Liberia: Supreme Court to Issue Landmark Ruling on Tenured Positions
— Landmark court decisions, particularly those arising from constitutional claims, inevitably establish precedents.
The Liberian Supreme Court is poised to announce a historic decision today in a case that may either increase or reduce presidential control over tenured positions.
The Court's ruling will determine whether President George Weah or any future Liberian president has the broader authority to dissolve a tenured position and subsequently reconstitute it.
Whatever the court decides, the lawsuit involving the implementation of the restated and amended Liberia Anti-Corruption Commission (LACC) Act, which President George Weah signed into law in 2022, would then create a precedent.
The precedent would specify whether the government action was legitimate or not, while also defining its scope and bounds. Landmark court decisions, particularly those arising from constitutional claims, inevitably establish precedents.
If the court rules in Weah's favor, it would quiet his detractors, who have not only questioned the legitimacy of his decision but also alleged that it symbolizes the deliberate undermining of the war against corruption in a country where integrity, transparency, and accountability are grossly endangered.
If not, Weah's administration's claims of restating the LACC Act as part of a broader effort to improve the fight against corruption in the country would be called into question, validating critics' claims that it was done to undermine the gains made by the current LACC leadership in exposing corruption in the executive.
The case, which the Court is ruling on today, arose from a petition filed by the LACC's Executive Director, Cllr. Edwin Kla Martin, asking the Court to declare sections 16.1 and 16.2 of the amended and reinstated LACC Act unconstitutional.
The case reached the full bench of the Supreme Court after the then Chamber Justice, Yussif D. Kaba, forwarded it without ruling on the merits of the case.
It is Kaba's legal view that the arguments propounded by Martin need the interpretation of the Supreme Court since they border on constitutional issues.
The restated law has been slammed by civil society organizations, opposition senators, and Martin, who call it dangerously “repealed” with the intent of undermining strides being made at LACC to expose alleged corrupt officials.
However, the President and proponents of the Act have lauded it as a long-overdue reform that broadens the area of operation and provides the new LACC direct and immediate prosecution power, which the existing LACC has, albeit with limitations.
Martin’s lawyer, in his legal action, claimed that the 2022 amendment of the 2008 LACC Act amounts to a breach of contract as the government was in error to dissolve his tenured position and recreate the same.
His lawyer claimed that the old LACC Act, in Section 6.8, provides that a commissioner “shall hold office upon good behavior and should be removed from office by the President for any gross breach of duty, misconduct in office, or any proven act of corruption.”
This was not the case, according to Martin's lawyer, who stated that the statute should be repealed since it impedes the efforts of the LACC and other integrity organizations to discover corrupt officials.
However, the Ministry of Justice refuted the assertion, asking the Supreme Court to reject the lawsuit on the grounds that it questioned the legitimacy of the legislature's ability to pass and change laws without limitation – and that any decision to the contrary would establish a dangerous precedent.
The Ministry of Justice's position was countered with the claim that the legislative enactment of the LACC Act was approved without any proven or legitimate cause which “clearly violates petitioner’s rights to due process of law as provided for under Article 20(a) of the 1986 Constitution.”
“Section 16.1 and 16.2 of the restated LACC Act, was not in conformity with the principles and doctrine of ex post facto law as enshrined in Article 21 of the Constitution,” Martin’s lawyer argued. “It contains provisions that are not applicable and, if allowed to hold, would be a gross violation of the principle and doctrine of the ex post facto law as enshrined in Article 21 of the 1986 Constitution. The new act seeking the immediate removal of the LACC chairman and other commissioners is illegal.”
Article 21 of the 1986 Constitution, which Martin's lawyer is quoting, 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.”
The legislature’s decision to wholly restate the LACC act of 2008 came after Weah had requested in 2021 to adopt a ‘minor adjustment’ to the act to give the commission direct power to prosecute.
However, the adjustments have been criticized for unjustifiably limiting the Commission's capacity to connect with the public and provide updates on the progress of investigations, which is more than required for openness, accountability, and other relevant reasons that best serve the public interest.
The legislative amendment severely reduced the competence of the re-established LACC, as it no longer allows the LACC “to cause the freezing of assets of a person or persons being investigated or prosecuted for alleged act or acts of corruption.”
Freeze of assets is now restricted to person(s) representing flight risk or those who have fled the bailiwick of the Republic of Liberia.
It also limits people’s access to information as well as LACC’s openness and responsibility to the public and stakeholders: Section 10.9 limits the Commission by imposing unreasonable secrecy, which prevents it from sharing fundamental information with the public about its interactions until an indictment is issued.
Such a clause, according to critics, unjustifiably limits the Commission's capacity to connect with the public and provide updates on the progress of current investigations, which is more than required for openness, accountability, and other relevant reasons that best serve the public interest.