Liberia: Does George Weah, as Outgoing President, Have the Authority to Nominate a New Associate Justice?

President George Weah and nominated Associate Justice, Cllr. Frank Musa Dean

By Julius Kullie Kanubah

Six years are never too long in a democracy with an electorally viable opposition and informationally empowered citizen-voters. The days of George Weah at the helm of the Presidency of Liberia are frankly numbered. In less than 25 days, Weah will assume the designation of former President of Liberia, a title he will jointly share with Ellen Johnson Sirleaf and **Charles Taylor–his only two living predecessors, since 1847 (pun intended)! In the days leading up to the end of his time in office, Weah is already being called outgoing President–a recognition that he is leaving the office or position of President after being defeated in the Presidential runoff election. Before he officially turns over power to the incoming President, the actions and inactions of President Weah between now and noon of January 22, 2024, will remain at the center of public interest. 

Except for his uncharacteristic boldness in Church about the internal dynamics surrounding the reactions of his core circle of loyalists to the electoral loss, Weah has been gracious in his actions since his defeat at the polls. For example, on November 22, 2023, he issued an Executive Order to establish the Joint Presidential Transition Team (JPTT), followed by a Presidential Directive on December 18, 2023, announcing “Measures to Safeguard State Resources During the Transition Period.” 

Yet the latest action by Weah to nominate a new Associate Justice to the Supreme Court on December 27, 2023, has raised eyebrows, sparking debates about the legitimacy and/or expediency of the nomination. Some, for example, Boakai Jaleiba of the incoming ruling party argue that the nomination is contradictory to Weah’s own Presidential Directive in which it is stated in Count 4 that, “All new employment and service contracts across Government Institutions are hereby suspended. There shall be no promotions and salaries increase during this transition period.” 

While Jaleiba goes on to question Weah’s alertness, this is not at the heart of his argument. Rather, like the institutionally unaligned and inactive/nonpracticing journalist, Rhodoxon Fayiah, Jaleiba is suspicious of Weah’s action to nominate a new Associate Justice at the exact time of the announcement in the same press statement that a sitting Associate Justice (Joseph Nagbe) had asked for early retirement on health grounds – a request President Weah accepted. 

Though it is not clear when the ailing Justice Nagbe asked for early retirement, Jaleiba argues that the timing of the nomination which, in his words, is “occurring subsequent to the President’s loss in the mandate to govern” … “implies a deliberate move” … with … “potential motives that might not align with the public interest or the principles outlined in the earlier directive.” Not least, Jaleiba is of the view that Weah’s action to nominate a new Associate Justice who has been sent to the Senate for confirmation “speaks volumes” because 11 of 29 Senators lost in their bid for re-election, something that amounts to a vote of no confidence in their abilities to confirm a new Associate Justice. 

As a Georgetown-educated policy analysis specialist, Jaleiba is worth listening to (verbatim) as regards his central arguments to the situation of the nomination of Cllr Musa Dean, Minister of Justice, as the new Associate Justice, replacing the ailing and now retired Joseph Nagbe:

“What adds a layer of complexity to this situation is the timing of Minister Musa Dean's appointment, occurring subsequent to the President's loss in the mandate to govern. This temporal alignment raises eyebrows and prompts speculation about the underlying intentions behind the decision. It suggests more than a mere oversight; it implies a deliberate move that demands closer scrutiny to discern potential motives that might not align with the public interest or the principles outlined in the earlier directive. Besides, sending this to 29 senators, including 11 who lost the confidence of the people, speaks volumes.”

The arguments by Jaleiba and others beg the question: does George Weah have the authority to appoint a new Associate Justice as outgoing President? 

In earnest, it might not necessarily be the argument of Jaleiba that President Weah does not have the authority to nominate a new Associate Justice. Rather, it is the ‘timing,’ ‘the President’s loss in the mandate to govern,’ the underlying intentions,’ ‘the deliberate move’, the ‘potential motives’, and ‘the misalignment with the public interest’ or ‘the principles outlined in the presidential directive.’ 

If, on the other hand, it is the argument of Jaleiba that Weah does not have the authority to nominate a new Associate Justice in the wake of a vacancy because of, in his words, “the President’s loss in the mandate to govern” in the wake of the electoral defeat, then, it is plainly wrong. This is because Executive Powers remain vested in President Weah. To frame it another way with evidence is to say that the President is President until he formally turns over Executive Powers to the incoming President who shall Constitutionally become President effectively immediately upon his inauguration (taking of solemn oath/affirmation) at noon on the third working Monday in January 2024.

 Article 50 articulates the vesting of Executive Powers of the Republic in the President as Head of State, Head of Government, and Commander-in-Chief of the Armed Forces of Liberia, while Article 53 speaks to the administration of oath or affirmation before entering on the execution of the duties of President.  

In this regard, it is constitutionally permitted for President Weah to nominate and appoint officials to and of government as enshrined in the Constitution of Liberia. Specifically, Article 54 of the Constitution stipulates that:

“The President shall nominate and, with the consent of the Senate, appoint and commission:

a) Cabinet Ministers, Deputy and Assistant Cabinet Ministers;

b) Ambassadors, Ministers, Consuls;

c) The Chief Justice and Associate Justices of the Supreme Court and judges of subordinate courts;

d) Superintendents, other county officials, and officials of other political sub-divisions;

e) Members of the military from the rank of lieutenant or its equivalent and above, and

f) Marshals, deputy marshals, and sheriffs.”

Article 55 also expands the President’s appointment powers by stipulating that:

“The President shall appoint and commission Notaries Public and Justices of the Peace who shall hold office for a term of two years but may be removed by the President for cause. They shall be eligible for reappointment.”

Considering the above constitutional provisions, especially Article 54(c), President Weah has the authority to nominate a new Associate Justice in the wake of a vacancy, because, as articulated in Article 50, Executive Powers are vested in Weah as President of Liberia. 

Jaleiba is also in error in his argument that President Weah in nominating a new Associate Justice acted in contrast to his own Presidential Directive in which he (President Weah) stated in Count 4 that, “All new employment and service contracts across Government Institutions are hereby suspended. There shall be no promotions and salary increase during this transition period.” 

For a starter, the Presidential Directive is not directed at the President or at Executive Powers. Rather, it is directed, “TO: All Government Entities including Ministries, Agencies, Commissions and State-owned Enterprises.” As a Directive FROM The President, the Presidential Directive cannot undo the Executive Powers of the very President issuing the Presidential Directive in furtherance of the exercise of Executive Powers, which are vested in the President. 

More importantly, the Presidential Directive is NOT above the Constitution which is the supreme and fundamental law of Liberia as stated in Article 2 of the Constitution which emphasizes that, “Any laws, treaties, statutes, decrees, customs, and regulations found to be inconsistent with it shall, to the extent of the inconsistency, be void and of no legal effect.”

In short, George Weah does have the authority to nominate a new Associate Justice as President of Liberia, whether out-going or lame-duck. Since motives and intentions can be hard to discern unless explicitly made clear by the individual harboring the motives or intentions, what could be argued is whether it is politically prudent or expedient for George Weah as an outgoing President with less than 25 days in power, to nominate a new Associate Justice, whom, when confirmed by the Senate and appointed by the President will have significant impact on matters of the interpretations of laws in our Country? 

Our answers to this question depend on which side of the political divide we belong to or how we appreciate the role of the Supreme Court in the governance of our country. I suggest we redirect our questions and answers to the character and reputation of the newly nominated Associate Justice. What is his level of competency? What is his integrity level? To what extent can he be trusted to render impartial justice as an Associate Justice? Answers to these questions are central to who becomes Associate Justice and the consequences thereof for the administration of justice in Liberia. #mylongread

About the authorMr. Julius Kullie Kanubah, affectionately called JKK, is a two-time award-winning journalist of the Press Union of Liberia, with nearly two decades of professional work and education in journalism, media, communication, economics, development, and governance. As a man who wants to bring Credibility, Integrity, and Dignity to the PUL, Kanubah is a contestant for the presidency of the union but the election is yet to be held as a result of an ongoing legal battle that has lasted for over a year. The union has been embroiled in a legal tussle due to fraudulent activities by some unscrupulous individuals who were in charge of the 2022 PUL Elective Congress.   Kanubah describes himself as simple, down-to-earth, highly motivated and God-fearing. He is passionate about economic development, and he hates wicked politicians who use the masses for selfish gains by corrupting the system and keeping people in prolonged and abject poverty.