Tenure Positions Unconstitutional –– Part II

Tenured positions in Liberia:  Liberia’s third branch of government

By: Cllr. Sayma Syrenius Cephus

The executive  power or authority that is conferred upon the president to exclusively administered the affairs of the Liberian  State as its Chief Administrator(Head of Government) pursuant to  Article 50 of the 1986 Constitution is further strengthened by or is  manifestly enhanced under  Article 2 of that sacred and organic document  which declares that the 1986  Constitution is the supreme and fundamental law of Liberia and that its provisions have binding force and effect on all authorities, including all of the branches of the government and all persons throughout the Republic and further   proclaims that “any acts, treaties, statutes, decrees, customs and regulations found to be inconsistent with the Constitution shall, to the extent of the inconsistency, be void and of no effect; and that the Supreme Court, pursuant to its power of judicial review, is empowered to declare any inconsistent laws unconstitutional.”

The binding effect and supremacy of any Article of the 1986 Constitution over any statutory provision have no limitation on all authorities including all branches of the government and all persons residing within the Republic of Liberia. That being the law extant, it is absolutely inconceivable if not constitutionally nauseating to say the least, for anyone to entertain any argument that supports the limitations of the uninhibited exercise of the unfettered power granted the President under Article 54 of the 1986 Constitution to appoint all cabinet ministers and other public officials who will serve at his/her pleasure, and to remove them without cause (Article 56).

Photo courtesy: Frontpage Africa –Liberia’s tenured appointees. They are Weeks, Tamba, Kollie, and others.

The 1986 Constitution does not provide for a “parallel cabinet” or a “residual or carry-over” cabinet or public officials from one administration to another. There is no law to support the transitioning of the remnant of public officials from one administration to another under the pretext of having tenure positions. The framers of the 1986 Constitution did not contemplate “parallel cabinet or a horde of residual public officials transitioning from one administration to another using legislative enactment to restrict the appointing powers granted the president under Article 54.   To do the contrary, will no doubt amount to restricting the appointing power of the president and will, therefore, be grossly unconstitutional, and a violation of Article 54 which gives the president the power to appoint all cabinet ministers and other public officials who will serve at his/her pleasure and to dismiss them without cause.

Tenured appointments/jobs in Liberia are like Amoeba.

Further, the argument about tenure positions seems in all fairness, a part of the grand design or a political ploy by opponents of the CDC-led Government to unduly limit the appointing powers of the President and undermine his constitutional authority to appoint public officials of his own choosing. The presence of purported public officials in the government who have not been appointed by the President under the pretext of “tenure” constitutes flagrant erosion and abrogation of the authority of the President under Article 50 as Head of Government and Chief Administrator or political supervisor of the  Government of Liberia, and has the constitutional power to nominate and with the consent of the Honorable Liberian Senate  appoint all cabinet ministers and public officials (Article 54) and to dismiss them without cause under his/her pleasure power(Article 56).

Consequently, for any tenure position to be effective or to have constitutional legitimacy, the CDC-led Government under the leadership of President George Manneh Weah, will, if it deems necessary and acceptable because of confidence, must reappoint all public officials pursuant Article 54 who will serve at its pleasure as in keeping with Article 56.  Moreover, the decision to do so is exclusively the constitutional prerogative of the President, and if he elects, which is part of his/her discretionary power,   not to reappoint or not to work with certain public officials who he/she has not appointed consistent with Article 54 to serve at his pleasure under Article 56,   at his own choosing, then the holders of that tenure positions have no legitimacy, and therefore cease to exist unless reappointed by the President.

However, it must be noted that there’s no conflict between any of the statutes creating the GAC, LRA, NASSCORP, CBL and other agencies and the 1986 Constitution. For instance, Article 3 of the 1986 Constitution sets the basis for the doctrine of the separation of constitutional power between and amongst the three branches of the Liberian Government and the Honorable Supreme Court of Liberian has succinctly defined and interpreted such powers in a number of landmarked cases such as Jitco Inc. v. Sesay et al.[1990] LRSC 5; , 36 LLR 695 (1990};  In re the Constitutionality of the Act of the Legislature of Liberia, Approved January 20, 1914, entitled “An Act Providing for Uniform Rules for the Practice in all the Circuit Courts of this Republic”[1914] LRSC 5; , (2 LLR 157), decided as far back as 1915;Jedah, Boyah et al. v. Horace[1916] LRSC 12; , 2 LLR 265(1916);  Jarkoonne v. Akoi, 36 LLR 392 (1989}.

In each of these cases, the Honorable Supreme Court has held that no one branch of the three branches of the Liberian Government can usurp or arrogate unto itself the functions of the other two branches.  In summary, Article 3 defines the constitutional strictures within which each of the branches of the Liberian government operates.  Therefore, a legislative enactment whether tenure-driven or not cannot abrogate or subordinate the sovereign constitutional power of the President to appoint cabinet ministers and other public officials (Article54), delegate his authority to public officials of his own choosing as Head of Government (Article 50) and ensure that all appointed public officials and cabinet ministers serve as his pleasure (Article 56).

The existence of public officials occupying positions that require or demand appointments but do not have such appointments or have not been appointed by the CEDC-led Government is a gross violation of Article 54 of the 1986 Constitution which expressly states: “The President shall nominate and, with the consent of the Senate, appoint and commission (a). Cabinet ministers, deputy and assistant cabinet ministers; (b).  Ambassadors, ministers, consuls; and (c).  the Chief Justice and Associate Justice of the Supreme Court and judges of subordinate courts; (d).  Superintendents, other county officials and officials of other political subdivisions; (e). Members of the military from the rank of lieutenant or its equivalent and above; and (f) marshals, deputy marshals, and sheriffs.

It also must be noted that the constitutional exception in the appointment of public officials only applies to Article 54(c) which refers to the Chief Justice and Associate Justices of the Supreme Court and judges of subordinate courts. The reason is that under a normal constitutional process their tenures are measured or calculated at age 70. This means a judge, or a justice shall be retired at age 70. That said, let’s shift our focus elsewhere in this debate.

Further, in my opinion, there is another problem that involves the non-application and implementation of a key constitutional provision. For the records, there are two constitutional courts under the 1986 Constitution, namely (1) the Justice of the Peace Court—Article 55, and the Honorable Supreme Court of Liberia Article 65. The Constitution provides that every Justice of the Peace or Notary Public shall be appointed after every two years. In the case of the Justice of the Peace or Notary Public, their tenures if expired at the inception of a new constitutional government, their existence in practice, in my opinion, becomes a “constitutional holdover” and is constitutionally legitimate pending new appointments by the incoming administration.

The distinction between Articles 55, where justices of the peace shall hold their offices for a period of two years and 65 which instructs that the continuity of tenure of a judge or justice is conditioned upon good behavior is that the former can be dismissed for cause by the president (Article 55) while the latter can be removed for cause by impeachment (Article 71). The relevance of this argument is that the justices of the peace position are the only constitutionally transient position from one administration to another in term of the change of government through a democratic process.

Besides, if the constitutional exercise of the duties of the President is impaired by a horde of statutory restrictions or prohibitions as in the case of the LRA, GAC, NASSCORP and others, to the extent that the appointees occupying these positions are allowed to stay on and continue to function, how will the  CDC-led Government or the President determine that public officials at NASSCORP, Central Bank of Liberia(CBL), LTA, GAC, LRA, and others serve at his pleasure, if he is not the one who appointed them?

How will the President build confidence and trust in them if they were not selected exclusively at his own choosing, pleasure and will? How will the President determine that they are faithful and loyal to him and that he the President faithfully executed Article 54 with the consent of the legislature when he is not the one who nominates, appoints and commission these officials? How will these officials serve at his pleasure when they derive the source of their power and authority from another president other than President Weah? Think about this very seriously.

The Supreme Court of Liberia in analyzing the power and authority vested in the sovereign President of  the Republic of Liberia held in the landmarked case: “Wiles v Simpson [1944] LRSC 24; 8 LLR 362 (1944) (17 November 1944)” as follows: “One man constitutes all there is of that, and upon him the Constitution has placed many great and important duties, and these duties are constant. He does not sit in authority at stated intervals like Congress and the courts. There is no recess in the discharge of his official duties.

From the time he takes the oath until his office expires there is a continuity of official obligations and duties, sacredly and solemnly imposed upon him by the Constitution. Anything which impairs his usefulness in the discharge of his duties, however slight, to that extent impairs the operation of the Government. If in any way he is rendered incapable of performing his duties, to that extent the Government is weakened.” With this highlighted quotation from the Honorable Supreme Court of Liberia, it is unconstitutional in my personal view, for any argument to support the adherence to the application and implementation of statutory laws that created the GAC, LACC, LRA, NASSCORP, CBL and gave them tenure positions at the expense of Articles 54 and 56 of the 1986 Constitution.

In the Wiles v. Simpson case, the Supreme Court further held: “Hence it is that only when acting as the agent of the President in a matter in which discretion is by the Constitution or by law lodged in the President and in him alone, is the Secretary of State or another cabinet officer not subject to the ordinary process of the courts. For were it otherwise, the act of the agent might involve the principal, and were that action adjudged a violation of law the legal consequences that might flow therefrom might, as a logical sequence, end in the detention of the President, which would be in violation of the Constitution both in fact as well as in spirit….”

The judicial phrase of “For were it otherwise, the act of the agent might involve the principal, and were that action adjudged a violation of law the legal consequences that might flow therefrom might, as a logical sequence, end in the detention of the President…” incontestably implies that the principal who happens to be President can only account for the conduct of public officials appointed by him and only he alone because they ought to be or are his agents.  For instance, what legal justification can President Weah provide for the alleged abuse of power or misuse of public office by public officials in the GAC, LRA, LACC or CBL?

About the Author:

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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