“They want the President to agree that the Court should be established but if he does that, he will be violating the Constitution,” Solicitor General, Cephus said. “There is a clause that says ‘any other act that undermines the Constitution constitutes treason. And that will be grounds for impeachment.”
President George Weah's unwillingness to establish a war crimes court to confront the legacy of the country's 14-year civil war, which killed an estimated 250,000 people, has been described as a “deliberate measure aimed at safeguarding the country’s Constitution and peace.”
This rare revelation from Cllr. Sayma Syrenius Cephus, the country’s Solicitor General, who is tasked with litigating the interests of the Liberian government at all courts, comes as Liberians remain divided about the establishment of war crimes court, despite major pressure from the international community to prosecute wartime atrocities.
“The government’s reluctance to establish a [war crimes] court is deliberate and it is in the right direction,” said Cephus, who was also tasked with defending the constitutionality of enactments at Cllr. Arthur Johnson’s book launch on Economic and War crimes on June 10. “It is meant for the protection of the Constitution and the peace of the country."
“To establish the Court will require an extra-Constitutional arrangement and the only time this is possible is when there is no sovereign and legitimate government on the ground.”
The TRC, which operated between 2006 and 2009, recommended creating a war crimes court – the Extraordinary Criminal Court for Liberia – to try those responsible for grave crimes committed. Many of the TRC’s recommendations, including for the war crimes court, have never been carried out.
During Liberia’s armed conflicts from 1989-96 and 1999-2003, Liberians suffered widespread violations of international human rights and humanitarian law such as mass killings, rape and other forms of sexual violence, summary executions, mutilation, and torture, and use of child combatants.
But more than a decade later, the court is yet to be established and critics of the court’s establishment from the administration of former President Ellen Johnson Sirleaf to that of President Weah have cited challenges that would often arise, should such a court be established.
Such includes protection and support for witnesses and victims, security for judges and staff, assuring fair legal process, and educating the local population about the court. Cephus argues that any attempt by Weah to approve the establishment of a war crimes court would amount to Constitutional violation — paving way for his impeachment.”
Citing Article 34 (e), of Liberia’s 1986 Constitution, Cephus believes that the article creates an impediment to the establishment of the war crimes court … as the clause prevents the Legislature from ascribing unto itself any authority to establish any court to have higher power than the Supreme Court.
Article 34 (e) states that the Legislature shall have the power “to constitute courts inferior to the Supreme Court, including circuit courts, claims courts, and such courts with prescribed jurisdictional powers as may be deemed necessary for the proper administration of justice throughout the Republic.”
And Article 66, prohibits the legislature from making law nor creating any exceptions as “would deprive the Supreme Court of any of the powers granted herein.”
“They want the President to agree that the Court should be established but if he does that, he will be violating the Constitution,” Cephus said. “There is a clause that says ‘any other act that undermines the Constitution constitutes treason. And that will be grounds for impeachment.”
“Another impediment for the establishment of the court is that only Liberians are eligible to practice law in Liberia and become judges and, until those clauses are amended, it will be difficult to establish and run an effective war crimes court in the country.”
Cephus's position, which might likely now be the thinking of the Weah administration, as a result of its flip-flopping stance on the court establishment, comes nearly a year after the Senate had recommended to Weah set up a Transitional Justice Commission (TJC) to audit the Truth and Reconciliation Commission (TRC) report to determine if the commissioners of the TRC complied with their mandates such as the face-to-face meetings between perpetrators of crimes and other offenses and their respective victims in light of allegations from some former warlords that they were never contacted.
The mandate of the TJC, according to the Senate, is to analyze credibility and legitimacy issues surrounding the final report of the TRC in respect of the fact that “four of the Commissioners had serious issues with the report and consequently, two of the commissioners did not sign the final report but instead presented a dissenting report.
Re-echoing Cephus's argument, Cllr. Pearl Brown Bull, a former commissioner of erstwhile TRC, said that the presence of the court would lead to constitutional impediments.
Bull said there is no need for the establishment of war and economic crimes courts because there are constitutional impediments.
She argued that the Weah administration needs to be conscious of the constitutional inhibitions to establishing such a court, but should form a committee to engage the country in finding lasting solutions to the wounds incurred from the wars and ensure there is a holistic national reconciliation.
Relying on Article 97, Bull, a signatory to the 1986 Constitution, noted that the article prohibits punishing all those who committed human rights abuses and crimes before the coming into operation of the 1986 Constitution, since the TRC mandates investigating gross human rights violations that occurred in Liberia between January 1979 and 14 October 2003.
“From 2007 to 2009, we were on the radio talking about the TRC, but you people did not listen. Let us stop the hatred and the malice,” Cllr. Bull said. “There were two alternatives and TRC is a transitional justice mechanism. It is an alternative to the War and Economic Crimes Court but not the end in itself."
“[President Samuel K.] Doe and his men knew they did wrong and wanted to have a shield to return to civilian rule. That Article was not repealed. To be repealed it has to be by a referendum. That immunity was given to them by the late Dr. Amos Sawyer’s Constitution Review Commission [who] left it in the draft they submitted to us (the Constitution Advisory Council). We, too, were afraid to tamper with it because of the imminent threats. We let it be and until that part of the Constitution is repealed, no one from the 1980s can be tried for war crimes in Liberia.”
Article 97 (a), which Bull is relying on, declaring that “No executive, legislative, judicial or administrative action taken by the People's Redemption Council or by any persons, whether military or civilian, in the name of that Council pursuant to any of its decrees shall be questioned in any proceedings whatsoever; and, accordingly, it shall not be lawful for any court or other tribunal to make any order or grant any remedy or relief in respect of any such act.”
Meanwhile, Cllr. Bull's latest remarks lend clarity to a 2018 article in the Frontpage Africa newspaper, in which she urged the Weah government and the legislature to do something about the TRC report.
“We need justice in this country and the TRC report will help us get everlasting peace, unity, and reconciliation in this country,“ Bull is quoted by the newspaper. “For the past nine years, I have been going from country to country calling for the implementation of the TRC report.”
So for her, the TRC report is useful to the end that a non-judicial process to address atrocities would be more legally appropriate than a war crimes court.
On Oct 14, 2009, Cllr. Bull, then as TRC Commissioner with oversight responsibility for Margibi and Montserrado Counties, was quoted by the Informer newspaper that the TRC report was illegal and ultraviolet and does not form the basis of peace and security of the state. She argued that the report tends to entangle not only the people of Liberia but to all including the disparagement of the President of Liberia.