‘Deep Division’ Looms

-As Legislature, Judiciary On Who Owns More Power

By Reuben Sei Waylaun

Once again, the tiny West African nation Liberia, a country whose constitutional preamble taunts its people with immense indivisibilities and civil liberties, appears to be headed for a deep division as two powerful branches of the government clash over the impeachment of one of five Justices currently serving on the country’s Supreme Court bench, the nation’s highest constitutional court, lawfully regarded as the final arbiter of justice in the land.

A complex constitutional stalemate is once again evolving in the Liberian governance structure as the nation’s House of Representatives and the country’s constitutional court (the Supreme Court of Liberia) engage each other in a tit-for-tat display of political muscles over ongoing impeachment process of Associate Justice Kabineh Mohammed Ja’neh.

“There’s nowhere in the history of this country that an impeachment bill has been stopped by anyone. Not one, are we aware of. This is a clever attempt to create a dictatorial branch of government within the state. It’s a gross disrespect to the first branch of government which has the people’s power, the only body clove with constitutional authority to prepare an impeachment bill against a sitting judge in this country,” Representative Moses Acarous Gray, one of several proponents of the impeachment petition submitted to the House of Representatives three weeks ago defiantly asserted as the Supreme Court letter was being read in plenary by Chief Clerk Mildred Sayon.

The Montserrado legislator further accused the nation’s High Court of undermining the constitutionally prescribed function of the members of the House of Representatives, warning that the House will not be bullied into mere posturing by members of the High Court, saying, “The letter from the Justice –in-chambers Sie-A-Nyene Yuoh is a complete usurpation of our function as provided for in Article 43 of the Liberian Constitution hence, we cannot honor this notice,”

Composition of Current Supreme Court Bench

The Liberian Supreme Court currently has four judges pending confirmation of newly appointed Associate Justice Joseph Nagbe, Senator of Sinoe County.  President George Weah recently appointed Senator Nagbe to the Supreme Court bench after veteran legal luminary Phillips A.Z. Banks retired from active public service. The four remaining judges include His Honor, Justice Francis S. Korkpor, Sr., Chief Justice of the Supreme Court of Liberia; Associate Justices Kabineh M. Ja’neh, Jamesetta Howard Wolokollie and Sie-A-Nyene Yuoh.

Petitioners’ Petition/Impeachment Background

The latest constitutional episode began barely three weeks when a group of Representatives presented a petition to the House’s plenary calling for the impeachment of Justice Kabineh M. Ja’neh. The petitioners, led by Representatives Moses Acarous Gray and Thomas P. Fallah accused Justice Ja’neh of proven misconduct, corruption, theft of property and gross abuse of power, among other charges.

The Plenary of the House of Representatives in response to the petitioners’ request acted by setting up an ad-hoc committee to investigate and make report to that body in three weeks’ time. The committee’s report is still pending before that august body, but political bickering and maneuvering over the issue continues unabated.

“Honorable Speaker, fellow colleagues, we the petitioners plead with this honorable body to prepare an impeachment proceeding against Justice Ja’neh for gross abuse of power, corruption, proven misconduct, theft of property, among other charges. We seek your indulgence on this request for this body to prepare an impeachment proceeding against Justice Ja’neh,” the petitioners said in their petition to the House of Representatives.

Justice Ja’neh’s Response to Petitioners

Justice Ja’neh in his first response to the petitioners filed a petition through a group of Liberian lawyers to the Supreme Court asking the High Court to prohibit any further proceeding on the impeachment at the House, a demand the Supreme Court yielded to.

“You are hereby commanded  to notify The Honorable House of Representatives of the National Legislature by thru and its Speaker, Respondent, in the above entitled case of action to appear before Her Honor Sie-A-Nyene Yuoh, Associate Justice presiding in Chambers of the Honorable Supreme Court of the Republic of Liberia, Temple of Justice, on this 18^th day of August  A.D. 2018, at the hour of 9:00, to show cause why PETITIONER’s petition as prayed for should not be granted  and you are hereby commanded to instruct the Respondent to stay all further proceedings in the matter, and that the parties are ordered Returned to Status Quo Ante, pending petitioner disposition of the petition,” the Supreme Court instructed the House in its notice.

Article 66 of the Liberian Constitution also provides that the Supreme Court has legal jurisdiction to oversee all constitutional matters in the country, including those that do not emanate from within the ambiance of the court.

Article 66 of the Liberian constitution states that: “The Supreme Court shall be final arbiter of constitutional issues and shall exercise final appellate jurisdiction in all cases whether emanating from courts of record, courts not of record, administrative agencies, autonomous agencies or any other authority, both as to law and fact except cases involving ambassadors, ministers, or cases in which a country is a party. In all such cases, the Supreme Court shall exercise original jurisdiction. The Legislature shall make no law nor create any exceptions as would deprive the Supreme Court of any of the powers granted herein.”

However, the plenary of the House of Representatives replied to the court’s intervention in the ongoing impeachment process against one of its members by accusing the High Court of gross interference and a usurpation of the function of the members of the House of Representatives, also citing Article 43 as its reliance.

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

“This is a clear violation of Articles 43 and 44 of the Liberian Constitution, provisions which gave the exclusive right to the House of Representatives to prepare an impeachment proceeding against a sitting judge of the Supreme Court bench, and we will not accept this notice,” Representative Gray also vowed.

Representative Gray’s argument was also supported by fellow legislator Francis Dopoh of River Gee County who, for his part, denounced that, “The Supreme Court cannot be the one telling us that we should stop with an impeachment proceeding because the constitution gives us the right to do so.”

Meanwhile, the plenary of the House has suspended all its standing rules in order to allow it reach the decision it reached   on the High Court’s stay order notice.

“To say that we do not have the right and we should go to the Supreme Court to explain why we are trying to impeach Justice Ja’neh suggests to me that we should allow all judges in this country to go with impunity when they commit wrong against the constitution of this country, and this is something we should not pay heed to,” Montserrado District#17 Representative Hason Kiazolu told a team of legislative reporters immediately after Tuesday’s session.

Representative Samuel Kogar Counters the Petitioners’ Argument

Despite support from an overwhelming number of lawmakers who backed calls for the trashing and or disobeying of the Supreme Court’s stay order notice on the ongoing impeachment proceeding, Nimba County legislator Samuel Kogar appeared to be the lone voice in plenary that put up a solid resistance but felt prey to the numerical strength of fellow lawmakers who defeated his argument and subsequent call for sober reflection before the House acts on the matter.

“Article 66 of the Liberian Constitution gives the right to the Supreme Court to hear all constitutional matters in this country, and I think we are proceeding hastily and wrongly with this matter. I therefore suggest that we should do more consultation in order to come up with the right decision on this matter,” Representative Kogar suggested to fellow legislators who paid deaf ears to his warning.

PLENARY’S DECISION

In spite of Representative Kogar’s apparent defense of the Supreme Court’s integrity, the plenary of the House of Representatives still took its decision to reject the High Court’s call for a conference with members of the House of Representatives to provide explanation on why it is proceeding with ongoing impeachment action against one of its members.  After series of intense and heated debates which latest a little over an hour, Montserrado Representative Dixon Seboe of District#16 filed a motion for plenary to mandate the Chief Clerk Mildred Sayon to write Justice in-Chamber Sie-A-Nyene Yuoh that the High Court’s letter to the House will not be honored, further accusing the nation’s constitutional court of interference and a usurpation of the House’s function.

“I move, if I can be seconded, Honorable Speaker, distinguished colleagues, that this House should reject the Supreme Court’s stay order letter, and communicate with Justice –in-Chambers Sie-A-Nyene Yuoh that we will not appear before that bench because we are in no error as far the constitution is concerned on this issue,” Representative Seboe filed in the motion which received enormous backing from fellow lawmakers on the floor.

“The issue here is that there’s no trace of history in which this House has been stopped from preparing a bill of impeachment in this country and so, this is really a non-issue, and I think this notice from the court should be treated as if it never existed,” House Speaker Chambers added his voice to the many resentments which emanated from the House’s floor upon the reading of the High Court’s letter.

However, a motion for reconsideration was filed by Representative Samuel Kogar who pleaded with his colleagues for a sober, cautious, and reflective response on the brewing constitutional crisis, warning, “I think we are taking a hasty approach on this issue, and I think we need to rethink our action.” Ten lawmakers voted to defeat lawmaker Kogar’s motion for reconsideration, one against, and no abstention.

Analysis/ A Replay of 2016 Constitutional Crisis which threatened the Collapse of the then Ellen Sirleaf Government

It may be recalled that similar constitutional crisis erupted in 2016 during the erstwhile Ellen Sirleaf regime which practically paralyzed the government’s development projects and programmes across the country.

In 2016 a prolonged political stalemate over the Global Witness’ bribery allegation against the ex-Speaker J. Alex Tyler and other top government officials, including their arrest, and subsequent prosecution, saw the country’s three branches of government embroiled in a bitter, confrontational display and acceleration of power between the Executive, Legislature and Judiciary branches of the Government, a crisis which brought the entire country to an eventful standstill, as the economy and other development activities came to a noticeable halt.

Speaker Tyler, by then, faced moral charges from fellow lawmakers calling themselves majority bloc, who asked the then Speaker to step aside in order to clear his name from the Global Witness corruption charges over his alleged involvement in kickbacks reportedly received during the sale of the famous oil bloc 13 offshore Liberian territorial waters.

The situation, by then, produced dramatic and tense moments in the country, almost bringing the government to its crawling knees as the Speaker was being heavily backed and shielded by his own bloc of Representatives who appeared to be in the minority. The situation practically paralyzed government functionaries in the country and underpinned revenue generation.

Though the GW’s corruption matter is still being addressed through the court, thanks to the intervention of the National Traditional Council of Liberia, the Liberia Council of Churches (LCC), the Interfaith Mediation Council of Liberia, and other prominent and foreign state actors whose interventions prevailed on the then Speaker to submit to the judicial process, it is still a matter of time to determine whether the Weah administration, already weakened by whooping economic crisis, coupled with unprecedented inflation, is actually able to cope with the scale and magnitude of the backlashes that may arise a result of the ongoing rigmarole between the House of Representatives and the Judiciary.

Subtle Detail in Justice Ja’neh’s Removal Episode

At the moment, given the enormous pressure that the George Weah’s administration is currently facing, fencing for itself amidst heightened inflation and increased economic hardship, no one seems to be comprehending quite frankly, all this push for the removal of a sitting judge on the Supreme Court’s bench, a situation if not carefully handled, could see the country painfully dragging itself into another round of constitutional crisis.

Kabineh Ja’neh, regarded as one of Liberia’s astute legal minds, has long been targeted by topnotch CDCians as a strong opposition to the Weah presidency, unconfirmed reports have claimed.  At one point in time, he was accused of backing a particular candidate in the 2017 presidential race, though his office has since condemned such reports.

During the 2017 bitter post-election dispute, he was the only Associate Justice to have openly descended on the Supreme Court’s verdict on the outcome of the elections in which the Liberty Party (LP), Unity Party (UP) and the Alternative National Congress (ANC) challenged in court, alleging widespread fraud, massive irregularities and or cheating by the National Elections Commission (NEC).

Though a majority member of the High Court agreed that there were some level of limited fraud and human errors that occurred during the conduct of the polls, the Supreme Court’s ruling noted, “those irregularities could not however amount to the cancellation and the rescheduling of the elections as prayed for by the opposition political parties.”

Justice Ja’neh’s opinion ran contrary to the majority of Justices on the bench, which largely agreed fundamentally with the opposition political parties that there were massive fraud and irregularities tantamount enough to overturn the elections’ results.

Justice Jan’neh’s descending view in the case, according to insiders, did not go down well with many CDCians, including its top executives, and he has been reportedly tailed to payback for his alleged stubbornness in not supporting the Weah’s presidency.

Up to this moment, Justice Ja’neh is seen by many top CDC officials as the only spoiled apple amongst the rest of the High Court Justices, and that a search for ways on his possible impeachment has long been sought, unverified reports say. However, whether or not those reports are believed to be true-only time will tell the real meaning of all these interesting developments unfolding in the country in the coming weeks and months.

Experts’ Perspective on How the Current Constitutional Saga May be Resolved between the House and the judiciary

Given the sprawling constitutional ambiguities and loopholes in the ongoing debate over various interpretations and acclamation of rights and provisions (articles 73, 43, 44, 66) within the Liberian constitution, coupled with the economically unstable nature of the Weah Government, constitutional experts speaking to the ‘Liberian Network’ on the basis of anonymity have postulated that the evolving constitutional crisis may be resolved through similar inventions that were experienced during the 2016 Alex Tyler removal episode.

It’s unclear how and when such interventions may arise, but the rapidity of concerning developments, according to experts, “may push local and foreign state actors to quickly intervene in order to avoid the situation growing to a lopsided state.

“In America and other strong Western democracies across the globe, it is a good thing to see one branch of government checkmate the other in terms of upholding the rule of law but, for Liberia, whose governance systems and economy are still very weak and poorly performing, the current situation may not be unique, applicable, and timely. This kind of democratic checks and balances is not unique to Liberians. We still have some time to mature before we get to the level of the Americans,” one observer said to the Liberian Network in an exclusive interview a fortnight ago.

“Before venturing into this kind of democratic application, we must, first and foremost, build our democratic institutions, develop and change the mentality of our people in terms of how they respond to critical national issues. We also need to build the patriotic conscientiousness of our people and continue to educate them on how the three branches of government need to work in collaborative, distinct, separate and coordinated manner.”