Liberia: Tenured Positions Wahala

When the former ruling Coalition for Democratic Change (CDC) government, upon ascending to power in 2018, proposed a bill to remove tenured positions within the Executive Branch of the Liberian Government, except those mandated by the Constitution, the current ruling Unity Party was one of the loudest that opposed the move. 

This move was met with strong opposition from the public and the opposition bloc, who criticized it as an extension of dictatorial tendencies. The bill, which was viewed as giving the President more control over appointed officials and the Executive Branch, was heavily criticized by the public, especially by opposition political leaders.

Despite support from the Lower House, the bill did not receive approval from the Senate. Some lawmakers and analysts raised concerns about the potential impact of removing tenured positions on key institutions and the legality of subsequent. With such a move, President George Weah was branded by some sections of the public and opposition leaders as a man wearing a dictatorial garment.

Now in the driver’s seat, the ruling Unity Party is embarking upon scrapping tenured officials, arguing that it violates Article 56 (a) of the Liberian constitution.

President Joseph Nyuma Boakai’s Legal Advisor, Cllr. Bushuben Keita, revealed over the weekend that the cabinet has authorized the President to scrap all tenured officials except those protected by the constitution—urging him to appoint his trusted lieutenants in those positions.

Keita said that the decision was reached by the cabinet at its first cabinet meeting held on Friday, February 23.

“The cabinet has authorized the president, and it has been concluded as government policy that all of those tenure positions that the president will exercise his authority to appoint people in any position in the executive whether the person has tenure or not except those positions that are protected by the Constitution of Liberia,” he said.

“If the tenure was created by statute, it is a position of the government that violates article 56a,” Keita said.

Keita said the cabinet has decided that those tenure positions violate Article 56a, which states: “All cabinet ministers, deputy and assistant cabinet ministers, ambassadors, ministers and consuls, superintendents of counties and other government officials, both military and civilian, appointed by the President pursuant to this Constitution shall hold their offices at the pleasure of the President.”

He referenced two precedence cases that the Supreme Court ruled in, Martin Sallie Kollie versus Executive Branch of Government, and the LACC case filed by Edward Kla Martin on the constitutionality of articles 16.1 and 16.2 versus the new LACC Act.

Citing the Supreme Court’s decision in the Edward Kla Martin, former Liberia Anti-Corruption Commission Chairperson’s case, Keita said the court ruled that tenured positions are “contracts” and as such officials holding such positions “should be paid for their unexpired terms on a case by case basis.”

“For example, if you went there in 2022 you have four years in 2024, and you still have another two years to go, you are terminated today, and the government owes you your two years' pay so we will treat it as if you are serving out your term.”

“That those contracts must be respected in keeping with Article 25 of the Constitution. Therefore, for all of those tenured positions, they are considered contracts for a definite period and in all of such instances where there is employer and employee relationship established and there is an unexpired portion of the contracts the supreme court has held — and we agreed — that those holding tenured positions should be compensated for the unexpired term.”

The Supreme Court, he said, indicated that the tenures are contracts and those contracts must be respected in keeping with Article 25 of the Constitution.

The president’s legal adviser’s comment comes after President Boakai made several appointments of officials to tenured positions where the tenures of the current officers in charge have not ended.

Entities affected include the Liberian Telecommunication Authority (LTA), the Governance Commission (GC), the National Public Health Institute (NPHIL), the National Lottery, and the National Identification Registry (NIR). 

Legal experts pointed out that the Constitution upholds the sanctity of contracts and limits the Legislature from enacting laws that contradict this principle. Critics highlighted the financial implications and administrative challenges that could arise from the President's decision.

The debate over the removal of tenured positions reflects broader concerns about governance, executive power, and economic stability in Liberia. As the country faces ongoing economic challenges, the effective management of government resources and personnel remains a pressing issue for all stakeholders.

No Severance for CoC Violators

Keita said tenured officials who were actively and visibly involved in political party activities during the 2023 elections in contravention of the Code of Conduct will be dismissed by the government without compensation.

The Code of Conduct (CoC) prohibits officials actively serving tenure positions from engaging in political activities, using government facilities or resources to support a partisan or political party or even serving on the campaign team of any political party.

“You cannot be a tenured official and you actively take part in politics, serve on a campaign, post all your campaign photos, and do all else and still expect your tenure to be respected or expect to be paid if your tenure is taken away,” Keita said.  

He challenged those who would feel that their tenure positions are wrongly taken from them to seek legal redress. 

“The laws are there. If you feel that you did not violate the code of conduct and need to be compensated you will take advantage of the law,” Keita said. 

Keita’s reliance is on Article 56 of the constitution, which states that all cabinet members are appointed by the president and confirmed by the senate at the will and pleasure of the appointer. 

“But if we say to you that you violated the code of conduct trust us we have evidence, videographic, and photographic evidence to prove that you did participate actively in politics wearing campaign shirts, while serving as a tenured officer and actively took part in canvassing or served on a campaign team those people will be replaced they will not be compensated.”

However, Senator Augustine S. Chea, Chairman of the Senate Judiciary Committee, disagreed with the president’s legal advisor, claiming that the Supreme Court’s opinion was misread or didn’t fully understand contract law. 

“The Supreme Court ruled in that case that Cllr. Martin was paid for the unexpired period of his tenure because his contract rights were violated, and the Government must respect the sanctity of contracts, as enshrined in Article 25 of the Constitution,” he wrote on His Facebook page.

“If the tenure law was unconstitutional, as they said, or if the Supreme Court invalidated the law, the Supreme Court would not rule that Martin benefits from that ‘illegal law’. If a contract is void (not voidable), it is void ab initio, meaning, it is invalid from its very inception or from the day it was made. Conversely, if the Supreme Court declares a statute or law unconstitutional, it is not law from the day it was enacted; and, therefore, no rights will accrue under that statute or law.”

According to him, tenured positions are intended to preserve the integrity, professionalism, autonomy, and independence of certain public institutions, so that the heads of those institutions will do their work uncompromised and without fear of being removed by the President at will.

 “And this law promotes good governance. Isn't it? So, why should anybody have a problem with that? Is it because some people want the jobs so badly and don't want to wait for the position holders' tenure to expire, or is it vengeance? Wow! But this is the kind of evil the law was enacted to prevent. 

“The appointments to tenured positions where the position holders still have tenure is illegal as it violates the tenure law. The President was ill-advised by his Legal Advisor, so he must now act to rescind or revoke his appointments.”

Why Now, UP?

Some critics of the move argue that tenured jobs were passed into law and they must be repealed by the legislature before they are scrapped, a trajectory the Boakai administration doesn’t deem expedient, given that the administration wants to take immediate effect.

The Unity Party, during its first two terms (2006 to 2017) created most of the tenured positions, especially at the end of the second term. From the onset and with the advice of its international partners, the government thought it wise to create tenured positions for integrity institutions like the GAC, and LACC, as a way of giving them that protection to work void of external interferences, especially political manipulation from the presidency as those entities went about fighting graft in public service. However, the process later became manipulated as the government began giving tenures to entities that were not integrity institutions — a move that some said was meant to secure jobs for cronies.

However, when the CDC came to power under President George Manneh Weah, it challenged the tenured posts and wanted all such positions removed. The UP, then an opposition party, argued that the tenured requirement of those jobs was meant to protect the integrity of the jobs and institutions so they were not subject to the caprice of an imperial presidency.

Weah was accused of trying to become a dictator and all attempts to remove the tenure status on those positions failed as the legislature also refused to repeal the acts that created those entities.

But less than a month after its return to power, the UP is not seeking to repeal the act but began nominating candidates for tenured jobs. Amidst the public outrage, the Executive Mansion through its Facebook page claimed the President has set up a committee to advise him on the tenured positions.

“Why is the UP argument over tenured positions changing all of a sudden? You created this. Why are you not accepting it?” Cheechiay Jablasone, a veteran Liberian journalist based in the United States asked. “You UP folks should stop playing the Liberian people stupid. What is good for the goose is also good for the gander.”

“There is no reason why you should want to repeal a law you created almost eight years ago and [fought] to keep only six years ago. When did you all know that this was wrong?” Jablasone posted on his Facebook page.

Should the law on tenured positions be repealed, it should read that all tenured jobs not stated in the constitution are repealed and tenures removed at the end of the tenures of the current officers of the entities affected.

“The Liberian taxpayers are way too poor to pay hefty severances to one set of officials and remove them only to replace them with another set of officials with equally high salaries, allowances, and benefits. That’s too much waste. Every well-meaning Liberian expects this government to be frugal,” Jablasone said.