Constitution, received a complaint from their colleagues, Honorable H. Dan Morais, Senator from Maryland County, Honorable Peter S. Coleman, Senator from Grand Kru County, Honorable Jim Tornola, Senator from Margibi County, Honorable Numene Bartewkwa, Representative from Grand Kru County, and Honorable George S. Mulbah, Representative from Bong County, respectively, seeking to impeach three Associates Justice of the Honorable Supreme Court of Liberia, namely, His Honor Kabineh M. Ja’neh, Her Honor Madame Jamesetta H. Wollokolie and His Honor Professor Mr. Justice Philip A.Z. Banks, III. The petition accuses His Honor Kabineh Ja’neh, Her Honor Jamesetta Wollokolie and His Honor Philip A.Z. Banks, III, of allegedly “violating their oaths of office by engaging in misconduct, gross breach of duty, and by exhibiting clear inability to perform the functions of their offices as associate justices, and the Petitioners claimed that the petition arises out of the most recent decisions of the Supreme Court, in which these three Associate Justices, by “their opinions and judgments in cases involving the Code of Conduct enacted by the legislature in May 2014, sought and did effectively usurp the power and authority of the legislature to make law and thereby made ineffective and virtually null and void the Code of Conduct.” The petition concluded that the three justices equated the two (2) to three (3) years requirement regime for resignation from public office prior to elections to a mere “resignation before filing an application for certification with the National Elections Commission”, and by so doing, the Supreme Court has made a new law and undermined the effectiveness of the Code of Conduct… Simply stated, the Supreme Court has usurped the functions of powers of the legislature to make law.” The House of Representatives therefore mandated its Judiciary Committee to summon forthwith the within named justices to show cause, if any, why they cannot be impeached. The writ of summons was widely circulated in both the print and electronic through the country.

However, a day after the issuance and service of the writ of summons on the Honorable Supreme Court of Liberia, a separate and distinct branch of the Liberian Government, with co-equal but coordinate powers to that of the National legislature, the Justice and Public Interest Consortium Africa(JUPICA), a public right litigator and defender of constitutional order and the rule of law together with Honorable Counselor Edwin Kla Martin, a private citizen of the Republic of Liberia filed a petition for a Writ of Prohibition to restrain, prohibit and inhibit members of the House’s Judiciary Committee to refrain, from all and any further actions and activities regarding the alleged impeachment proceedings against the three justices pending the final determination of the petition, principally in fear of the fact that the alleged illegal and unconstitutional actions and activities of the House of Representatives and its Judiciary Committee, if left unattended, will grossly impede and rendered ineffective the rights of the 1st Petitioner as a public litigator and public protector to operate freely, defend the rights of the vulnerable and victims of society, organize public forums and debates, challenge the actions and activities of public officials throughout the country before courts of law or the Honorable Supreme Court of Liberia, and that the actions of the House will be an erosion of the doctrine of the separation of powers under Article 3 of the 1986 Constitution, among others. And for the 2nd Petitioner, its petition is triggered fear and the fact that the purported impeachment proceedings present a clear and present danger to the judicial independence, credibility, and stability–it will be a travesty of constitutional order and a recipe for chaos, civil disobedience and public unrest, if allowed to continue and this could jeopardize his own chances of being declared a winner as a representative candidate or the chances of any candidate in the forthcoming October 2017 elections, whose victory may be validated by a Supreme Court ruling in the event of any contest arising therefrom, and whatever judgment, ruling and decision delivered by the Supreme Court could be considered a ground for possible impeachment by the losing party. The 1st and 2nd petitioners are therefore impelled by reasons stated inter alia, to bring this petition to inhibit, restrain, prevent and stop the within named respondents to refrain from all actions and activities regarding the purported impeachment proceedings against the three justice pending the full determination of the petition.

It must be noted that because Justice Banks who is currently presiding in Chambers by assignment was one of those named in the writ of summons for impeachment by the House, the issuance of the writ and the temporary restraining orders thereto, were ordered issued by Her Honor Madame Justice Sie-A-Nyene Yuoh. The Respondents were required to file their returns to the writ on August 19, 2017, and up to and including the commencement of this argument, they are yet to do so.

Discussion/Argument
The first question for discussion is whether or not a justice or a judge of the Liberian judiciary may be impeached on account of an opinion, ruling or a judgment delivered in a matter as in the instant case? We answer this first question in the NEGATIVE. And to support this argument let us revert to Article 73 of the 1986 Constitution which expressly states: “No judicial official shall be summoned, arrested, detained, prosecuted or tried civilly or criminally by or at the instance of any person or authority on account of judicial opinions rendered or expressed, judicial statements made and judicial acts done in the course of a trial in open court or in chambers, except for treason or other felonies, misdemeanor or breach of the peace. Statements made and acts done by such officials in the course of a judicial proceeding shall be privileged, and, subject to the above qualification, no such statement made or acts done shall be admissible into evidence against them at any trial or proceeding.”

The petitioners in their petition alleged that these three Associate Justices, by “their opinions and judgments in cases involving the Code of Conduct enacted by the legislature in May 2014, sought and did effectively usurp the power and authority of the legislature to make law and thereby made ineffective and virtually null and void the Code of Conduct.” Further, they argued that the three justices (in their rulings) equated the two (2) to three (3) years requirement regime for resignation from public office prior to elections to a mere “resignation before filing an application for certification with the National Elections Commission”, and by so doing, the Supreme Court has made a new law and undermined the effectiveness of the Code of Conduct.” The alleged conduct complained of by the Petitioners has to do with rulings, decisions and judgments that were delivered in cases brought before the Supreme Court on the Code of Conduct. The only legitimate reason provided by the petitioners, and which is not one of the grounds for impeachment of justices, is that the justices rendered decisions, rulings and judgments in ways that are not favorable to them or that gave new managing to the Code of Conduct. What must be stated however, is that the object and purpose of this argument is not whether or not the Honorable House of Representatives has the constitutional authority to prepare impeachment bills under the 1986 Constitution. No, far from it. The real question is whether or not the reasons provided by the House of Representatives as grounds for its purported impeachment proceedings are consistent with the powers granted it under Article 43 and by extension, the allegations contained in the so-called petition fall within the province of Article 71 of the 1986 Constitution. Of course, the answer is a resounding “No!” However, to be able to put the argument into proper context, let us look at the authority to initiate impeachment proceedings and the legal basis for such action.

Liberia House of Representatives votes to impeach three justices of the Supreme Court

Article 43 of the 1986 specifically states: “The power to prepare a bill of impeachment is vested solely in the House of Representatives, and the power to try all impeachments is vested solely in the Senate. When the President, Vice President or an Associate Justice is to be tried, the Chief Justice shall preside; when the Chief Justice or a judge of a subordinate court of record is to be tried, the President of the Senate shall preside. No person shall be impeached but by the concurrence of two-thirds of the total membership of the Senate. Judgements in such cases shall not extend beyond removal from office and disqualification to hold public office in the Republic; but the party may be tried at law for the same offense. The Legislature shall prescribe the procedure for impeachment proceedings which shall be in conformity with the requirements of due process of law.”

Article 71 of the 1986 Constitution expressly states: “The Chief Justice and Associates Justices of the Supreme Court and the judges of subordinate courts of record shall hold office during good behavior. They may be removed upon impeachment and conviction by the Legislature based on proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery or other infamous crimes.”

What must be noted however that is the use of the constitutional phrase: “The power to prepare a bill of impeachment is vested in the House of Representatives…” is not the same as the authority to issue writ of summons to anyone to show cause why he/she cannot be impeach or the commencement of impeachment proceedings. The power and authority to summon a would-be candidate for impeachment is not vested in the House of Representatives by law. Article 43 of the 1986 Constitution further states: “…and the power to try all impeachments is vested solely in the Senate” meaning since the authority to try all impeachments is vested in the Senate, it then the Senate through the Presiding officer, which in this case is the Chief Justice, that has the authority to issue a writ of summons and not the House of Representatives as it being misconstrued. The House of Representatives under Article 43 of the 1986 Constitution is not vested with the power to impeach, instead, that exclusive power to try all impeachments including those against judges and justices of the Supreme Court of Liberia for cause consistent with Article 71 is EXCLISIVELY VESTED IN THE HONORABLE LIBERIAN SENATE. When it comes to the interpretation of constitutional and statutory provisions or protocols or conventions in international law, there are three basic elements of interpretation that courts of law must apply, and namely they are (1) the actual text or wording of the statute or constitutional provision, (2) the intent of the framers, and (3) the purpose for that provision.

From the actual wording of the constitutional phrase: “The power to prepare a bill of impeachment is vested solely in the House of Representatives…” it is clear that the framers of the 1986 Constitution did not give the House of Representatives the power to summon anyone to show cause why he/she cannot be impeached or the authority to commence impeachment proceedings, instead, they gave the House the power to prepare bills of impeachment. Besides, bills of impeachment are statutory laws which must be enacted under the same rules and procedures that are adopted in the passage of any law by the two separate and distinct Houses consistent with Articles 29 and 34(j) of the 1986 Constitution. Article 34(j) gives the legislature the authority “to establish various categories of criminal offenses and provide for the punishment thereof.” This means a bill of impeachment as a legislative enactment must contain all of the prescriptions and sanctions of law and must be jointly passed by both houses. Article 43 of the `1986 Constitution further states: “The Legislature shall prescribe the procedure for impeachment proceedings which shall be in conformity with the requirements of due process of law.” The Constitution did not say the House of Representatives shall be the sole authority to exclusively prescribe the procedure for impeachment proceedings as it being wrongly construed by the House’ Judiciary Committee. Therefore, the House of Representatives’ issuance of a writ of summons to three justices of the Supreme Court to appear before its Judiciary Committee and show cause why they cannot be impeached is illegal and unconstitutional and does not fall within the ambit of the power granted the House under Article 43 of the 1986 Constitution.

This brings us to the intent and purpose of the constitutional restrictions placed on the House of Representatives only to prepare of Bill of Impeachments. The framers in our view, did not see the wisdom to give or create a scenario of an “accuser being his own judge” over the accused and this was done specifically to engender confidence into an impeachment proceeding. Based on this argument, the House of Representatives lacks the constitutional authority or jurisdiction and competence to assume any power not exclusively delegated to it by the 1986 Constitution, let along summoning the three justices of the Supreme Court, namely His Honor Kabineh Mohammed Ja’neh, Her Honor, Madame Justice Jamesetta H. Wollokolie, His Honor Professor Mr. Justice Philip A.Z. Banks, III, to show cause why they cannot be impeached. That said, the House of Representatives or its Judiciary Committee lacks the legal capacity or standing to commence any impeachment proceedings under Article 43 of the 1986 Constitution.

This argument is firmly rooted in and supported by the constitutional doctrine of the separation of powers, as in keeping with Article 3 of the 1986 Constitution, which in addition to identifying and restricting the powers of each branch of the Liberian Government, imposes upon each branch, the exclusive power to adopt its own rules of procedure for its own governance, and forbids the expansion or extension of the exercise of the powers or rules of each branch to the other two branches of the government. To understand this argument, let us use the Liberian judiciary as a test case. At the Supreme Court of Liberia, there’s a Professional Code of Ethics for judges and lawyers, meaning, only lawyers and judges can be tried or subjected to such ethical standards. If a private citizen contemns the court or a judge, he/she will be not tried by the use of the Professional Code of Ethics that is meant for lawyers and judges. This applies to the House of Representatives, and that is, any passage or adoption of a rule by the House which is not a bill of impeachment as contemplated under Article 43 of the 1986, and which did not meet the concurrence of the Honorable Liberian Senate to be the prescription for the rules of impeachment, is constitutionally void ab initio, and is of no force and effect. The House therefore cannot use or attempt to subject three justices of the Honorable Supreme Court of Liberia to its own rules under the pretext of impeachment. The House has no jurisdiction to surreptitiously turn its own rules into a bill of impeachment and thereby proceed to unduly create an unnecessary constitutional crisis only intended to hijack and arrogate unto itself false powers not delegated upon by the 1986 Constitution.

I Admissibility
The next key question is whether the allegations contained in the purported petition for impeachment are, as a matter of law, admissible and should be given credence. We answer this question in the NEGATIVE. A careful review of the complaint shows the following:
1. ABU BANA KAMARA v. NEC decided July_2017

1. Harrison Karnwea v. NEC decided on July 20,_2017

2. Selena Mappy Polson case decided March 3, 2016
To address the question of admissibility of the petition, let us look at Article 21(a) of the 1986 Constitution, which expressly states: “No person shall be made subject to any law or punishment which was not in effect at the time of commission of an offense, nor shall the Legislature enact any bill of attainder or ex post facto law.” The alleged acts complained of by the Petitioners in their petition reportedly occurred in the aforesaid cases in which the Supreme Court delivered at diverse times alleged adverse opinions inconsistent with the two(2) to three(3) years requirement regime for resignation from public office prior to elections and allegedly equated that to “a mere resignation before filing an application for certification with the National Elections Commission… the Supreme Court has made a new law and undermined the effectiveness of the Code of Conduct… Simply stated, the Supreme Court has usurped the functions of powers of the legislature to make law.” Now, here is the most interesting constitutional drama that exposes the ignorance of the proponents of the so-called impeachment argument, and that is the rules by the House of Representatives which is the basis of its action were drafted after the petition was filed by the Petitioner on August 3, 2017, about several days or weeks after the judgments and rulings were delivered in the aforesaid cases. This makes petitioners’ petition absolutely inadmissible within the contemplation of Article 21(a) of the 1986 Constitution. What is amazing is that the petition seeks to address alleged violations that were not considered impeachable offenses or constitutional violations prior to the inception of the House’s rules. Under the principle of expo facto law, as in keeping with Article 21(a) of the 1986 Constitution, the object and purpose of violations under Liberian law is prospective and not retrospective or retroactive. So assuming arguendo that what the House alleges fall within the realm of Article 71, which is not the case, same will not be a violation because there is no bill of impeachment in place that has been duly passed by the legislature, hence, we fail to see the grounds for the admissibility of the purported petition as a matter of law.

The Merits of the Petition
The question on the merits of the House’s petition is whether or not the allegations contain in the petition for impeachment against the three justices are consistent with the grounds provided for the impeachment of judges or justices under Article 71 of the 1986 Constitution. To begin the discussion, we are again constrained to answer this question in the NEGATIVE. Article 71 of the 1986 Constitution states: “The Chief Justice and Associates Justices of the Supreme Court and the judges of subordinate courts of record shall hold office during good behavior. They may be removed upon impeachment and conviction by the Legislature based on proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery or other infamous crimes.”

The constitutional interpretation of the phrase:”… based on proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery or other infamous crimes…”, in our understanding and consistent with Article 20(a) of the 1986 Constitution would undoubtedly require that an investigation be conducted in which the would-be accused would be given his/her “day in court” to answer to the charges levied against him/her before impeachment. The question then is, has there been any investigation against any of the within named justices to establish “… proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery or other infamous crimes consistent with Article 20(a) of the 1986 Constitution?” If yes, where are the minutes of the proceedings and who were the parties? Further, is it the intent and purpose of Article 71 of the 1986 Constitution that a ruling, decision or judgment of a judge or justices on a matter be construed or equated to “proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery or other infamous crimes?”

We are impelled by common sense to say No, and here is the reason why. Article 2 of the 1986 Constitution 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.” Under Article 2 of the 1986 Constitution of Liberia, the Honorable Supreme Court of Liberia is vested with four powers, namely (1) judiciary supremacy power, judicial review, judicial interpretation and judiciary declaratory power, meaning the Supreme Court is the only “supreme” authority in the land to review, interpret and declare any act, treaty or law unconstitutional and give meaning to any statutory or constitutional provision, and the exercise of any of those powers is sacrosanct. The sanctity of the authority of the Supreme Court to review, dismiss, set aside, modify, recall its earlier opinion on the issue of law, interpret or consider such action final or conclusive is consistent with Article 66 of the 1986 Constitution, which states: “The Supreme Court shall be final arbiter of constitutional issues and shall exercise final appellate jurisdiction in all cases whether emanating from courts of record, courts not of record, administrative agencies, autonomous agencies or any other authority, both as to law and fact except cases involving ambassadors, ministers, or cases in which a country is a party. In all such cases, the Supreme Court shall exercise original jurisdiction. The Legislature shall make no law nor create any exceptions as would deprive the Supreme Court of any of the powers granted herein.”

Article 66 exclusively makes the Supreme Court of Liberia the final arbiter of all constitutional issues, all remedial processes, all factual and legal issues contain in all appealable matters and the legislature is prohibited from making or creating any exceptions as would deprive the Supreme Court of any of the powers, which includes the authority to remain ‘supreme’ throughout the territoriality of the Republic of Liberia, and to become the sole and final arbiter and interpret the laws of Liberia, review and declare any laws or treaties and conventions unconstitutional. The Supreme Court enjoys the exercise of these powers under Article 2; and any interpretation, review or declaration made thereto or thereunder is final and conclusive and cannot be a subject of review or sanctions because Article 73 of the 1986 Constitution says so.  Article 73 of the 1986 Constitution states: “No judicial official shall be summoned, arrested, detained, prosecuted or tried civilly or criminally by or at the instance of any person or authority on account of judicial opinions rendered or expressed, judicial statements made and judicial acts done in the course of a trial in open court or in chambers, except for treason or other felonies, misdemeanor or breach of the peace. Statements made and acts done by such officials in the course of a judicial proceeding shall be privileged, and, subject to the above qualification, no such statement made or acts done shall be admissible into evidence against them at any trial or proceeding.” Both articles 2 and 66 of the 1986 Constitution define the authority of the Honorable Supreme Court of Liberia into two power blocs— the doctrine of judicial review and the doctrine of judicial supremacy. The doctrine of judicial review gives the Supreme Court of Liberia the power and authority to review, interpret and declare any legislation, treaty, convention that is inconsistent with the principles laid down in the 1986 unconstitutional and that interpretation or declaration under Article 2 will be final and conclusive under Article 66.

The judicial review power and supremacy of the Supreme Court is recorded in the famous constitutional in the United States of America, notably, the Marbury v. Madison case, is an excellent example but the most authoritative and reliable examples of the final arbiter powers are recorded in two the landmarked cases of the Honorable Supreme Court of Liberia which were both presented before the Court by this author. They are the: MPC v. NEC decided 2011 which specifically dealt with the residency clause of Article 52(c ) of the 1986 Constitution, in which the Supreme Court ruled that the ten residency clause is CONSECUTIVE IMMEDIATELY PRIOR TO ELECTIONS and not and ACCUMLATIVE; and JUPICA v. NEC, decided in 2014, where the Supreme Court squarely placed the power and authority to determine new elections dates in the hands of the national legislature in event of a force majeure affecting a due election date. This was a shrewd and brilliant interpretation by the Honorable Supreme Court of Liberia of Article 1 of the 1986 Constitution where it was misconstrued that the power to do so rests exclusively in the hands of the Liberian people through a national referendum.

For instance, in the Madison v. Marbury case, the US Supreme Court ruled that a certain judicial appointment made by President Adams at the close of his term was valid, but the prospective judge — Mr. Marbury — did not have a way to enforce the decision, specifically holding that the section of the act providing for a remedy was unconstitutional, since the act improperly granted original jurisdiction to the Supreme Court. That ruling settled the argument. What is obvious in our jurisprudence is that the Supreme Court of Liberia is fons et origo of all constitutional issues including but not limited to giving meaning and effect to the interpretation of constitutional matters brought before it, and has jealousy guided against the encroachment or abrogation of such powers since its inception in 1847. The interpretations in the MPC v. NEC and JUPICA v. NEC are conclusive and final and require no further meaning. As a further test of its judicial supremacy, the Supreme Court of Liberia frowned upon the multiplicity of lawsuits as against public policy and held in the case: “YO– USEF MAHMOUD, v. HIS HONOUR J. HENRIC PEARSON, MOHAMMED JALLOH et al., syl.5, that “According to public policy, there must be an end to litigation. It has been held that to require courts to consider and reconsider cases at the will of litigants would deprive the courts of that stability which is necessary in the administration of justice.” That opinion settled the question of the multiplicity of lawsuits involving the same parties, same subject matter and same issues.

Prayer/relief
In law as in mathematics, an excellent application of the formula with better understanding of the facts always produce an esteemed result. In the current case, the petitioners do not understand that the power of the House of Representatives regarding impeachment of public officials is limited to the preparation of impeachment bills under Article 71 of the 1986 Constitution. And so a prayer triggered by mischief or ignorance or both for relief to the wrong forum presided over by people who do not know the limitations of their powers is like building a house on quick sands on the bank of river against torrential rains. The most pathetic thing about the so-called petition is that both the petitioners and the House of Representatives appear not to know or understand the actual text and wording, or intent and purpose of Article 43 or what an impeachment bill is. Be that as it may, the so-called petitioners and the House of Representatives must be seen and regarded as the blind leading another group of blind noisily!

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Sayma Julius Syrenius Cephus

Counselor Sayma 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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