My Fellow Liberians
I speak with you today, not as a partisan of Liberty Party, but as a Liberian, who cares about and loves our country.
I wish all a Happy New Year. I Congratulate all the athletes who participated in the recently ended County Meet, but especially Bomi County, for winning the football championship, and Grand Bassa County for winning the women kickball championship.
I pause for a moment in remembrance of the late Charles Johnson, Jr., who passed away a few days ago. He was a son, a friend, and a great supporter of mine. Mrs. Brumskine and I extend our deepest condolence to his wife and children, his mother and the rest of the bereaved family. May his soul rest in peace.
Usually in liberal democracies, a newly elected President is allowed a relatively brief period, during which he or she is given leeway with respect to changes he or she wishes to make. The new President is expected to get a lot done during this “honeymoon period.” In our case, as an elder statesman of our country, I decided to allow President George Manneh Weah and his government a year to get adjusted, before addressing issues of national concern, realizing that the learning curve for our newly elected President would be relatively steep.
Regrettably though, the shortcomings and missteps over the last twelve months have engulfed every aspect of our national life, with the Constitutional check and balance, which characterize a democratic government, in an obvious state of disarray. The allegations of corruption, misuse of public funds, and outright stealing are just small parts of the problems that afflict our nation today; and, the culture of impunity accentuates it all.
But the Executive, headed by the President, is just one of the three branches of government; the Legislature and the Judiciary must also be active players in the exercise of their respective constitutional mandates, if we will ever stop the ill practices of the past, and move our country into the Twenty-First Century.
Then there is the Press—the fourth estate; and, those of us who take pride in referring to ourselves, as “opposition politicians”—a title for which the real meaning is rather elusive. Mr. Benoni Urey has taken the initiative of speaking with former Presidential Candidates to ensure that we come together and collaborate, for which I commend him. I confirmed to Ben, and I say to all Liberians, that I am in full support of working together with others in the interest of our country.
However, to ensure that our collaboration is meaningful, I suggest that opposition politicians work on a plan, with defined goals and objectives for moving our country forward. Our collaboration must not be about jobs for ourselves, whether now or in the future; certainly, we must collaborate because we desire to change the status quo. If not, we would be like others, who have criticized simply because they wanted to share in the spoils of government, but without an idea of what governance is all about.
Comprehensive electoral reform is probably one of the first and most important issue that should be tackled by opposition politicians. How can we engage President Weah, how can we convince members of the Legislature, how can we mobilize our supporters and the electorate at large to understand that the foundation of our democracy rests upon free, fair, and credible elections? We must understand that unless there is a comprehensive electoral reform in Liberia, all our ambitions, public utterances, or condemnation would be exercises in futility. If we would like to have the will of the voters reflected in election results, we must insist on electoral reform before the 2023 Presidential and General Elections.
Three of the many issues to be considered during the electoral reform process would include:
- Political parties recommending individuals who would serve as Commissioners at the National Elections Commission (NEC); with the Commissioners choosing from among themselves, a Chairman.
- Electoral complaints against the NEC should be filed before a court that would be authorized by law to hear and determine such complaints, and not before the NEC. This does not have to entail extra-budgetary expenditure to create a new court. The jurisdiction of an already existing court may be expanded to include the adjudication of such electoral matters.
- During a confidence building period between the NEC and opposition politicians, Voter Registration papers/machines, and ballot papers and boxes, and other sensitive electoral materials should be kept in a sealed placed, with several locks, and the keys thereof assigned to the NEC and an agreed number of representatives of political parties, including the ruling party, respectively. This will ensure that NEC staff, and government officials would not have access to those materials in the absence of representatives of political parties.
Because much has already been said about the allegations of the missing 16 billion Liberian dollars; the US$25 million, which is said to have been disbursed by the government outside of the usual banking channel; and, the unprecedented number of buildings and housing units that are said to have been erected or are being constructed by President Weah; I will not dwell on those issues.
But those issues are not likely to go away, without a comprehensive report from President Weah to the people of Liberia, especially given the nation’s state of abject poverty, and the depressed national economy. The President has the duty to let the people know what has happened to their money; and, I implore the President to do so! The President may consider using his Annual Message to the Nation to explain to Liberians the status of things. The 16 billion Liberian dollars—what happened to the money? The US$25 million—who were the Liberians that benefited from the disbursement of that money? How did the disbursement of the US$25 million to those individuals improve the economy? The President might also want to explain, what may be a mere coincidence, the allegations of the disappearance and/or misuse of public funds, and the construction and/or acquisition of an unprecedented quantity of properties, just as he became President of the nation.
After twelve months in office, it would also be good to know how has the President’s economic policy impacted the live of Liberians? How many Liberians have moved from below the poverty line to the middle class? Under my leadership, as President Pro Tempore of the Liberian Senate, the Liberianization law was amended, increasing the number of businesses that only Liberians can engage in from12 to 26. It would be good for the President to let Liberians know whether his government is enforcing the Liberianization law. And if so, the number of non-Liberians that has been stopped from engaging in businesses that have been set aside by law for only Liberians; and, who are those Liberians who have taken over those set-aside businesses?
The President submitted a Bill to the Legislature to discontinue the tenure of officials of certain agencies of government. We understand that the Bill is now before the Senate. We, therefore, call upon the Senate to ensure that certain of those agencies retain their tenure security. Certainly, the General Auditing Commission (GAC), the National Elections Commission (NEC), the Central Bank of Liberia, the Public Procurement & Concession Commission (PPCC), the Internal Audit Commission, the Land Commission Authority, and, the Independent National Commission on Human Rights, should all enjoy the benefit of tenure security, which is intended to ensure the independence of those agencies from the Presidency.
These agencies were all designed to serve as checks on usual excesses of government, and Liberia’s culture of patronage. Therefore, if those officials of government will serve at the will and pleasure of the President, they would not be independent, and would consequently be unable to effectively perform their official functions.
Given the socio-political culture of our nation, the presidency needs to be democratized, not made more powerful. Therefore, I implore the President Pro Tempore and his colleagues of the Senate to ensure that those agencies of government remain independent and not be subjected to the whims and caprice of the Presidency. By so doing, you will help to strengthen Liberia’s fledgling democracy.
There is also the issue of the Government muzzling the press, to restrain free speech. I refer to a few incidents:
- Patrick Honnah’s Punch FM was denied an Operational Licensed for no apparent reason.
- A group of Legislators have instituted a libel action against Philibert Brown, because of his investigative report on the missing 16 Billion Liberian dollars.
- An official of government spoke of weaponizing the fight against the media, to weed out “the bad elements.”
As public officials and public figures, we have all experienced the venom of the Press, sometimes justifiable; at other times their reporting can be untrue. But as it has been said, “A press that is free to investigate and criticize the government is absolutely essential in a nation that practices self-government and is therefore dependent on an educated and enlightened citizenry.”
Thomas Jefferson, emphasizing the importance of the Press in a democracy, is reported to have said that, “The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers [the press] or newspapers without a government, I should not hesitate a moment to prefer the latter.”
Governance in our country took a downward trend, a nose dive, when His Honor, Associate Justice Kabina Ja’neh, was impeached by the House of Representatives. And I will discuss this governance issue in more details than the earlier issues, because this goes to the heart and soul of the form of government by which we, as a people, have agreed to be governed.
Impeachment disrupts the constitutional process of nomination by the President, confirmation by the Liberian Senate, and appointment/commission by the President. For that reason, the Constitution must be strictly construed, as to impeachment proceedings.
The Honorable Members of the House of Representatives claimed to have impeached Justice Ja’neh pursuant to Article 43 of the Constitution. But the last sentence of that provision of the Constitution states that, “The Legislature shall prescribe the procedure for impeachment proceedings which shall be in conformity with the requirements of due process of law.”
Since 1986, the year Liberia’s current Constitution was adopted, the Legislature has not prescribed the procedure for impeachment proceedings. Notwithstanding, Justice Ja’neh was impeached, without the constitutional framework of enabling rules to be followed by the Legislature. What was the rush to impeach the Justice?
The “Report of the Special Ad Hoc Committee of the House of Representatives to investigate into the [Impeachment] Petition,” stated that “in the absence of specific rules governing impeachment, the Honorable House established a Special Ad Hoc Committee to investigate the Impeachment Petition.” That was a violation of the Constitutional requirement of prescribed procedure for impeachment proceedings!
Even if the House of Representatives had prescribed procedure for impeachment proceedings, without the concurrence of the Senate, they would have still been in violation of the Constitution. The Constitution mandates the Legislature, meaning both Houses, to adopt the procedure for impeachment proceedings. If the Constitution wanted for the Senate and the House of Representatives to adopt separate rules on the procedure for impeachment proceedings, the Constitution would have so stated. For example, Article 38 of the Constitution clearly states that, “Each House shall adopt its own rules of procedure, [and] enforce order,” when it comes to matters other than impeachment proceedings.
But why does the Constitution provide differently when it comes to impeachment proceedings? Because the impeachment proceedings involve two steps: the first step, impeachment, is a formal accusation by the House of Representatives; and, the second step is the impeachment trial by the Senate.
The impeachment of Justice Ja’neh was evidently held behind closed doors, as the public was not privy to the deliberations. Whether there were witnesses who testified as to the factual allegations, or whether the findings of the Special Ad Hoc Committee were all based on hearsay, remain unknown.
When Justice Ja’neh learned that a Petition had been filed for his impeachment, he fled to the Supreme Court to prohibit the House from proceeding with his impeachment because, among other things, the constitutional framework—the enabling rules—had not been adopted by the Legislature. Regrettably, the Supreme Court ruled that Justice Ja’neh’s Petition was premature.
But what was even more significant about the hearing by the Supreme Court of Liberia, was the fact that His Honor, Judge J. Boima Kontoe was designated to join Supreme Court Justices on the bench to hear Justice Ja’neh’s Petition.
Article 67 of the Constitution of the Republic provides that,
The Supreme Court shall comprise of one Chief Justice and four Associate Justice, a majority [meaning 3] of whom shall be deemed competent to transact the business of the Court. If a quorum is not obtained to enable the Court to hear any case, a circuit judge in the order of seniority shall sit as an ad hoc justice of the Supreme Court.
With the presence of a quorum on the bench for hearing the matter, Judge Kontoe should not have been called to hear Justice Ja’neh’s Petition. The Constitution is clear and unambiguous: the most senior circuit judge may sit as an ad hoc justice of the Supreme Court, only “if a quorum is not obtained to enable the Court to hear any case.” The Constitution does not authorize the naming of a circuit judge to break a tie among the justices. Therefore, the seating of Judge Kontoe, as an ad hoc justice of the Supreme Court, when a quorum was present, was unconstitutional. The Supreme Court would, therefore, well serve Liberia’s jurisprudence and the rule of law by recalling that opinion.
Now, let’s look at the five grounds listed by the House of Representatives as the basis for the Bill of Impeachment: (i) Theft of Records; (ii) Filing of a Writ of Prohibition to stop the impeachment proceedings; (iii) Road Fund Case; (iv) the Constance case; and, (v) the case, Ecobank v. Austin Clarke.
Theft of Records. The Associate Justice, not his lawyers who filed the Petition on his behalf, is being charged with theft of property. But given that the Impeachment Petition and the Report of the Special Ad Hoc Committee are all public records, relating to Justice Ja’neh, the use of those records by his lawyers does not constitute theft under the law.
It is an affirmative defense to the crime of theft when the accused believed that he had a claim to the documents involved, which he was entitled to assert in the manner which forms the basis for the charge against him.
Filing of a Writ of Prohibition to stop the Impeachment Proceedings. The Honorable Members of the House of Representatives impeached the Associate Justice because he sought judicial review of the action/proceeding of the House of Representatives and asked the Supreme Court to stop the proceeding because of its unconstitutional basis. The Supreme Court has the constitutional authority to judge all constitutional issues, emanating from whatever authority, including the Legislature. (Article 63, Constitution). It was in 1803 when the U.S. Supreme Court first declared an act of Congress unconstitutional, thus establishing the doctrine of judicial review. The court’s opinion in Marbury v. Madison, is considered one of the foundations of U.S. constitutional law.
Therefore, Justice Ja’neh had the constitutional right to seek review by the Supreme Court; and as such, filing a Petition with the Supreme Court was not an impeachable offense.
Road Fund Case. These are factual allegations, which the House should make public.
The Constance & the Ecobank Cases. As to the judicial cases, it is constitutionally provided that, generally no judicial official should be summoned, arrested, detained, prosecuted or tried civilly or criminally by or at the instance of any person or authority, including the Legislature, 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.
Although the Ad Hoc Committee of the House recommended in its Report that the Ecobank case should not serve as a ground for impeachment, as the Associate Justice was protected by Article 73 of the Constitution, the House proceeded to use the Ecobank case as one the five grounds for impeachment. But even more intriguing is the listing by the House of the Constance case, as a ground for impeaching Associate Justice Ja’neh. The judgment of the Supreme Court in the Constance case was signed by all the Justices, except for Justice Ja’neh who had recused himself. So, if the opinion in the Constance case is a ground for impeachment, then the argument can be made that all the justices who signed the opinion, including the Chief Justice, who is slated to preside over the Senate Impeachment trial, should also be impeached.
Why has Justice Ja’neh been impeached; why is he about to the tried by the Senate, presided over by the Chief Justice of Liberia? I have been unable to discern the reason and would rather not speculate.
But our country is moving too fast down the wrong path! Fortunately, it is not too late; we can arrest the situation and change the course of our country. But that would require the selfless commitment of all of us.
May God bless the nation and save our people!
I thank you.
Charles Walker Brumskine, Esq. is a prominent Liberian corporate lawyer, former president of the Liberian Senate, founder and former political leader and presidential candidate of Liberty Party.