Liberia: New LACC Act Suffers Setback

.... The writ issued by the Supreme Court of Liberia has technically placed a restraining order on the Executive branch from taking action to replace  Martin and his team of commissioners till a full determination is made on the matter.

The Supreme Court of Liberia has issued an injunction prohibiting the Ministry of Justice from executing the newly restated Liberia Anti-Corruption Commission (LACC) Act, which President George Weah signed into law a few months ago. 

The Court decision came in response to a  "writ of prohibition" filed by the Executive Director of the LACC, Cllr. Edwin Kla Martin, requesting the Court to forbid the Weah administration from enforcing the restated act which, among other things, dissolved the current workforce of the anti-corruption watchdog including Martin's tenured position.

“You are hereby commanded to notify the Ministry of Justice, Republic of Liberia, respondent in the above-entitled case, of action to appear and file its returns before the full bench of the Supreme Court on November 10 to show cause why the petitioner’s petition should not be granted,” the Court said in writ issued under the signature of the Clerk of Court Sam Mamulu.

The Court then ordered that the implementation of the restated LACC Act be placed on hold until a ruling is made.  This decision came after the Justice in chamber, Associate Justice Yussif D. Kaba, forwarded Martin’s complaint to the full bench without ruling on the merits of the case, since it borders on constitutional issues that can only be heard and determined by the full bench of the court.

Kaba’s decision to allow his colleagues and himself ample opportunity to study the merits before a final ruling can be made is in line with the country’s 1986 Constitution, which prohibits a single chamber justice to issue a decision on constitutional provisions.

Martin, in his recent legal action against the government, noted that the 2022 legislative amendment of the 2008 Act establishing the LACC was in violation of the 1986 Constitution. He argued that the restated LACC act amounts to a breach of contract as the government was in error to dissolve his tenured position, then recreating the same. 

Part XVI of the restated act, according to Martin,  was also discriminatory and completely in violation of the country’s 1986 Constitution, saying the law should not be allowed to exist as to impede the efforts of the LACC and other integrity organizations to uncover corrupt officials.

The section, as quoted by Martin, mandates the Weah government to ensure that the current LACC senior management team remains in office until their successors are appointed. 

Part XVI of the law, which focuses on transitional provisions, says: “All the commissioners now serving the LACC shall remain in office after the enactment of this new law, until their successors are appointed, but each is eligible to apply and be subjected to the appointment procedure provided for under this law.” 

His suit against the government is the latest in a long-running debate around the restated LACC act, which he claims will be used to suppress the fight against corruption in Liberia. Critics of the legislation claim that it represents a broader attack on the fight against corruption in a country that is already corrupt and would undermine the gains made by the current LACC leadership in exposing corruption in the executive. 

The restatement, according to Martin, is a dangerous escalation made to silence him for coming down hard on public officials involved in corruption.

Martin's suit also noted that sections 16.1 and 16.2 of the new LACC Act clearly and flagrantly violated the principles and doctrine of “ex post facto law” as enshrined in article 21 of the 1986 Constitution of Liberia.

Article 21 (a) states that: “No person shall be made subject to any law or punishment which was not in effect at the time of the commission of an offense, nor shall the Legislature enact any bill of attainder or ex post facto law.”

Martin’s contention comes as President George Weah has established an Ad-hoc Committee for the recruitment of the new LACC commissioners, replacing the old ones.  However, the writ issued by the Supreme Court of Liberia has technically placed a restraining order on the Executive Branch from taking action to replace Martin and his team of commissioners until a full determination is made on the matter. 

The LACC is the agency of government that is leading the fight against corruption in Liberia. The Commission was established in 2008, through an Act of the Legislature. Among others, LACC has the mandate to prevent corruption as well as investigate and prosecute all corruption-related cases and offenses.

In July 2022, the 2008 Law creating the Commission was amended and restated, thus creating a new LACC to be managed by a seven-member board of commissioners, instead of the five commissioners provided for in the 2008 Act. 

But Martin had argued that the law passed by the legislature on July 22 cannot affect him as he was nominated by the President and confirmed by the Senate for a period of five years before the passage of the law and therefore the law is ex post facto. Martin told the Supreme Court that the decision by the legislature to pass such an act meant that they were taking on to themselves the power of dismissing him, which is legally the responsibility of the President.

The Country’s Anti-Corruption Chief said he can only be removed for gross breach of duty, misconduct in office, or any proven act of corruption as enshrined in article 6.8 of the 2008 act creating the LACC.

Article 6.8 states that: “A Commissioner shall hold office during good behavior. A Commissioner shall be removed from office by the President for any gross breach of duty, misconduct in office, or any proven act of corruption.” “Laws are not retroactive,” Martin told the Daily Observer in an interview a few months prior to the passage of the restated LACC Act. “You cannot use the ex post facto law, which has no ground in our legal jurisprudence to begin an action that is already in play.” 

“We welcome LACC having the full right to prosecute but detest the attempt to dissolve the tenured positions we hold, simply because you want to reintroduce the same tenured positions. It is illegal and this is why we are against it.”

Since his takeover at LACC, Martin has spearheaded the investigations and indictments of several government officials, which, according to sources, have landed him in hot water.