By: James W. Harris
Was commission not aware that 14.2/14.3 directly violated the Liberian Constitution? Almost six years have elapsed since the Truth and Reconciliation Commission (TRC) submitted its long-awaited final report. This was on June 30, 2009, when the commission officially presented it to the Liberian National Legislature and the highly gullible general public. Since then, nothing impressive has been done in terms of implementing fully a few key recommendations proposed by the commission.
When the TRC Act of 2005 was passed by the then National Transitional Legislative Assembly (NTLA), which established the commission, it specifically designated the Liberian “Head of State” to implement all of the TRC’s recommendations to the full extend.
Under Article X (Reporting and Recommendations) Section 48, the Act clearly states that: “The Head of State shall report to the National Legislature within three months of receipt of the report of the TRC, and on a quarterly basis thereafter, as to the implementation of the Commission’s recommendations. All recommendations shall be implemented.” But it did not stop there! It further says: “Where the implementation of any recommendation has not been complied with, the Legislature shall require the Head of State to show cause for such noncompliance.” Not surprisingly, though, successive Liberian Legislatures have not called upon President Sirleaf so far “to show cause” as to why she has not infact implemented certain portions of the TRC’s recommendations.
Of particular interest to many Liberians is the implementation of Sections 14.2 (p. 360) (Lustrations, Debarment from Holding Public Office) and 14.3 (p. 361) (List of Persons Subject to/Recommended for Public Sanctions), respectively, in the report. Together, these two key recommendations basically called for the sanctioning of certain prominent Liberians from holding public office for a period of 30 years.
Recommendation 14.2 states that: “Public sanctions may take the form of lustrations, debarment from holding public offices, restitution, public apologies, written or oral; community service, restitution, compensation of victims, etc and other forms of social responsibilities that may be imposed for the purpose above stated.” The TRC then went right ahead in Section 14.3 and listed the names of persons it had painstakingly determined needed to be sanctioned for their roles or complicity in the various senseless wars that were forced on the country and the defenseless Liberian people.
Do these names ring a bell?
Some of the most familiar names on the list are Ellen Johnson Sirleaf (the sitting two-term President of the Republic of Liberia, who holds spot number 11), her one-time collaborator, Tom Woewiyu (number 31 and Charles Taylor’s former Defense Minister, who was recently jailed in the U.S. for allegedly lying on his immigration papers), Dew Mason (number 6 and a former so-called “progressive” political science professor who has since turned out to be a flamboyant businessman while serving in the equally notorious Samuel K. Doe regime), Kabineh Ja’neh (spot 13 and currently a Supreme Court Justice, who is a former top executive of the brutal rebel group, Liberians United for Reconciliation and Democracy [LURD]), Isaac Nyenabo (number 12, former Speaker of the House and currently Liberia’s Ambassador to Brussels and the European Union [EU]), and Clarence L. Simpson (spot number 5, former Attorney General as well as secretary general of the age-old True Whig Party [TWP]), amongst others. In total, there are 49 names on the list.
In an earlier paragraph above in which the phrase “for the purpose above stated” was mentioned, the TRC was referring to their definition of public sanctions, which they described as “a form of justice mechanism punitive in nature but short of prosecution; intended to redress impunity, ensure accountability and maintain integrity in public service.”
Williams goes to court
Understandably, Sections 14.2 and 14.3 did not sit well with at least one person on the list – Richlieu “Archie” Williams (number 14). On November 30, 2010, one Archie Williams (presumably Richlieu “Archie” Williams) filed a petition in the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, stating that he believed his rights under the Liberian Constitution (1986) had been violated by the TRC final report and was therefore seeking a “Declaratory Judgment”. After looking into his grievances, the Civil Law Court quickly determined that Williams’ petition presented a constitutional problem and that the matter was completely out of its hand. The lower court then subsequently forwarded the case to the Supreme Court, which is the battered nation’s highest court, for final disposition.
The High Court first heard the case on January 12, 2011, during its October term (2010) and by January 21, 2011, it had already reached a decision with the late Johnnie N. Lewis, who was Chief Justice at the time, delivering the court’s opinion (please see second bullet under the heading “Subsequent Developments” by clicking on the “case” link immediately above). This decision must have been significant to have Johnnie Lewis himself deliver it for the Court.
It is not immediately known how many counts Williams’ petition listed as reasons why he had brought the lawsuit, but count number 17 read: “Petitioner says that as a law abiding citizen of the Republic of Liberia, he has privilege to public employment and other forms of employment opportunities in Liberia, and such privilege is constitutionally protected which may only be taken away as a result of a hearing judgment consistent with due process,” something he said the TRC did not afford him.
“Petitioner has a vested interest in his employment privilege and livelihood, and is afraid that co-respondent Tah, at the instruction of the President of Liberia [Ellen Johnson Sirleaf], the ‘Head of State’ contemplated by the ACT, to begin enforcing the ‘recommendations’ of the now defunct TRC, the effect of which would be the arbitrary and unconstitutional loss of petitioner’s public employment privilege now and for the rest of his life as he may be too old to return to public service after thirty years. Petitioner submits that the enforcement of the challenged part of the TRC’s recommendations will infringe on petitioner’s need to make a livelihood and his right to the pursuit of happiness, “ count 18 read.
His petition then quoted Article 20(a) of the existing Liberian Constitution (1986) in count 19, which provides that: “No person shall be deprived of life, liberty, security of the person, privilege or any other right except as the outcome of a hearing judgment consistent with the provisions laid down in [the] Constitution and in accordance with due process of law. “ The above mentioned Article further states that: “Justice shall be done without sale, denial or delay and in all cases not arising in courts not of record, under courts-martial and upon impeachment, the parties shall have the right to trial by jury.”
Overcoming one big problem
But before the Supreme Court could get to the bottom of Williams’ case, it first had to overcome one big problem – determining who exactly the respondents to his petition were. For reasons best known to Williams and probably his lawyers, his petition had cited as respondents, Cllr. Christiana Tah, in her capacity as Minister of Justice and Attorney General as well as The Independent National Human Rights Commission (INHRC) then headed by the late Cllr. R. Leroy Urey.
When they responded to the Court’s summons, both Tah and Urey filed separate answers or returns, according to court documents. While they agreed that they were not contesting the allegations made by Williams that he was listed amongst the 49 persons on the TRC’s list, they challenged his standing to seek a ‘declaratory judgment’ on the constitutionality of the Act, which established the TRC and banning him and others from holding public office for thirty years. Cllr. Tah was apparently taken aback for being named as one of two respondents to Williams’ petition. Joining Cllr. Urey, she reasoned that: (a) the petitioner [had] not suffered disbarment from holding any public office, and (b) [Williams] had sued the wrong parties.
This problem was resolved when Williams added the Government of Liberia to his lawsuit. “In the brief filed by the Government of Liberia, and subscribed to by all of the respondents, the challenges to the capacity of the petitioner to bring the action was no longer an issue,” court documents also say. With this problem now behind them, the Court was left with only one issue to determine in this case – whether or not Section 48 of the TRC Act, which makes it mandatory for the President to implement the commission’s recommendations, was unconstitutional as applied to Section 14.3 of the TRC’s final report.
After deliberating the case in chamber, Justice Lewis rendered the Supreme Court’s decision as follows: “Wherefore and in view of the foregoing, it is the considered opinion of this Court that the portion of Section 48 of the TRC Act directing mandatorily that the President [Sirleaf] implements all of the recommendations of the TRC is unconstitutional, of no legal effect and therefore unenforceable, and it is hereby so declared.” The decision contained 12 pages.
“Accordingly, the Act of the TRC in adjudging the petitioner [Williams] guilty of certain criminal offenses and imposing a thirty year ban on him from holding any public office, elected or appointed, without according to the petitioner and all persons named in the TRC Report and subject to the ban, relying on Section 48 of the TRC Act as the basis for the decision, is unconstitutional and of no legally enforceable effect. The petition is hereby granted,” Justice Lewis further wrote.
The following persons made up the Supreme Court bench when this landmark decision was reached - Francis S. Korkpor, Sr, Gladys K. Johnson, Kabineh M. Ja’Neh, and Jamesetta H. Wolokollie – all of them Associate Justices. Korkpor, Ja’Neh and Wolokollie are still on the bench, while Lewis recently passed away after resigning from the Court. As for Justice Johnson, she too resigned from the bench a few years ago and recently started a firestorm when she boldly defended the so-called “Negro” clause in the Liberian Constitution. The clause was intended to deny white people from acquiring Liberian citizenship.
So, for those of you still wondering why certain portions of the TRC report have not been fully implemented (particularly, Sections 14.2 and 14.3), it is because the Supreme Court killed them. The Court ruled that these two recommendations were simply “unconstitutional and unenforceable.” This case is closed.
“This court is not unmindful of the sensitivity of the undertakings of the TRC, and the process that was involved in those undertakings. That makes it even more important that the TRC process adheres to every constitutional provision and mandate, especially in ensuring that all rights, including the rights of even those we believe to have committed offenses, are scrupulously guarded and protected,” Chief Justice Lewis also wrote on behalf of the bench.
But didn’t the commission know in advance that 14.2 and 14.3 would have been ‘dead on arrival’? Or did they (the TRC Commission) have a different intent? Seriously, what were they thinking about? Because if part of their intent was to “redress impunity, ensure accountability and maintain integrity in public service,” then they should have known from the very outset that Article 20(a) of the present Liberian Constitution, which precedes the TRC, prohibited such recommendations as the Court has since ruled.
From the look of things right now on the ground, the best hope for Liberians to ensure long-lasting peace and stability in their country is to send out a strong appeal - SOS message - to the international community to assist them in establishing a war crimes court similar to those found in countries like Rwanda and Sierra Leone. In that way, everyone can have his or her day in court.
Aside from the Supreme Court’s ruling in this case, does any Liberian in his or her right mind honestly believe that President Sirleaf could implement recommendations with dire consequences against herself if even they were binding? Personally, I doubt it! That’s why I am not sure why the TRC decided to propose these two recommendations since they were destined to hit a constitutional brick wall right from the very start.
About the author – James W. Harris is a U.S.-based journalist and communication professional. He is a longtime contributor to various Liberian online websites. He earned a BA degree (Magna Cum) in Journalism from the Prairie View A&M University of Texas and an MA in Public Communication from the American University in Washington, D.C. He can be reached at firstname.lastname@example.org.