OPINION: Justice Nagbe’s Request for Early Retirement and Cllr. Dean’s Nomination as His Successor: My Perspective

MONROVIA-JAN-1-TNR–A firestorm of controversy has ignited since news broke of the “retirement” of  Justice Joseph Nyenetue Nagbe due to ill health and the nomination by the President of Cllr. Frank Musa Dean to succeed him. The controversy centers around the legality of the “retirement” as well as the timing of the nomination.

The arguments are that Justice Nagbe is not qualified for retirement because he does not satisfy the requirements for retirement as provided for under the New Judiciary Law and that a lame-duck President can not nominate or appoint his successor.

I will construct my argument on three issues which are germane to providing an understanding of the controversy:

1. Does Justice Nagbe’s request for retirement meet the legal requirements for the retirement of Justices of the Supreme Court?
2. If not, can the President exercise his executive authority to grant him a special dispensation for retirement?
3. Whether or not the President’s powers to nominate and appoint officials of government are limited at any time during his tenure?

Issue #1 presents a question of Justice Nagbe’s eligibility for retirement. But here

are the facts upon which a determination can be made as to his qualification for retirement, or upon which the retirement law can be applied. Justice Nagbe was appointed to the Supreme Court in June 2018, about five and half years ago. He did not serve in any other judicial capacity. He was a legal practitioner and later a Representative for two years and a Senator for twelve and half years.

Section 13.4 of the Judiciary Law – Title 17 – the Liberian Code of Laws Revised, provides in Subsection 3 (sic) that “Any Justice, judge or stipendiary magistrate … who has served continuously for 10 years or more in any such capacity and has been certified, after appropriate physical or mental examination by competent medical authorities that he has become permanently disabled from performing his duties, or who has completed at least 25 years of continuous judicial service or at least 30 years of cumulative judicial service, may retire from regular active service with the right to receive a retirement pension….”

That’s what the law says. Even though Justice Nagbe has 20 years of cumulative public or government service both in the Legislature and the Judiciary, he served only five and half of those years in the Judiciary; that’s four and half years short of the tenure requirement for retirement. This is the only eligibility requirement for retirement, and he falls short of that.

Issue #2 pertains to and brings to focus the executive authority of the President as head of state and head of government.

“The Executive Power of the Republic shall be vested in the President who shall be Head of State, Head of Government and Commander-in-Chief of the Armed Forces of Liberia.” Constitution of Liberia, Article 50.

As “Head of State and Head of Government,” the constitution gives the President enormous powers, called the enumerated powers of the President. Some of such powers are found in Article 59 of the constitution: “The President may remit any public forfeiture and penalties, suspend any fines and sentences, grant reprieves and pardons, and restore civil rights after conviction for all public offenses, except impeachment.”

Coming with the enumerated powers of the President are unenumerated powers, which follow from the interpretation of the enumerated powers. For simplicity, unenumerated powers are implied powers or powers not individually listed in the constitution. Issuing Executive Orders, for instance, is an unenumerated or implied power of the President.

Unenumerated powers are implied powers, and in the exercise of them, the President must act lawfully (paraphrased), as opined by the U. S. Supreme Court in the President Harry Truman’s Steel Factory Seizure Case of 1952.

And the reasoning for unenumerated powers is that if the President is the head of state and head of government, and has inherent or enumerated powers (i.e. constitutionally) to do certain things, then it follows that the President can do other lawful things arising from or consequential to those enumerated powers. So, if the President, for example, can “grant reprieves and pardons, and restore civil rights after conviction for all public offenses,” in exercise of his enumerated powers, then it follows that the President can also grant certain unenumerated rights or benefits to public officials and ordinary Liberians. Therefore, the President can grant Justice Nagbe retirement, which is lawful.

And thanks to the President for granting his request for retirement. I believe, in making this decision, the President gave due consideration to Justice Nagbe’s cumulative 20 years of public service, and the untold hardship that he would suffer — even to the detriment of his life — if he had no income to take care of himself and pay his medical bills. Remember, Justice Nagbe got sick while serving his country.

As to issue #3, which is the most straightforward of the three, the President is the President for six years, beginning at noon on the third working Monday of January 2018 and ending at noon on the third working Monday of January 2024, and can perform all his constitutionally assigned functions, including implied functions arising therefrom, until the end of his tenure or his last day in office.

In other words, there is no constitutional prohibition or limitation on the powers and authority of the President until he leaves office. So, the President acted in his constitutional authority to nominate Cllr. Dean as Associate Justice. And this act of the President can not be questioned by any other Branch of the Government, under the political question doctrine, because it’s not unconstitutional.

The problem with that nomination, however, is that the Senate may not have ample time to diligently vet the nominee for this high-profile position. We are in a special session lasting only two weeks, with one week gone already.

Senator Augustine S. Chea

Vice Chair

Senate Judiciary Committee

Alphonso Toweh

Has been in the profession for over twenty years. He has worked for many international media outlets  including: West Africa Magazine, Africa Week Magazine, African Observer and  did occasional reporting for CNN, BBC World Service, Sunday Times, NPR, Radio Deutchewells, Radio Netherlands. He is the current correspondent for Reuters 
 He holds first  MA with honors in International  Relations and a  candidate for second master in International Peace studies and Conflict  Resolution from the University of Liberia.