The Temple of Justice was on Friday a scene of shock and disbelief, after three of the five justices of the Supreme Court favored the 2014 National Code of Conduct Act, with the remaining two going against it.
The three reached their decision following a tense legal argument and voting process, in which Associate 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, both of Nimba County, and Sie-A- Nyene G. Youh were in favor.
Bong County Superintendent Selena Polson-Mappy was the person who filed a petition to the Supreme Court against the passage of the Code of Conduct that was submitted by the Executive Branch of Government in 2009, arguing that it was unconstitutional.
Superintendent Mappy was expected to contest one of the representative seats in her county during the October elections.
However, the three justices said that the code of conduct Act was enacted on the wisdom of the Legislature in the supreme interest of the Liberian people to protect the resources of the country from abuse by public officials and to create a plain/level political field for all contesting candidates.
Their decision also said, “The act is not, in our opinion, repugnant to or in conflict with any provision of the Constitution to warrant its declaration as being unconstitutional as contended by the petitioner.
“The petition seeking to declare the Code of Conduct Act or any provision thereof unconstitutional same being numerations, both in fact and law, is thereby denied and dismissed.”
The court’s decision, many political observers say, could possibly create confusion against some Liberians who aspire to run for political office.
The standard bearer of the opposition Movement for Economic Empowerment (MOVEE), Dr. J. Millis Jones’ tenure at the Central Bank of Liberia expired in May 2015. Many are wondering if the decision can be retroactive to affect those who did not resign.
With the upholding of the Code of Conduct by the Supreme Court, it means that current government officials like Harrison Kearnwea, Managing Director of the Forestry Development Authority, who has been tipped as running mate to Cllr. Charles W. Brumskine of the opposition Liberty Party (LP); and Dr.
Henrique Tokpa, Minister of Internal Affairs, who has been tipped to run as vice standard bearer of the ruling Unity Party (UP), may be barred from participating in the October presidential and legislative elections.
Dr. Jallah A. Barbu, a former Chair of the Law Reform Commission who declared his candidacy for the presidency in 2016 cannot also contest this year’s election.
Meanwhile, observers argued that the court’s decision does not affect Dr. Jones’ ambition to contest the presidency during the October elections, because the Supreme Court’s decision cannot be retroactively enforced.
A legal expert also argued that laws are not retroactive, meaning that the law cannot affect people like Jones who was not in the employ of the CBL when the act was passed into law.
Retroactive law is a law that operates to make criminal or punishable or in any way expressly affects an act done prior to the passing of the law.
Some of the provisions on which Mappy based her argument were Section 5.1 and 5.2 of the Code of Conduct that 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 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 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.
In her complaint, Mappy’s legal team argued that the passage of the act made it unconstitutional for reasons that Section 5.2 of the document was discriminatory, arbitrary and capricious, and tantamount to amending the eligibility provision of the Liberian Constitution for public officials to qualify as candidates for public offices.
“It is not tenable in law, and that the enabling office of the Code of Conduct Act, the office of Ombudsman, established under Section 2.1 and 12.2 of the said act, authorized to receive and investigate all complaints in respect to adherence to the Code of Conduct Act, is yet to be made operational,” the complaint argued.
They further argued that the office of the Onbudsman, “being the forum of first instance by the Legislature shall forthwith be made operational and appeals there from should lie to the Supreme Court.”
The Ombudsman is a group of persons appointed or authorized by the President of the Republic of Liberia and confirmed by the Senate to enforce, oversee, monitor and evaluate adherence to the Code of Conduct.
Before Madam Mappy’s contention, another group the 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.
Brooks’ complaint was filed on August 5, 2014, but that contention was also rejected by the same Supreme Court with the same three in favor and two maintaining their ground.
On March 6, 2014, the House of Representatives concurred with the Liberian Senate on the passage of the 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; and according to her, it serves as an integrity check for employees of the three branches of government. The Bill spent over five years in the corridors of the National Legislature before it was passed.
After signing the bill into law, the president was heard saying to all officials of government and civil servants that “this would serve as a guide to unwarranted behaviors, especially corrupt attitudes.”
At that moment she also 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, such as bribery, sexual harassment and failure to declare assets.
In its annual report, the Governance Commission (GC) recommended to the Liberian government to declare the Code of Conduct’s exclusion inapplicable. It made mention of Part V Sections 5.1 and 5.2 that seek to exclude from candidacy high officials of the Executive Branch of government who did not resign from their positions within a given period of time.
The GC said: “In view of the doubts about the constitutionality of the provision, as it is now under challenge, and the disruptive effect its enforcement will have on the October elections, the provision should be considered inapplicable to the 2017 Presidential and Legislative Elections in the same manner and spirit the 10-year constitutional provision was considered inapplicable to the 2005 and 2011 elections.”