An Unconstitutional And Destabilizing Report: Why The TRC's Final Report Should Not Be Implemented In Its Entirety As Recommended By Mr. Goah
By Johannes Zogbay Zlahn
In an article titled "The TRC Final Report: An Open Letter To The Political Party Leaders in Liberia," which was published on the Perspective Website on June 19, 2012, Mr. Bernard Gbayee Goah ("Mr. Goah") argues, among other things, as follows:
"The TRC final report is a synthesized document, a shared history if you will, that allow us to have a deep understanding of our past; it gives insight into the perspectives of those [who] supported the destruction of our country and took the lives of so many as well as those who were victims in one way or another who have been left to tell our story.
“The TRC final recommendations about reconciliation, rehabilitation, justice, and reparation purposely minimized the magnitude of crimes committed during the war by some of our current leaders, in an effort to open the door of acceptance to the implementation of the TRC. Yet, some of our current leaders have refused to move forward with the TRC’s recommendations, choosing greed and pride over national interests. Of course, this attitude got Liberia in this mess in the first place.
“Implementing the TRC’s recommendation is the only step our President can take to prove to the Liberian people that she puts the country first above everything else. Unfortunately, she is instead inciting the Liberian populace to come against the TRC report as well as refuse to honor it in its entirety. This is in stark contrast to what she alluded to at the inception of the TRC, which was that she whole heartedly supported its establishment, its continuity, and even suggested that she would respect the recommendations and implementation. Since the TRC’s recommendations would exclude her from Liberian politics, it is now considered by her and her administration unacceptable, and against the peace and stability of Liberia.
“The TRC report would not destabilize Liberia, the act of not implementing it will. The TRC offers very specific guidance on how to stabilize our nation through truth, justice, and reconciliation instead of retaliation. The TRC report outlines ways in which we can cultivate a culture of human rights and build structures to ensure that the atrocities of the past do not reoccur. It also stresses the importance of healing as a nation through continued dialogue in an attempt to create one history and deter people from expressing their pain through violence.”
Preliminarily, I agree with Mr. Goah that the revelations contained in the TRC’s Final Report should serve as guideposts for how we administer the affairs of our nation and that serious efforts must be made by the leadership of our nation to reconcile our people so that the vices of the past which led us down the destructive path we took for more than 14 years can be avoided in the future. I, however, disagree with Mr. Goah’s conclusion that implementing the TRC’s recommendations in its entirety “would not destabilize Liberia, the act of not implementing it will.” In this discussion of the TRC Act and the TRC’s Final Report, I will demonstrate that the recommendations contained in the TRC’s Final Report should not be implemented verbatim because the TRC Act and the TRC’s Final Report produced pursuant to the TRC Act are inconsistent with, and repugnant to, the Constitution of Liberia (1986) and are therefore unconstitutional. Constitutional challenges to statutes and the acts or omissions of governments are of two kinds. The first is a facial challenge, which challenges the constitutionality of a particular statute, governmental action or omission as written, taken or omitted. Hence, if the Liberian Legislature were to enact a law that prevents the courts from granting the writ of habeas corpus, such law would, on its face or as written, be deemed unconstitutional. The second kind of constitutional challenge is a challenge to a statute, governmental action or omission as applied to a particular individual or situation. Hence, if the Liberian Government acts or omits to act pursuant to the provisions of a law that is otherwise consistent with the Constitution but the Government’s action or failure to act infringes upon a citizen’s constitutional rights, the citizen may challenge the constitutionality of that law as applied to him or her.
Part 1 of this Article is this introduction; part 2 gives a brief historical background of the Liberian civil war; Part 3 discusses the facial unconstitutionality of the TRC Act; Part 4 discusses the unconstitutionality of the TRC Act as applied to the persons and entities recommended by the TRC for prosecution and/or public sanctions; and Part 5 discusses the failure of the TRC Act to comply with relevant provisions of the Comprehensive Peace Agreement, upon which the TRC Act is based.
But first, there is a saying that “it is better for 99 guilty persons to go free than for one innocent person to be convicted.” This statement is the basis upon which democratic countries craft constitutions in order to limit the excesses of government and to safeguard the rights and liberties of their citizens. The constitution being the basis upon which the government exercises the powers granted by the people, the government must operate within the confines of the constitution or risk the condemnation of the courts and the people. Therefore, the acts or omissions of a democratic government must comport with and be confined to the basic tenets of the constitution from which it derives its powers as enshrined by the people. This is true whether the government is dealing with some of society’s worst miscreants or with some of society’s most revered citizens. For without this limitation on the powers of the government, the exercise and enjoyment of basic rights and liberties of every citizen is left to the whim of governmental functionaries; in which case, those rights and liberties may be abused by the government without recourse or redress.
The basic rights and liberties guaranteed by a constitution cannot and should not be disregarded or ignored simply because those affected are considered some of the worst people a society has ever produced; nor should those rights and liberties be upheld or respected only because those affected are considered some of the best people a society has ever produced. Instead, those rights and liberties must be upheld and respected regardless of the individuals concerned or the circumstances involved. Granted, the TRC Act was extra-constitutionally enacted; but its implementation occurred during the restoration of the Constitution and should therefore have been carried out in accordance with the basic tenets of the Constitution. I thought it necessary to make these points because the issues discussed in this article are issues on which reasonable minds not only can disagree, but they are emotionally charged issues that require sober analysis and digestion before taking a particular side. In writing this article, therefore, I am fully aware of the divergent emotions and reactions it is likely to evoke. Members of my reading audience are therefore free to levy whatever criticism they deem necessary and to take issues with my position as they deem appropriate. My only hope is that the debate remains civil regardless of one’s position on any or all of the issues discussed in this article. Having said this, let’s briefly review the historical background of the Liberian civil war, followed by a discussion of specific provisions of the TRC Act and the TRC’s “Final Report” to see why I believe they violate various articles of the Liberian Constitution.
2. BRIEF HISTORICAL BACKGROUND OF THE LIBERIAN CIVIL WAR
On April 12, 1980, seventeen enlisted men and non-commissioned officers of the Armed Forces of Liberia, led by then Master Sergeant Samuel Kanyon Doe, stormed the Liberian Executive Mansion, assassinated President William R. Tolbert, Jr., and declared themselves the new leaders of the country; thus ending nearly 133 years of Americo-Liberian rule and ushered in an unprecedented history of the modern nation-state wherein a group of semi-literate enlisted men and non-commissioned officers of an army had ever taken complete control of the leadership of a country. No sooner had the new “leaders” taken control of the machineries of government when they began to self-destruct by eliminating each other until their leader, the later Master Sergeant and former President of Liberia, Samuel Kanyon Doe, and a few of them, including the late General Thomas Quiwonkpa, remained at the helm of political and military powers in the country.
Despite the fact that Doe and Quiwonkpa were best of friends prior to their takeover of the machineries of government, a rift developed between them within a few years after the takeover; relations between Doe and Quiwonkpa deteriorated to the point where Quiwonkpa resigned or was forced to resign his position as Commanding General of the Armed Forces of Liberia. The conflict between Doe and Quiwonkpa came to a climax when, in 1985, Quiwonkpa and a few men attempted to overthrow Doe. The coup failed, and the reprisals allegedly carried out against the Gios and Manos by the Doe Administration made Doe unpopular, especially among the Gios and Manos.
Given the rift between the Krahns led by Doe and the Gios and Manos whose de facto leader was killed during the attempted coup in 1985, some Liberians devised a plan to violently overthrow Doe. That plan was successfully executed by Charles Taylor on December 24, 1989, when his National Patriotic Front of Liberia invaded Liberia from the Ivory Coast, setting in motion a civil war that would last for nearly 14 years and involve several warring factions and the armed forces of various countries in Africa, led by Nigeria. The civil war led to an almost complete destruction of the country and ended in 2003, with the departure of Charles Taylor from the country and into exile in Nigeria.
During the civil war, several peace agreements were signed by the warring parties, including the Comprehensive Peace Agreement (CPA), signed at Accra, Ghana, on 18 August 2003. Among the various provisions of the CPA was Article XIII, which called for the establishment of the Truth and Reconciliation Commission. Article XIII of the CPA provides as follows:
“1 A Truth and Reconciliation Commission shall be established to provide a forum that will address issues of impunity, as well as an opportunity for both the victims and perpetrators of human rights violations to share their experiences, in order to get a clear picture of the past to facilitate genuine healing and reconciliation.
“2. In the spirit of national reconciliation, the Commission shall deal with the root causes of the crises in Liberia, including human rights violations.
“3. This Commission shall, among other things, recommend measures to be taken for the rehabilitation of victims of human rights violations.
“4. Membership of the Commission shall be drawn from a cross-section of Liberian society. The parties request that the International Community provide the necessary and technical support for the operations of the Commission.”
In apparent compliance with Article XIII of the CPA, the National Transitional Legislative Assembly (NTLA) of Liberia enacted an Act establishing the Truth and Reconciliation Commission (TRC). However, rather than limiting the authority of the TRC to the intents and purposes of Article XIII of the CPA, as stated above, the NTLA endowed the TRC with the power not only to investigate the root causes of the war and reconcile the war-weary people of the country, but also to recommend individuals for prosecution; a situation never intended by the parties to the CPA. Moreover, the membership of the TRC failed to comply with subsection 4 of Article XIII of the CPA, which requires that membership of the TRC be drawn from a cross-section of the Liberian society. The NTLA’s action, coupled with the failure of the TRC to comply with subsection 4 of Article XIII of the CPA, set the stage for the TRC’s acts and omissions discussed below.
3. FACIAL UNCONSTITUTIONALITY OF TRC ACT
A careful scrutiny of the TRC Act reveals that the Act is facially unconstitutional in many respects. As fully set forth below, some sections of the Act confer on members of the TRC the same immunities and privileges as are constitutionally conferred on members of the Legislature, the President, Vice President, the Chief Justice and Associate Justices of the Supreme Court and judges of subordinate courts. In other sections of the Act, the TRC is given the power to recommend individuals for prosecution, including individuals who were lured by the TRC into believing that without suffering adverse consequences, they could confess the commission of atrocities during the civil war in an effort to reconcile with alleged victims. In other sections, also, the Act seems to confer legislative and judicial powers on the TRC. Having said this, I shall now examine specific sections of the TRC Act and the provisions of the Constitution I believe are violated by those sections of the TRC Act.
A. Violation of Articles 3, 34, 42, 65, 73 and 91 of the Constitution
Article VI, Section 22 of the TRC Act, page 10, provides in relevant part that “[m]embers of the TRC, its agents, employees and staff shall…be immune from civil or criminal sanctions by virtue of statements made, actions taken in rightful pursuit of their work or for work of the TRC.” It is my contention that Article VI, Section 22 of the TRC Act constitutes a violation of Article 3 of the Constitution, which provides: “Liberia is a unitary sovereign state divided into counties for administrative purposes. The form of government is Republican with three separate coordinate branches: the Legislative, the Executive and the Judiciary. Consistent with the principles of separation of powers and checks and balances, no person holding office in one of these branches shall hold office in or exercise any of the powers assigned to either of the other two branches except as otherwise provided in this Constitution; and no person holding office in one of the said branches shall serve on any autonomous public agency.” In clear contravention of Article 3 of the Constitution, which limits the branches of the Liberian Government to three and Articles 42, 61 and 73 of the Constitution, which specify the officials of the Liberian Government who are immune from civil or criminal sanctions for the performance of their official duties, Article VI, Section 22 of the TRC Act created another group of public servants who shall be immune from civil and criminal sanctions for the performance of their official duties. Therefore, by granting members of the TRC immunity from civil or criminal sanctions, as granted members of the Legislature pursuant to Article 42 of the Constitution, the President pursuant to Article 61 of the Constitution and the Chief Justice and Associate Justices of the Supreme Court and judges of subordinate courts pursuant to Article 73 of the Constitution, Article VI, Section 22 of the TRC Act in essence created a fourth branch of the Government of Liberia., in contravention of Article 91 of the Constitution which requires that such changes must be made through amendment of the Constitution.
Article VI, Section 22 of the TRC Act also constitutes a violation of Article 34 of the Constitution, which grants certain powers to the Legislature. In enacting Article VI, Section 22 of the TRC Act, the NTLA exceeded the powers granted by Article 34 of the Constitution; because nowhere in the enumerated powers granted the Legislature by Article 34 is there any mention of the power to enact laws that immunize or protect non-judicial officers, civil servants or other employees of the Government from prosecution, as provided for the President, Justices of the Supreme Court and judges of subordinate courts. The power to enact Article VI, Section 22 of the TRC Act is not, and cannot be, implied in Article 34 of the Constitution, because subsection (l) of Article 34, which is the reinforcing or general clause of the Legislature’s powers, cannot be construed as implying that the NTLA had the power it purported to have exercised in enacting Article VI, Section 22 of the TRC Act. Article 34(l) only grants the Legislature the power to make laws that are necessary to execute, implement or effectuate the powers granted by the Constitution and not the power to create additional classes of officials who should be immunized or protected from prosecution for their official acts or omissions, as provided for the holders of the positions specifically named in the Constitution. Article 34(l) provides: “The Legislature shall have the power…to make all other laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the Republic, or in any department or officer thereof.” Further, not only does this blanket grant of immunity by Article VI, Section 22 of the TRC Act deny citizens whose rights may have been illegally infringed by members of the TRC the right to seek legal redress, but it also denies the courts the power to pass on the question of whether or not a citizen’s rights have been violated and is therefore entitled to legal redress. Under our law, the only entity with the power to decide the rights and liabilities of citizens is the Judiciary; not the Legislature or the Executive. Accordingly, Article VI, Section 22 of the TRC Act is inconsistent with the Constitution, and therefore unconstitutional, pursuant to the Supremacy Clause, Article 2, of the Constitution.
Because the NTLA elevated the status of the TRC and its Commissioners to the status of the Supreme Court of Liberia and the Chief Justice and Associate Justices of the Supreme Court of Liberia, the TRC concluded that it is a “quasi judicial” forum , and on the basis of that conclusion, adjudged certain individuals guilty of committing various crimes; recommended some for prosecution; and debarred others from holding public offices for thirty (30) years. These actions on the part of the TRC have no support in the Constitution, as the TRC is not a judicial forum and therefore cannot decide the guilt or innocence of anyone.
While it is true that the Legislature has the power to create inferior courts pursuant to Article 34(e) of the Constitution and to exercise other powers enumerated in Article 34 of the Constitution, I submit and contend that the Legislature lacks the constitutional authority to create a court or entity that is on par with the Honorable Supreme Court of Liberia, in the absence of a constitutional amendment. Specifically, the Legislature has the power to create subordinate courts, but lacks the power to create a commission or any entity and imbue it with judicial power, in the absence of a constitutional amendment. No such power is expressly or by necessary implication granted the Legislature by the Constitution. Accordingly, insofar as the TRC Act created and granted such powers to the TRC, it is repugnant to Article 65 of the Constitution, which provides in relevant part that: “The judicial power of the Republic shall be vested in the Supreme Court and such subordinate courts as the Legislature may from time to time establish…” Not being a subordinate court within the meaning of Article 65 of the Constitution, the NTLA acted without constitutional authority when it granted the TRC judicial power.
B. Violation of Article 29 of the Constitution
On page 332 of the TRC’s Final Report, it is stated: “The TRC determines that the TRC Act provides that all TRC recommendations are authoritative, binding and have the weight of law serving as a quasi-judicial directive that must be implemented by the Government of Liberia and the National Legislature.” Assuming that this determination is accurate, the grant of such power by the NTLA is an unconstitutional delegation of legislative power in violation of Article 29 of the Constitution, which states in relevant part: “The legislative power of the Republic shall be vested in the Legislature of Liberia which shall consist of two separate houses: A Senate and a House of Representatives, both of which must pass on all legislations…” Not being one of the houses referenced in the Constitution, the TRC has no power to make laws “that must be implemented by the Government of Liberia and the National Legislature.”
C. Violation of Article 21(h) of the Constitution
Article VII, Section 26 of the TRC Act provides in relevant part that: “The TRC shall enjoy and exercise such functions and powers as are relevant for the realization of its mandates. Its mandates and functions shall include, but not be limited to...(f) [h]elping restore the human dignity of victims and promote reconciliation by providing an opportunity for victims, witnesses, and others to give an account of the violations and abuses suffered and for perpetrators to relate their experiences in an environment conducive to constructive interchange between victims and perpetrators…” And subsection (j) in relevant part provides: “Making recommendations to the Head of State with regard to: (iv) [t]he need to hold prosecution in particular cases as the TRC deems necessary.” Article VII, Section 26, subsections (f) and (j)(iv) are violative of Article 21(h) of the Constitution, in that they lured alleged perpetrators of violence into giving evidence against themselves and therefore incriminating themselves by confessing their activities during the war, believing that in the spirit of reconciliation and as provided by the TRC Act, they and alleged victims could discuss their respective experiences during the war, without adverse consequences for alleged perpetrators and without suspecting that the TRC would subsequently recommend them (alleged perpetrators of violence) for prosecution based on their confessions. The TRC Act therefore compelled alleged perpetrators to incriminate themselves in violation of the constitutional protection against self-incrimination, as contained in Article 21 of the Constitution, which states in relevant part that “[n]o person shall…(h) be compelled to furnish evidence against himself and he shall be presumed innocent until the contrary is proved beyond a reasonable doubt…”
4. UNCONSTITUTIONAL APPLICATION OF THE TRC ACT
Even assuming, without conceding, that the TRC Act is not facially unconstitutional, it is unconstitutional, as applied by the TRC, to the individuals and entities named in the TRC’s Final Report. In its Final Report, the TRC recommended several individuals and entities for prosecution and/or public sanctions but failed to recommend similarly situated individuals and entities for prosecution and/or public sanctions, in violation of the Equal Protection Claus of the Constitution. Additionally, the TRC, not being an adjudicative agency and therefore having no judicial powers, could not determine the guilt or innocence of any individual or entity. Notwithstanding this lack of judicial power, the TRC debarred certain individuals from holding public offices for thirty (30) years, for their alleged financing of warring factions and armed groups, also in violation of the Due Process Clause of the Constitution.
A. Selective justice/disparate treatment of similarly situated personsheads of state and leaders of warring factions and other institutions
In its Final Report, the TRC alleged officials of government, dating back to the Tubman Administration, committed violations of human rights, murders, economic and other crimes. The TRC also alleged in its Final Report that “all armed groups whether affiliated with warring factions or the Government of Liberia are responsible for the commission of human rights violations including violations of international humanitarian law, international human rights law, war crimes and egregious domestic laws violations.” And concluded that: “These groups include: NPFL, LURD, Liberia Peace Council, Militia, ULIMO, Vigilantes, Lofa Defense Force, Liberia National Police, Special Operations Division, Revolutionary United Front (RUF), Special Anti-terrorist Unit (SATU) Special Security Service, Black Beret, National Security Agency, National Bureau of Investigation, Criminal Investigation Division and Kamajors.”
Also, in its Final Report, the TRC stated: “The TRC determines that all Governments of the Republic of Liberia from 1847 especially from 1979 to 2003, are responsible for the commission of those human rights violations including violations of international humanitarian law, international human rights law, war crimes and egregious domestic laws violations of Liberia and economic crimes for the actions of their functionaries acting in the name of the said government and for the sheer neglect of the population and the failure to provide protection for its citizens.”
Notwithstanding the scathing indictment, by the TRC, of all “Governments of the Republic of Liberia from 1847 especially from 1979 to 2003,” the TRC failed and/or refused to adjudge all heads of the Governments of Liberia and armed groups during the relevant period guilty of committing the enumerated crimes; or to recommend all such persons for prosecution or public sanctions, but rather selectively, disparately, and discriminatorily recommended, for prosecution and/or public sanctions, Charles G. Taylor, leader of the NPFL, former President of Liberia and former Commander-in-Chief of the Armed Forces of Liberia; Prince Y. Johnson, leader of INPFL; the late Roosevelt Johnson, leader of ULIMO & ULIMO-J; Alhaji G.V. Kromah, leader of ULIMO & ULIMO-K; George Boley, leader of LPC; Thomas Yaya Nimely, leader of MODEL; Sekou Damante Konneh, leader of LURD; and the late Francois Massaquoi, leader of LDF. The TRC also recommended for prosecution or public sanctions, Ellen Johnson-Sirleaf, Harry Yuan, Moses Z. Blah, Kabineh Ja’neh, Ignatius Clay, Grace Minor, Richard Flomo, Martina Johnson, Sando Johnson, Clarence L. Simpson, Byron Tarr, Randall Cooper, Allen Brown, Sr., Ethelbert Cooper, Dew Mayson, Laveli Supuwood, Wilfred Clarke, Edward Massaquoi, Moses Jarbo, Charles Bennie, Edward Slanger, Tom Woewiyu, John T, Richardson, Isaac Nyenabo, and others too numerous to be named herein. In recommending the above-named individuals for prosecution and/or public sanctions, the TRC conveniently, intentionally and unconstitutionally failed and/or refused to recommend for prosecution, other punishment or public sanctions, Amos Sawyer, President, Interim Government of National Unity, Republic of Liberia and Commander-in-Chief of the Black Beret and the Armed Forces of Liberia; the late Samuel Kanyon Doe, former President of Liberia and Commander-in-Chief of the Armed Forces of Liberia, the late William R. Tolbert, Jr., former President of Liberia and Commander-in-Chief of the Armed Forces of Liberia, on whose behalf the Liberia National Police and contingents of the Guinean Army carried out the massacre of scores of unarmed civilians on April 14, 1979, Florence Chenoweth, former Minister of Agriculture, whose arrogance and/or incompetence, according to the TRC, created the situation which led to the April 14, 1979 rice riot that resulted in the deaths of scores of unarmed civilians, and Oliver Bright, former Minister of Justice, whose “shoot-to-kill” order was viciously carried out by the Liberia National Police under the Directorship of Varney Dempster, and other similarly situated officials too numerous to be named herein.
In recommending certain heads of government and warring factions as well as other individuals for prosecution, but conveniently and intentionally failing and refusing to recommend similarly situated individuals for prosecution and/or public sanctions, the TRC acted arbitrarily and capriciously, in violation of the Equal Protection Clause, Article 11(d), of the Liberian Constitution, which provides: “All persons are equal before the law and are therefore entitled to the equal protection of the law.” Article 11(d) of the Constitution demands that all similarly situated persons should be treated equally by any arm of the Government of Liberia, including the TRC, which was created by an Act of the NTLA and is therefore an arm of the Government of Liberia within the meaning of Liberian constitutional and statutory laws. Assuming therefore, that the TRC Act granted the TRC the authority to recommend alleged perpetrators of violence for prosecution and other public sanctions the TRC abused and hence, exceeded that authority by its selective and discriminatory actions described herein.
The TRC’s Mandate, as contained in Article IV, pages 4-6 of the TRC Act, granted the TRC no discretion as to the classes of individuals and entities whose acts or omissions occurred during the relevant period the TRC must investigate or recommend for prosecution, other punishment or public sanctions. Instead, the TRC’s Mandate required the TRC to investigate the acts or omissions of all individuals and entities covered or contemplated by the TRC Act. Accordingly, the TRC abused and hence, exceeded its Mandate by its actions described above. Therefore, as applied to the individuals referenced above, the TRC Act and the TRC’s Final Report produced pursuant to the TRC Act constitute a violation of the Equal Protection Clause, Article 11(d), of the Constitution and are therefore unconstitutional.
In a long line of cases, the Honorable Supreme Court of Liberia has emphatically stated that all persons residing in Liberia are equal before the law and must be treated equally regardless of whether they are Liberians or foreigners. See Adnam Hassan v. Hon. McDonald J. Krakue, 20 LLR 653, 659 (1971); M.H. Nasser, et al. v. Minister of Justice, et al., 25 LLR 382, 390 (1976); Feleku v. Republic of Liberia, 189, 192 (1982). The failure, therefore, of the TRC to treat all alleged perpetrators of violence and/or crimes equally contravened this constitutional requirement and rendered its action unconstitutional.
B. Unconstitutional establishment of “The Extraordinary Criminal Court for Liberia,” in violation of Articles 20(b) 34(e), 54(c), 65 and 66 of the Constitution
Purporting to act pursuant to the authority granted by the TRC Act, the TRC not only recommended the creation of an “Extraordinary Criminal Court for Liberia,” but it also drafted the court’s enabling legislation; the trial and appellate procedures governing trials and appeals in the court; conferred trial and appellate jurisdictions on the court; and required that judges of the court must be appointed by the President of Liberia, the Secretary General of the United Nations, the President of the European Union and the President/Chairman of the African Union. Further, the TRC required the citizens of Liberia, through their Government, to fund the court so created. According to the enabling legislation of the proposed court:
“1. The Extraordinary Criminal Court for Liberia and the national courts [including the Supreme Court of Liberia] shall have concurrent jurisdiction; except with respect to GVHR and SHLV [in which the proposed court will presumably exercise exclusive jurisdiction].
“2. The Extraordinary Criminal Court for Liberia shall have primacy over the national courts [including the Supreme Court of Liberia], and may at any time request a national court to defer to its jurisdiction and competence in accordance with the Statute and Rules of Evidence and Procedure of the Court…” Further, the enabling legislation of the proposed court provides that “The judgment of the Court shall be final…”
I strongly believe and contend that this act on the part of the TRC, i.e., the creation of the Extraordinary Criminal Court for Liberia; the method of appointing judges of the court; the appellate jurisdiction conferred on the court; the supremacy of the court over existing Liberian Courts; and the requirement that Liberian citizens, through their Government, must fund the court, constitutes violations of Article 20(b) of the Constitution, which provides in relevant part that “[t]he right of an appeal from a judgment, decree, decision or ruling of any court or administrative board or agency, except that of the Supreme Court, shall be inviolable…,” Article 34 of the Constitution, which states that “[t]he Legislature shall have the power …“(e) [t]o constitute courts inferior to the Supreme Court, including Circuit Courts, Claims Courts and such other Courts with such prescribed jurisdictional powers as may be deemed necessary for the proper administration of justice throughout the Republic…;” Article 54 of the Constitution, which states that “[t]he President shall nominate and, with the consent of the Senate, appoint and commission…(c) the Chief Justice and Associate Justices of the Supreme Court and judges of subordinate courts…;” Article 65 of the Constitution, which provides in relevant part that…;“[j]udgments of the Supreme Court shall be final and binding and shall not be subject to review by any other branch of Government;” and Article 66 of the Constitution, which states in relevant part that “[t]he Supreme Court shall be the final arbiter of all constitutional issues and shall exercise final appellate jurisdiction in all cases…”
Under the Constitution, an appellate court sharing concurrent original and/or appellate jurisdiction with the Supreme Court of Liberia or having original and/or appellate jurisdiction that is superior to the original and/or appellate jurisdiction of the Supreme Court of Liberia cannot be created in the Republic of Liberia in the absence of a constitutional amendment. Hence, the TRC, in establishing an “Extraordinary Criminal Court for Liberia” with concurrent and superior original and appellate jurisdiction with and to the Supreme Court of Liberia, acted arbitrarily and capriciously, and thereby abused and exceeded the authority granted by the TRC Act.
Assuming that the TRC Act expressly or by necessary implication granted the TRC the power to create an “Extraordinary Criminal Court for Liberia,” such grant of authority constituted an unconstitutional delegation of legislative power; is inconsistent with, and repugnant to, the Constitution. Under our Constitution, only the Legislature has the power to create courts that are inferior to the Supreme Court. Consistent with this power, the Legislature lacks the constitutional authority to create a court or entity that is on par with, or that shares concurrent jurisdiction with, or superior jurisdiction to, the Supreme Court of Liberia, in the absence of a constitutional amendment. Therefore, the proposed court and the source of the power permitting the creation of said court are “void and of no legal effect” pursuant to the Supremacy Clause, Article 2, of the Constitution.
Further, the subordination of the Supreme Court of Liberia to the “Extraordinary Criminal Court for Liberia” diminishes the sovereignty of the country, especially since the court is being extra-constitutionally created and requires foreign heads of institutions to make appointments to the court. Can anyone seriously argue that a nation is independent which does not control its judicial system?
C. Adjudication of the individuals named in the TRC’s Final Report as perpetrators of violence, murders and other heinous crimes in violation of the Due Process Clause, Article 20(a), of the Constitution
In its Final Report, the TRC adjudged certain individuals named therein guilty of committing various crimes, including murders, massacres, rape, violations of human rights, violations of international humanitarian laws, and economic crimes, among others; and recommended those individuals for prosecution and/or debarment from public office for thirty (30) years. In adjudging those individuals guilty of having committed such crimes and recommending them for prosecution, however, the TRC failed to comply with the constitutional requirement of due process of law, i.e., notice and an opportunity to be heard and to confront the evidence against them, including the opportunity to present evidence in their defense. By failing to give notice to each of those individuals, informing them of the specific charges against them and affording them the opportunity to defend against such charges, the TRC denied those individuals due process of law in violation of the Due Process Clause, Article 20(a), of the Constitution, which provides in relevant part, as follows: “No person shall be deprived of life, liberty, security of the person, property, privilege or any other right except as the outcome of a hearing judgment consistent with the provision laid down in this Constitution and in accordance with due process of law...”
The right to due process of law is a fundamental right and a condition precedent to criminal and civil liabilities or sanctions, such that the denial of same is ground for declaring the conclusion, judgment or decision reached in any proceeding repugnant to the Constitution and therefore unconstitutional. Stating the preeminence of due process of law in our jurisprudence, the Supreme Court of Liberia states: “The term ‘due process of law’ is synonymous with ‘law of the land.’ The constitution contains no description of those processes which it was intended to allow or forbid, and it does not even declare what principles are to be applied to ascertain whether it be due process. But clearly it is not left to the legislative power to enact any process which might be devised; ‘due process of law’ does not mean the general body of the law, common and statute, as it was at the time the constitution took effect. It means certain fundamental rights, which our system of jurisprudence has always recognized. The constitutional provisions that no person shall be deprived of life, liberty, or property without due process of law extend to every governmental proceeding which may interfere with personal or property rights, whether the proceeding be legislative, judicial, administrative, or executive, and relate to that class of rights the protection of which is peculiarly within the province of the judicial branch of the government. The essential elements of due process of law are notice, and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.” Liberia Telecommunications Authority v. West Africa Telecommunications, decided by the Supreme Court of Liberia in March, A.D. 2009, citing Wolo v. Wolo, 5 LLR 423, 427-429 (1937).
Whatever proceedings were conducted by the TRC, at or out of which, the individuals named in its Final Report were adjudged guilty of the crimes enumerated therein, constituted one of the categories of proceedings that require a governmental entity to afford affected persons due process of law, since the personal liberty or property rights of those individuals were at stake. Therefore, in adjudging the individuals named in its Final Report guilty of having committed the crimes enumerated therein, without giving them notice of the specific charges against them and affording them the opportunity to be heard; to confront the evidence against them; and to present evidence in their own defense; the TRC’s conclusions, determinations and recommendations, are repugnant to the Constitution and therefore are “void and of no legal effect,” pursuant to the Supremacy Clause, Article 2, of the Constitution.
D. Adjudication of political leaders and financiers of warring factions and armed groups, in violation of the Due Process Clause, Article 20(a), of the Constitution
In its Final Report, also, the TRC adjudged certain individuals guilty of being “prominent political leaders and financiers of different warring factions and armed groups [who], by their conduct, leadership, finances, and support, actions or inactions, are responsible for the commission of gross human rights violations, international humanitarian law violations, international human rights law, war crimes, and egregious domestic law violations…,” and recommended those individuals for public sanctions, including “lustrations, debarment from holding public offices for thirty (30) years, restitution, public apologies, written or oral; community service, compensation of victims, etc…” In adjudging those individuals guilty of being prominent political leaders and financiers of warring factions and armed groups and recommending them for the public sanctions referenced herein, the TRC failed to comply with the constitutional requirement of due process of law, i.e., notice and opportunity to be heard and to confront the evidence against them, including the opportunity to present evidence in their defense. By failing to give notice to each individual, informing them of the specific charges against them and affording them an opportunity to defend against such charges, the TRC denied them due process of law in violation of the Due Process Clause, Article 20(a), of the Constitution. As noted previously, the right to due process of law is a fundamental right and a condition precedent to criminal and civil liability, such that the denial of same is ground for declaring the conclusion, judgment or decision reached in any proceedings repugnant to the Constitution and therefore unconstitutional.
I note that whatever proceedings were conducted by the TRC, at or out of which, the individuals named in its Final Report were adjudged guilty of the allegations enumerated therein, constituted one of the categories of proceedings that require a governmental entity to afford affected persons due process of law, since the personal liberty or property rights of those individuals were at involved.
E. Adjudication of individuals named in the TRC’s Final Report of the commission of various crimes without a formal indictment by a Grand Jury, in violation of Article 21(h) of the Constitution
In its Final Report, the TRC states: “The TRC is mindful that it does not have penal jurisdiction to make any determinations or judgments on the criminal responsibility or liability of any person, persons, armed group, corporate body, or entity, but rather jurisdiction to make binding determinations and levy public sanctions on any person, persons, armed group, corporate body or other entity, responsible for committing EDC, GHR and IHL violations.” Notwithstanding this disclaimer of jurisdiction over the determination of criminal liability, the TRC, as stated in the preceding discussions, adjudged the persons and entities named in its Final Report guilty of having committed various crimes and violations of human rights and international humanitarian law, and recommended them for prosecution and/or public sanctions. In making such recommendations, the TRC has in essence issued an indictment against the persons recommended for prosecution and/or public sanctions, in violation of Article 21(h) of the Constitution, which provides in relevant part that…“[n]o person shall be held to answer for a capital or infamous crime except in cases of impeachment, cases arising in the Armed Forces and petit offenses, unless upon indictment by a Grand Jury…”
Applying this constitutional standard to the classes of crimes with which the TRC charged the persons named in its Final Report, and for which the TRC indicted those persons, reveals that the enumerated crimes constitute capital or infamous crime within the meaning of Article 21(h) of the Constitution, since those crimes include murders, rape, violations of human rights, violations of international humanitarian laws, etc.. Further, the enumerated crimes are neither crimes arising out of the Armed Forces or petit offenses nor do they constitute impeachable crimes. Therefore, in order for the charges against those persons to withstand constitutional muster, those individuals should have been indicted by a Grand Jury. See Tompo, et al. v. Republic of Liberia, 13 LLR 207, 208 (1958). Not being a Grand Jury within the meaning of Article 21(h) of the Constitution or within the meaning of any statutory law of the Republic of Liberia, the TRC lacked the power or authority to issue such scathing indictment against the persons named in its Final Report. Accordingly, in issuing such indictment, the TRC abused and/or exceeded the authority granted by the TRC Act. Therefore, the charges and recommendations by the TRC are “void and without legal effect” pursuant to Article 2 of the Constitution. Any argument that the TRC’s recommendations regarding prosecution and public sanctions do not constitute indictment is absurd, because the TRC’s hearings and the findings upon which its recommendations are based constitute an indictment against the persons named in its Final Report. See LEC v. Mongrue et al, 32 LLR 487, 493 (1984), (holding that “[t]he audits conducted of LEC finances entrusted to Mr. Mongrue and the reports submitted therefrom constituted an indictment against Mr. Mongrue”).
Additionally, the TRC lacked “jurisdiction to make binding determinations and levy public sanctions on any person, persons, armed group, corporate body or other entity, responsible for committing EDC, GHR and IHL violations,” as it claimed in its Final Report. Article 65 of the Constitution provides that “[t]he Judicial Power [the power to pass judgments and levy public sanctions] of the Republic shall be vested in a Supreme Court and such subordinate courts as the legislature may from time to time establish…” Consistent with this constitutional provision, only the Supreme Court and the subordinate courts have the power or jurisdiction to make binding determinations in justiciable proceedings and to levy sanctions on persons and entities. Even the Legislative and Executive Branches of the Liberian Government lack such power under our system of government. In a long line of cases, the Supreme Court of Liberia has held that “to imprison and impose fines are judicial functions which cannot be exercised by an official of the Executive department without contravening the Constitution.” See Liberty Party v. The National Elections Commission, decided by the Supreme Court of Liberia in March, A.D. 2009, citing Jedah v. Horace, 2 LLR 265 (1916); Karmo v. Morris, 2 LLR 317 (1919). There can be no doubt but that the imposition of public sanctions by the TRC on certain individuals in its Final Report is clearly an exercise and therefore usurpation of judicial function in contravention of the Constitution. Not being a court, and having admitted that it lacked jurisdiction to determine criminal liability, the TRC could not determine the criminal liabilities, if any, of the persons named in its Final Report relative EDC, GHR and IHL or any of the alleged crimes. On this issue, the Supreme Court has emphatically stated that the “Legislature can only confer judicial power on the courts, and whenever they attempt to transcend the limitations thus fixed by the Constitution such statute is not only voidable, but void ab initio.” See Karmo, supra, at 330-331. To the extent, therefore, that the TRC Act either expressly or impliedly conferred judicial power on the TRC, such conferment is unconstitutional and is therefore “void and without legal effect,” pursuant to the Supremacy Clause, Article 2, of the Constitution.
F. Adjudication of the persons named in the TRC’s Final Report guilty of the commission of various crimes and the imposition of public sanctions in violation of Article 21(a) of the Constitution
Purporting to act pursuant to its authority under the TRC Act, the TRC adjudged the persons named in its Final Report guilty of committing various crimes; recommended some persons for prosecution; and debarred others from holding public offices for thirty (30) years. In so doing, the TRC violated Article 21(a) of the Constitution, which provides: “No person shall be made subject to any law or punishment which was not in effect at the time of commission of an offence, nor shall the Legislature enact any bill of attainder or ex post facto law.” When weighed against this constitutional standard, it is clear that the crimes with which the TRC has charged the persons named in its Final Report did not exist under Liberian law at the time of their alleged commission. While murder, for example, was an act declared a crime under Liberian law prior to the civil war, there was no law in the country that expressly or by implication, criminalized war or deaths and destruction of property resulting from war, or resulting as a collateral damage of war. In fact, the only plausible argument that could be made for a criminal prosecution of some members of the warring factions would be based on ground of treason or sedition; an argument that may even be difficult to prove. But the TRC did not recommend any individual or group for prosecution for having committed treason or sedition against the Republic of Liberia. Even then, the TRC would have had no authority to recommend anyone or entity for prosecution on grounds of treason or sedition in the absence of an indictment by a Grand Jury, as provided by the Constitution.
The TRC did not argue in its Final Report that the named individuals committed the alleged crimes during normal timesthat is, during times when there was no war in the country. In fact, the TRC specifically argued that the alleged crimes were committed during the nearly 14-year civil war that ravaged the country and destroyed its physical, social, political and economic structures; meaning that all of such alleged crimes were the excesses or collateral damages of the civil war. Because the crimes allegedly committed by the persons named in the TRC’s Final Report were the excesses or collateral damages of the country’s civil war, and because war per se was not an act criminalized by Liberian law prior to the Liberian civil war, the alleged perpetrators cannot be prosecuted or subject to public sanctions under Liberian law without violating Article 21(a) of the Constitution. Accordingly, the TRC abused and/or exceeded the authority, if any, granted by the TRC Act. See Children Assistance Program v. His Honour B.S. Tamba, decided October, A.D. 2006; Picasso Cafeteria and Spanish Gallery v. Mano Insurance Corp., 38 LLR 297, 304 (1996); Francis W. Morais v. Republic of Liberia, 5 LLR 3, 19-20 (1935).
If, as further argued by the TRC, the individuals named in its Final Report violated any international agreements and/or treaties existing prior to the Liberian civil war and to which Liberia is or was a party, then it behooves the international organization or organizations responsible for enforcement of such agreements and/or treaties to act to enforce those agreements and/or treaties. Moreover, as the enforcement of such international agreements and/or treaties against the Liberian citizens named in the TRC’s Final Report would be based on Liberia being a signatory to such agreements and/or treaties, the provisions of such international agreements and treaties can only be enforced against the individual Liberian citizens named in the TRC’s Final Report if and only if those provisions are consistent with the Liberian Constitution and therefore do not violate the Liberian Constitution. Liberia can neither be required to enforce international agreements and/or treaties which should be enforced by international organizations nor be required to violate its organic law by criminalizing and punishing its citizens for committing certain acts which were not a crime at the time of commission. On this score, also, the TRC’s recommendations must crumble.
G. Adjudication of the persons named in the TRC’s Final Report guilty of the commission of various crimes and the imposition of public sanctions in violation of Article 21(c) of the Constitution
During the hearings that resulted in the TRC’s adjudication of the persons named in its Final Report guilty of committing the crimes listed therein, the TRC failed to afford said persons their rights, as required by Article 21(c) of the Liberian Constitution. My research of the TRC process reveals that the TRC adjudged the persons named in its Final Report guilty of the crimes enumerated in the Final Report and recommended some for prosecution and others for public sanctions without informing them of the specific charges against them and warning them that they had the right to remain silent; that they were entitled to counsel; that if they could not afford counsel, the Government would provide counsel for them; and that their statements could be used against them in a court of law. The failure of the TRC in this respect constitutes a violation of Article 21(c) of the Constitution, which provides: “Every person suspected or accused of committing a crime shall immediately upon arrest be informed in detail of the charges, of the right to remain silent and of the fact that any statement made could be used against him in a court of law. Such person shall be entitled to counsel at every stage of the investigation and shall have the right not to be interrogated except in the presence of counsel. Any admission or other statements made by the accused in the absence of such counsel shall be deemed inadmissible as evidence in a court of law.” In failing to comply with this provision of the Constitution, the TRC most definitely violated the rights provided by same; thus, the actions taken by the TRC in non-compliance with same is unconstitutional.
While an argument could be made that those implicated by the TRC in its Final Report were not “arrested;” that they voluntarily appeared before the TRC; and that therefore they were not entitled to the rights afforded by Article 21(c) of the Constitutional, such argument is unpersuasive and even absurd, for two reasons. First, those implicated were either accused or suspected by the TRC of committing the crimes enumerated in its Final Report, which accusation or suspicion prompted the TRC to demand their appearance before the TRC, to make statements and answer questions regarding their activities during the Liberian civil war. Had such accusation or suspicion not existed, they would not have been called to testify before the TRC. The argument that those implicated in its Final Report were accused or suspected by the TRC of committing the crimes with which the TRC charged them is supported by the fact that the TRC did not demand that all Liberians who were adult at the time of the Liberian civil war appear before the TRC and give statements or answer questions. In fact, the TRC did not even call all Liberians who played significant roles during the civil war to appear before it, nor did the TRC adjudge all Liberians who played significant roles in the conflict guilty of committing crimes during the conflict. This failure to call all such persons meant that the people the TRC called to testify before it and the persons named in its Final Report were persons it believed had committed crimes and various infractions during the conflict. The TRC therefore knew that all or some of those persons would be found to have committed the crimes which it had accused or suspected them of committing, a knowledge which triggered the protection afforded by Article 21(c). Having called those persons based on unsubstantiated accusation or suspicion that they committed crimes, the TRC could not, in the absence of compliance with Article 21(c), recommend some of such persons for prosecution and debar others from holding public offices based on statements made before the TRC. This is clearly forbidden by Article 21(c) and 21(h) of the Constitution.
Secondly, while the individuals who appeared before the TRC may not have been “arrested” in the lateral sense of that word, a careful scrutiny of the TRC’s broad powers, as contained in the TRC Act, clearly reveals that the individuals who appeared before the TRC were compelled to do so; failure to appear and they would have been arrested and brought before the TRC. Article VIII, Section 27 of the TRC Act grants the TRC the power to subpoena individuals to appear before the TRC. It states in relevant part: “The TRC shall exercise powers generally in any matter, manner and form and for any purpose related to the fulfillment of the objects expressed in this Act, and without limiting the generality thereof, it shall have powers to: …(d) Compel attendance of any person before the TRC or any of its staff for the purpose of assisting the TRC in the conduct of its work and may publish a warrant, subpoena, or citation after diligent efforts have been exhausted to no avail in making a personal service…” This subpoena power of the TRC, therefore, authorized the TRC to compel anyone to appear before it. Had the persons who appeared before the TRC failed to do so upon demand, they would have been subpoenaed to appear and a failure to comply with the subpoena would have led to their arrest. Therefore, their appearance before the TRC was not voluntary; they were required to either appear before the TRC as demanded or be forced to appear by means of the TRC’s subpoena power and the power to issue arrest warrant. Accordingly, it was necessary for the TRC to have complied with the requirements of Article 21(c) of the Constitution.
The right of a an individual suspected or accused of having committed a crime to be informed of the charges against him/her; his/her right to counsel; and the right not to criminate himself/herself are among those fundamental rights the Supreme Court of Liberia has emphasized in a number of cases. The Supreme Court has even interpreted the constitutional provision on the right to counsel to include the right to competent counsel; and has called on trial judges to dismiss incompetent defense counsels and appoint competent counsels in their stead. See James D. Teddaway v. Republic of Liberia, 5 LLR 126, 137 (1936); Republic of Liberia v. Emma Shannon-Walser, 27 LLR 274, 285 (1978); Charles Thomas v. Republic of Liberia, 35 LLR 759, 769 (1988). The Supreme Court has further held that “the interrogation of [a] suspect by [a] town chief, his councilmen and the police authorities without warning or advising him of his rights, and without the presence of his counsel is a flagrant violation of, and a governmental infringement upon his liberties and his fundamental rights.” Musa Sheriff v. Republic of Liberia, 29 LLR 103, 106-107 (1981). In so holding, the Supreme Court reasoned that “[a] town chief and his councilmen, including an overseer, are all members of the executive branch of government who constitute the prosecution in investigating and prosecuting crime.” Id. at 107. As an entity, which was within the Executive Branch of the Government charged with the responsibility of investigating human rights violations and other vices that occurred during the civil war; which investigation could trigger prosecutions of various individuals and entities, the TRC was clearly a part of the Government’s prosecution team notwithstanding its lack of prosecutorial powers. Hence, it was required to comply with Article 21(c) of the Constitution. Its failure to comply with the requirements of Article 21(c) therefore constituted a violation of, and an infringement upon, the liberties and fundamental rights of the individuals involved.
The necessity for compliance with Article 21(c) of the Constitution cannot be overemphasized; as the history of governance and administration of criminal justice in the Liberian nation is replete with instances where bogus charges were levied against real or perceived political foes, with law enforcement and other security personnel being used to abuse the rights of the accused. A close scrutiny of the history of the administration of criminal justice in Liberia reveals that in many instances, citizens of the country, including some of the drafters of the Constitution, were charged with crimes and prevented from accessing legal counsels to protect their rights; while in other instances, the accused was flogged into confessing to the commission of crimes which he may not have committed, simply as a means of getting reprieve from being tortured by security and law enforcement officers. It is against this background that what is a common law doctrine adopted by the United States Supreme in the case of Miranda v. Arizona was enshrined in our Constitution, to make it a constitutional requirement for law enforcement personnel and any arm of government which accuses or suspects citizens of committing crimes to give them the warning contained in Article 21(c) of the Constitution. Hence, a glaring failure to comply with this pivotal constitutional requirement, as demonstrated by the TRC in its adjudication of the persons named in its Final Report guilty of the crimes allegedly committed by them, is not only a cause for concern or worry, but a definite ground for declaring the proceedings, conclusions and recommendations of the TRC unconstitutional; for a failure to do so may lead to an erosion of the protection guaranteed by Article 21(c) of the Constitution and a throwback to the dark days when the rights of citizens of the country were violated with impunity by agents of the State. Given the history of governance and administration of criminal justice in this country, as noted herein, we cannot discount anything. Liberia is a unique country, with a checkered history. The fact that we have a relatively democratic government at present does not mean that we are not likely to have a despotic leader in the future. Hence, we need to zealously protect the rights provided by our Constitution and to guard against those institutions and arms of the State which violate or attempt to violate those rights; for a failure to do so would have consequences far beyond our collective imaginations.
5. NON-CONSTITUTIONAL BUT DESTABILIZING ASPECTS OF THE TRC’S FINAL REPORT
Although the TRC was established by legislation enacted by the NTLA, it derived its legitimacy from the CPA and the desire of the parties to the CPA for lasting peace and reconciliation in Liberia, after a protracted and bloody conflict that destroyed hundreds of thousands of lives and the physical infrastructure and social fabric of a society once considered one of the most peaceful and stable on the African Continent. As the CPA was the foundation upon which the TRC was established, strict compliance with its provisions and the intent of the parties to the CPA was essential for public confidence in the final product of the TRC, such that a failure to comply with, or any deviation from, the provisions of the CPA and the intent of the parties to the CPA is a fatal defect in any such product. But as demonstrated below, the TRC failed to comply with two essential provisions of the CPA, which failure, I believe, is a fatal defect in the TRC’s Final Report.
A. Failure To Comply With Article XIII, Sections (1) and (2) Of The CPA
Besides the constitutional violations discussed above, the TRC’s Final Report is a polarizing document, the implementation of which will, instead of reconciling the war-weary people of Liberia, lead to the destabilization of the country. The TRC’s Final Report, for instance, demands that Prince Y. Johnson should be compelled to produce Samuel Doe’s head or skull, without a similar demand for the production of Thomas Quiwonkpa’s body or the body of the late President William R. Tolbert, Jr. and other officials of the Liberian Government who were killed along with President Tolbert, on April 12, 1980. Nor does the TRC Final Report demand the return of the bodies of the late William Gabriel Kpolleh, Jackson F. Doe, D. Gborboe Dwanyen, His Honor Alfred Flomo, former Associate Justice of the Liberian Supreme Court, Stephen Daniels or the bodies of the many Liberians who were massacred at the Lutheran Church by the Armed Forces of Liberia. Certainly, many of those who committed the Lutheran Church massacre and those responsible for the deaths of the others named herein are still alive today.
While the demand for the production of Doe’s head or skull may be welcomed by some of the Krahns, it is definitely not going to be welcomed by the Gios who rightly or wrongly believe that the death of Doe was a “pay-back” for the many atrocities Doe allegedly committed against the Gios and Manos during his Presidency. In fact, one reason why Prince Y. Johnson received the highest number of votes in Nimba during the 2005 Senatorial election was the role he played in the removal of Doe from power. Hence, any attempt, in Liberia, to harass or “touch” Prince Y. Johnson will definitely be resisted by the Gios, not necessarily because they love him, but because such would be seen as an attack on the Gios as a whole. Of course, one could argue that the reason for demanding the production of Doe’s head but not Quiwonkpa’s is because Doe was a President of Liberia while Quiwonkpa was not. But that argument fails since a similar demand was not made for the production of Tolbert’s body.
The TRC’s mandate, as stated in Article XIII, Sections (1) and (2) of the CPA, and incorporated in Article IV of the TRC Act, calls for investigation of the root causes of the civil war, including all related crimes and/or violations of human rights dating back to 1979 and prior to that time, if request is made by anyone for investigation of activities preceding 1979; and reconciliation of the war-weary people of Liberia. In apparent compliance with that mandate, the TRC documented various violations of human rights in 1979, especially as relates to the events leading to the “Rice Riots” of April 14, 1979. In documenting the events that culminated in the Rice Riots, the TRC indicated that following his ascendancy to the Presidency in 1971, the late President William R. Tolbert, Jr. tried to change the socio-political system which marginalized the “indigenous majority,” by increasing indigenous participation in all aspects of the country, including government, education, commerce and industry, but that his efforts were thwarted by the old guards of the True Whig Party establishment and the legacy of the Tubman era. Consequently, the status quo either remained constant or was changed very little. The TRC also documented that while Tolbert’s call for change was welcomed by the indigenous population, it was resisted by the True Whig Party establishment, which preferred to treat the indigenous as second class citizens; and that as a result, Tolbert was forced to institute draconian measures, some of which led to the loss of scores of indigenous lives on April 14, 1979. The TRC further documented that in a rather incompetent and arrogant manner, the Government of Liberia, through the then Minister of Agriculture, Florence Chenoweth, decided to increase the price of rice on the Liberian market, but instead of educating the public on the necessity for the increment, decided to prevent a scheduled peaceful march to protest against the increase in the price of rice. When the protesters took to the streets on April 14, 1979, the TRC’s Final Report states, the then Minister of Justice, Oliver Bright, issued his infamous “shoot-to-kill” orders which were viciously carried out by the Liberia National Police under the Directorship of Varney Dempster and resulted in the killing of scores of unarmed indigenous civilians. The killing of civilians by the Liberia National Police was followed by the arrival of elite Guinean troops upon the request of President Tolbert, which troops also violently suppressed the protest and killed scores, if not, hundreds of people, all of whom were indigenous Liberians.
Although the TRC’s Final Report details the various atrocities committed during the Tolbert Administration, especially during and after the 1979 Rice Riots, no official of the Tolbert Administration was recommended by the TRC for prosecution or public sanctions. Ironically, some of the key players in that fateful event, which probably led to the violent overthrow of President Tolbert, are still around and continue to play key roles in the affairs of the country. What makes the recommendation of the TRC for prosecution of many of the key participants in the civil war and the lack of similar recommendation for prosecution of key officials of the Tolbert Administration dangerous and destabilizing for Liberia is the fact that many of those recommended by the TRC for prosecution are indigenous Liberians while the key players in the events of 1979 were Americo-Liberians. While we may pretend that the “Americo-Liberian versus Native-Liberian” divide does not exist today, the reality is that the divide still exists and it only takes a little match to reignite that scourge. What is even more repugnant and divisive about the TRC’s Final Report is its recommendation for the prosecution of dead people, all of whom are indigenous Liberians. To my knowledge, nowhere in the civilized world has the dead ever been recommended for prosecution. Even Adolf Hitler, for all the atrocities attributed to him, has never been recommended for prosecution by any nation, including Israel, because he died before World War II ended. Yet, in our country, dead people are being recommended by the TRC for prosecution for their alleged role in the civil war. How are those people expected to defend themselves? Doesn’t the mere recommendation for prosecution of dead people denote hatred and insensitivity, since other similarly situated Americo-Liberians both alive and deceased are not being recommended for prosecution?
The TRC which was intended to both seek the truth about the circumstances that led to the Liberian civil war and reconcile the people of Liberia with a view to preventing a recurrence of the destructive episode, became in reality the seeker or adjudicator of retributive justice. Clearly, no objective mind will argue that what the TRC documented in its Final Report is something other than the truth. But a search for the truth was one aspect of the TRC’s mandate, as intended by the CPA. Hence, the fact that the TRC may have searched for, found and documented the truth about the root causes of the civil war does not end the debate. The TRC had a two-pronged responsibilitysearch for the truth and reconcile the people. The TRC miserably failed to fulfill the second prong of its responsibility, which is to reconcile the people. In fact, judging by the various responses to the TRC’s Final Report, the country is more divided and polarized today than at any time since the end of the civil war and prior to the publication of the TRC’s Final Report.
B. Failure To Comply With Article XIII, Section 4 of The CPA
In addition to its failure to comply with Article XIII, Sections (1) and (2) of the CPA, the TRC also failed to comply with what is perhaps the most import provision of the CPA---Article XIII, Section (4), which requires the views of all segments of the Liberian society to be represented on the TRC in order to lend credibility to the findings and conclusions of the TRC. Article XIII, Section (4) provides, in relevant part, that “[m]embership of the Commission shall be drawn from a cross-section of Liberian society...” Contrary to this important requirement, membership of the TRC was limited to individuals who did not represent a cross-section of the Liberian society. Membership of the TRC comprised of two lawyers, two journalists, two religious personalities, representing the Christian and Islamic Faiths, one accountant, one engineer and one registered nurse. Also serving on the TRC as “International Technical Assistance Committee” members were two Ghanaians and one American, all of whom are lawyers, all of whom know little or nothing about the socio-economic and political history of Liberia and all of whom have any experience in conflict resolution in a post-war country. In a country where approximately eighty-five (85%) percent of the population is illiterate or semi-literate, this composition can hardly be described as being representative of a cross-section of the population. Semi-literate and illiterate people who are the majority of the Liberian population, many of whom actually comprised a majority of the combatants during the civil war, were never represented on the TRC.
Similarly, the composition of the membership of the TRC woefully fell short of ethnic and geographical representations. Again, in a country which is comprised of sixteen (16) ethnic groups from fifteen (15) political subdivisions, the composition of the TRC fell far short of representing the views of all segments of the Liberian society, as required by the CPA. Membership of the TRC, as revealed by my research, was as follows: (a) the Chairman of the TRC, Counsellor Jerome J. Verdier, is from Grand Bassa County; (b) two Commissioners, Dede Dolopei and Sheik Kafumba Konneh, are from Nimba County; (c) four Commissioners, Counsellor Pearl Brown Bull, Ambassador Gerald Coleman, Journalist John Stewart and Journalist Massa A. Washington, are from Montserrado County; (d) one Commissioner, Retired Bishop Arthur F. Kulah, is from Bong County; and (e) Registered Nurse Oumu K. Syllah is from Grand Gedeh County. Hence, out of the fifteen (15) political subdivisions of the country, only five were represented on the TRC. Even more disturbing is the ethnicity of the Commissioners of the TRC. Neither of the majority ethnic groups in Lofa County, the Lormas and Kissis, were represented on the TRC. Only one ethnic representation was from the entire southeastern part of the country and that representation was not Grebo, Krahn, Kru or Sarpo. Although the Krahns and Sapos played a major role in the civil war and many of the Krahns, including some deceased Krahns, were recommended by the TRC for prosecution and other public sanctions, the Krahns were not represented on the TRC. Representations from Nimba County, another major player during the civil war, were limited to the one Mano woman and one Mandingo man, while the Gios who are the largest ethnic group in the county and whose members were recommended by the TRC for prosecution, were never represented on the TRC. It would be redundant to list all unrepresented ethnic groups here, but it suffices to state that other ethnic groups, including the Krahns of Nimba County who are the third largest ethnic group in Nimba County and the Kpelles of Bong County, were never represented on the TRC. Although Retired Bishop Arthur F. Kulah is said to hail from Bong County, he is Mano and represents the tiniest minority group in Bong County. The net result of this failure, therefore, is that the TRC did not represent a cross-section of the Liberian society as required by the CPA and, as such, the Final Report of the TRC does not represent the views of a cross-section of the Liberian society. Accordingly, the TRC’s Final Report lacks the credibility it would have had had a cross-section of the Liberian society been represented on the TRC as required by the CPA.
History teaches that laws are made by people for their self-governance and peaceful co-existence. Hence, in order for laws to be considered legitimate and therefore obeyed by the people, they must either come directly from the people or must come from the people through their chosen representatives whose judgments on such matters are deemed credible by the people. Where laws are made by self-appointed people or by people selected without the import of a majority of the people and forced upon the people, the people are likely to resist such laws by deliberately disobeying or violating same. The latter situation is clearly presented by the composition of the membership of the TRC and the recommendations contained in the TRC’s Final Report. The requirement that membership of the TRC “be drawn from a cross-section of Liberian society” was intended to ensure that all segments of the Liberian society had an input in the truth and reconciliation process so that the interests of one segment is not prejudiced by the interests of other segments without the opportunity to have those segments examine a particular situation from that segment’s perspective, including the necessity or exigency of the actions or omissions of that segment; the prevailing circumstances as perceived by that segment; and whether a reasonable segment in the position of that segment would have acted or omitted to act in the same or a similar manner. The absence, therefore, of the views of the Kpelles, Krahns, Gios, Lormas, Kissis, Sarpos and other similarly situated ethnic groups, some of whose members were recommended for prosecution and/or public sanctions by a TRC whose Commissioners were comprised of members of other ethnic groups that were their enemies during the civil war, creates doubt as to the impartiality and hence the legitimacy of the entire truth and reconciliation process and the TRC’s Final Report.
A number of questions are presented by the failure of the TRC to represent a cross-section of the Liberian society as required by the CPA and anticipated by the parties to the CPA, including the following: (a) was the CPA a binding and an enforceable contract, such that strict compliance with its terms and conditions by all relevant individuals, entities and institutions was mandatory?; (b) assuming that the CPA was a binding and an enforceable contract, did the failure to strictly comply with its cross-section representation provision constitute a material breach of the CPA, such that the TRC Act enacted pursuant to the CPA and the Final Report of the TRC produced pursuant to the TRC Act should be considered void and therefore disregarded?; (c) was the TRC whose members only comprised of four out of the sixteen ethnic groups in the country competent and sufficiently qualified to pass judgment on the twelve ethnic groups who were not represented, given that Commissioners of the TRC were appointed by a non-elected Chairman of the National Transitional Government of Liberia?; (d) since Commissioners of the TRC were appointed by a Chairman who derived his mandate not from the Liberian People but from the CPA, should their appointment which was made in violation of the CPA be considered legitimate, and their findings and conclusions accepted and implemented by the present Liberian Government?; (e) assuming that the failure to comply with the cross-section representation provision of the CPA constitutes a material breach of the CPA, should the Liberian Government, notwithstanding this fact, bow to domestic and international pressures and implement the recommendations of the TRC verbatim?; (f) what happens if those recommended by the TRC for prosecution refuse to voluntarily submit to the jurisdiction of a court of competent jurisdictionshould the Liberian Government effect their arrests?; (g) is the Liberian Government prepared tothat is, capable of prosecuting all persons recommended by the TRC for prosecution, and if convicted, incarcerating such persons?; (h) is the Liberian Government prepared tothat is, capable of enforcing the recommendation of the TRC for a thirty-year debarment of certain individuals, including the current President, from holding public offices? These questions are by no means exhaustive, but constitute some of the issues to be considered as we grapple with a flawed report containing recommendations that deviate from a scheme which was intended to reconcile the people of Liberia and ensure lasting peace, stability and unity.
At this point, a note of caution is warranted. While I understand that some of our citizens and our international partners, for various reasons, want the recommendations of the TRC to be implemented verbatim, we must be mindful of our recent past and proceed cautiously, after weighing the pros and cons of whatever decision we eventually make. We cannot afford to be emotional about these things or allow international pressure or pressure from some domestic quarters to plunge us once again into an untenable situation, for it is we the people of Liberia who will deal with the consequences of whatever decision we make or action we take. We therefore need to ask ourselves whether or not it is in our best interest, at this time, to exact retribution for alleged atrocities committed during the civil war. We also need to ask ourselves whether or not retribution is likely to yield the results we desire in this countryhealing of the wounds left by the civil war, reconciliation of the people, stability and security of the country and above all, the unity of the country, including the belief and knowledge that we are one people whose interests are intertwined in such a manner that when the interests of one of us is threatened or prejudiced, the interests of the collectivity are equally threatened or prejudiced.
I do not believe that we can reinvent the wheels of history through retribution; what we can do is to ensure that the vices of the past are not repeated. Some may classify any decision to dispense with retribution and implement true reconciliation as caving in to impunity, but I call it the quest for lasting peace and unity. I have not learned of the exaction of retribution after the American civil war, nor have I learned of the exaction of retribution after the Nigerian civil war. The exaction of retribution after a civil war is, to my knowledge, a recent phenomenon which began after the Rwandan and Bosnian wars. In South Africa where thousands of black South African civilians were massacred by white South Africans, the international community which is now demanding that the TRC’s Final Report and its recommendations should be implemented verbatim has never, to my knowledge, demanded the exaction of retribution. I believe that the South Africans preferred reconciliation to retribution because it was better for their society. Hence, while retribution may have worked well in the Rwandan and Bosnian contexts, it may not work as well in other contexts, including our own. We therefore need not exact retribution simply because it has worked in other contexts or because the international community and some understandably indignant Liberians demand that we exact retribution.
A former President of Tunisia once commented that “patience is not a sign of weakness, but a sign of strength;” I agree with this comment. A strong person or group of persons will exercise patience and weigh the consequences of their action before acting, knowing that they possess the strength to take whatever action is warranted by a given situation, but a weak and feeble minded person will act hastily under pressure. In our particular context, a quest for reconciliation over retribution should not be seen as a sign of weakness or as condoning impunity, but as a genuine attempt at burying the past and looking forward to a brighter future for our children and their children; as an attempt to create a truly unified country where patriotism and nationalism reign supreme; and as an attempt to create a country in which sectionalism and ethnocentrism are relics of the past. These are just the thoughts of one man who lacks the authority to implement his recommendations, but who possesses the insight to think things through and make what he believes are the best recommendations for policy-makers to analyze and debate during their decision making process. I hope the questions posed and the comments made in this article will be seriously considered and debated for what they are worth.