Following a tense legal argument and voting process among five justices of the Supreme Court, three favored the 2014 National Code of Conduct, with the remaining two going against it.
Justices Philip A.Z. Banks and Jamesetta H. Wolokollie were those who refused their colleagues’ decision to accept the Code of Conduct.
Chief Justice Francis S. Korkpor together with Associate Justices Kabineh M. Ja’neh and Sie-A- Nyene G. Youh were in favor.
Disassociating themselves from their colleagues’ decision, the two justices contended that “The decision tells us that the Liberian people were either without the authority to adopt the provisions of Article 2, 26, 90 and that in adopting those provisions they lack the sense of good judgment.”
Hence, they explained that, “The Legislature and the Executive, creatures of the Constitution, can challenge the wisdom of the constitutional provisions and accordingly choose to ignore or subordinate them.
“We cannot subscribe to such result as it defines not only the very wordings of the Article 26 provisions of the Constitution, which vests the rights of challenge, but also, because the opinion ignores the history and intent of the provision.”
They went on, “We believe so very strongly that the decision made by our majority colleagues is wrong and violates the Constitution and the very code of legal and judicial principles, what we believe to be the infringement and trampling of some of the most sacred and fundamental rights granted by the Constitution.
“It subordinates the Constitution to the statute laws of the nation, and is not consistent with our core valued beliefs and principles, and injuries the very basis of the principles and ideals set out in the Constitution, and affect in the ultimate, the core of our conscience, fundamental values, and belief in the supremacy of the Constitution.”
Section 5.1 of the Code of Conduct provides that “All officials appointed by the President of the Republic of Liberia shall not, (a) Engage in political activities, canvass or contest for elected offices (b) Use government facilities, equipment or resources in support of parties or political activities.
It also says such persons cannot (c) Serve on a campaign team of any political party, or the campaigns of any independent candidate.
5.2 says “Wherein any person in the category stated in section 5.1 desires to canvass or contests for an elective public position, the following shall apply.
“(a ) Any Minister, Deputy Minister, Director-General, Managing Director and Superintendent appointed by the President pursuant to article 56 (a ) of the Constitution and a Managing Director appointed by a Board of Director, who desires to contest for public elective office shall resign said post at least two (2) years prior to the date of such public election.
“(b) Any other official appointed by the President who holds a tenured position and desires to contest for public elective office shall resign said post three (3) years prior to the date of such public election.
“(c) However, in the case of impeachment, death, resignation or disability of an elected official, any official listed above desirous of canvassing or contesting to fill such position must resign said post within thirty days, following the declaration of the National Election Commission (NEC) of the vacancy.
The contention over the Code of Conduct started on August 5, 2014, when a group known as Citizen Solidarity Council (CSC) through its chairman, James Brooks, filed at the Civil Law Court a “Declaratory Judgment” seeking the declaration from the court of the unconstitutionality of sections 5.1 and 5.2 of the Code of Conduct.
They argued that the session did not only contravene the Constitution, but also infringed on certain fundamental rights expressly granted and guaranteed by the Constitution to citizens, including as in the instance case, the right to seek elective political office.
They asked the court to declare the rights of Liberian citizens currently occupying official positions in government to contest elective positions in the 2014 Mid Term Special Senatorial Elections and the 2017 Presidential and Legislative Elections without any hindrance or precondition.
They also argued that Article 21 of the Liberian Constitution frowns upon the making of what they considered as “ex-facto laws,” by the Republic, meaning that the Republic shall not make laws to be enforced retroactively that is, laws enacted are not to be applied for future happenings and not after the facts, as was done in the case.
They also claimed that the Legislature, by the inclusion of sections 5.1 and 5.2 in the Code of Conduct Act of 2014, and the Executive, acting by President Ellen Johnson Sirleaf by her approval of the said act, deviated from the command of Article 90 (a) and (c) of the Constitution, contravened provision of the Constitution, transgressed and exceeded the circumscribed authority granted them by that sacred document, infringed fundamental rights guaranteed by the constitution.
In counter argument, government lawyers asked the court to dismiss the matter on grounds that James Brooks, who considered himself as chairman of the group, lacked proven capacity and standing to institute the lawsuit.
They argued that Brooks failed to provide any proof that he is indeed the chairman of the group, neither is there a showing that assumes he is the chairman, that he is authorized to institute the lawsuit.
They contend that Brooks failed to mention his members who are presidential appointees holding tenured or non-tenured positions to whom section 5.1 (a) and (b) and 5.2 (a) and (b) of the Code of Conduct are directed and who would be allegedly affected thereby; they have presented no proof that the organization is adversely affected or aggrieved by the Code of Conduct for purpose of giving it standing to obtain a judicial decision.
They argued that the institution lacked the legal capacity to bring the action since it had failed to demonstrate that it was injured or likely to be injured and that it had failed to name any of the members of its organization who were injured or likely to be injured by the Act or that they were in any of the categories of the discriminatory provision of the Act.
The Civil Law Court ruled that the group did have standing to bring the action.
On the second issue, which is whether the challenged section of the Act was unconstitutional, the court decided that the question being one of a constitutional nature, it should be referred to the Supreme Court for resolution.
It was based on the decision that government took an exception to it before asking the Supreme Court to review the lower court’s decision, and to determine whether the challenged section of the Code of Conduct Act is unconstitutional.
The two justices in their decision said, “The two issues that we believe our majority colleagues have chosen to, in first instance determine that the framers of the Constitution and the Liberian people who adopted the Constitution did not know what they were doing and that they lacked the competence to do what they did,” adding, “Hence, the statute on standing on legal capacity should supersedes the Constitution’s grant of standing where a challenge is made to the constitutionality of a stature and, secondly, that contrary to the government to decide that the Supreme
Court was not under an obligation and could therefore, renege on the sacred responsibility entrusted to the court by the constitution.
They further argued that several provisions, particularly the challenged provision of section 5.1 and 5.2 do not apply to all public officials, but only to some public officials, instead.
So with the upholding of the Code of Conduct by the Supreme Court, it means that Liberian citizens seeking public office and did not resign their post three years before the elections are barred from that venture.
It may be recalled that former Central Bank of Liberia (CBL) Executive Governor Dr. J. Mills Jones, while in office won the hearts of Liberians in the leeward counties when he used his office to extend financial benefits to them, which was seen as his attempt to win their hearts in the event he decided to contest for an elective position.
The Code of Conduct Act was then seen as an effective medium to silence his quest for an elective since he was still in government and had not resigned his position three years before pending elections of 2017, as required by the Code of Conduct Act.
On March 6, 2014, the House of Representatives finally concurred with the Liberian Senate on the passage of the delayed Code of Conduct Bill. The Senate had earlier passed the bill, which also demands that presidential appointees resign before contesting any elected post; but the
House made an increment of three years.
The Code of Conduct was signed into law on Monday, May 12, 2014 by President Ellen Johnson Sirleaf to serve as integrity check for employees of the three branches of government. The Bill spent over five years in the corridors of the National Legislature.
President Sirleaf, upon signing the bill into law, called for total adherence by all officials of government and civil servants as this would serve as a guide to unwarranted behaviors, especially corrupt attitudes.
She lauded members of the national legislature for the passage of the bill, which she said will help curtail some of the malpractices that go on in public offices, naming malpractices as bribery, sexual harassment and failure to declare assets.
The President said the law is the first of its kind in Liberia, furthering that it will make Liberia a better country.