By Cyrus L. Gray
Last Tuesday, the Government of Liberia submitted a bill for enactment to the Legislature entitled, “Act Prohibiting the Tenure of Public Officials in the Executive Branch of Government.” The intent of the Government is to allow the President of Liberia the unhindered authority to hire and fire any official in the Executive Branch of Government at his will and pleasure. Today, there are statures that grant tenure to certain officials of the Liberia Maritime Authority (LMA), General Auditing Commission (GAC), Liberia Anti-Corruption Commission (LACC), National Elections Commission (NEC), Central Bank of Liberia (CBL) and officials of a select number of public institutions. Tenure were granted to these position by Acts of the Legislature, mostly under the administration of former President Ellen Johnson Sirleaf.
If the purpose of the proposed Act is to enable the President to freely hire and fire public officials in the Executive Branch of Government, then the decision to craft and submit the Act was ill informed and ill advised; no disrespect intended to the President’s Legal Team. Why do I say so? Current tenured are based on the authority of stature. If the President’s proposed Act were to pass into Law, it will not enable him to remove those already serving under tenure. They will have to complete the current length of their tenures; the President may as well wait out the completion of the tenured terms before appointing replacements; hence the Act serves no purpose at this moment. Article 21 of the Constitution of Liberia prohibits the enforcement of any law “ex post facto.” According to Article 21, “No person shall be subject to any law or punishment which was not in effect at the time of commission of an offence, nor shall the Legislature enact any bill of attainder or ex post facto law.” An ex post facto law is a law that retroactively changes the legal consequences of actions that were committed, or relationships that existed, before the enactment of the law.
Any Legislation that grants tenure to a public official appointed by the President in the Executive Branch of Government is a Legislative overreach that explicitly abrogates the Executive Powers of the President of Liberia granted in Article 56 (a) of the Constitution of Liberia. To the extent of its abrogation of a Constitutional provision, it is illegal. Article 56 (a) 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.” The common argument in favor of granting of tenure by legislation is that the Constitution gives the Legislature the authority to create agencies of government. Article 89 states, “The following Autonomous Public Commission are hereby established. A. Civil Service Commission, B. Elections Commission and C. General Auditing Commission. The Legislature shall enact laws for the governance of these Commissions and create other agencies as may be necessary for the effective operation of Government.”
The powers granted to the Legislature in Article 89 (and 34-49) does not inhibit any authority of the President already established under the Constitution. Article 2 of the Constitution provides the framework for this assertion. It states, “This Constitution is the supreme and fundamental law of Liberia and its provisions shall have binding force and effect on all authorities and persons throughout the Republic. Any laws, treaties, statures, decrees, customs and regulations found to be inconsistent with it shall, to the extent of the inconsistency, be void and of no legal effect. The Supreme Court, pursuant to its power of judicial review, is empowered to declare any inconsistent laws unconstitutional.” Therefore, granting of tenure to public officials who are subject to appointment by the President in the Executive Branch of Government as a provision of any stature is inconsistent with Article 56 (a) and is therefore unconstitutional.
What should have been the course of action by the President to remedy this error? The opportunity offered itself in the case arising from President Weah’s appointment of Moses Owen Brown to replace Ambassador Isaac Jackson as Permanent Representative to the International Maritime Organization (IMO). In a case brought before the Supreme Court by Attorneys representing Ambassador Jackson, they argued that Jackson’s replacement was illegal and an abuse of power because he was entitled to tenure, which had not elapsed, under the 2010 Act creating the new Liberia Maritime Authority. The government’s counter argument was that the New Maritime Authority Act did not grant tenure to the position of Permanent Representative to the IMO but only to Commissioners and Deputy Commissioners of the Liberia Maritime Authority. Faulty argument because Liberia’s Permanent Representative to the IMO has always had the designation of Deputy Commissioner of Maritime Affairs. The Supreme Court reserved ruling on the matters but placed a stay on the removal of Ambassador Jackson in the main time.
Technically, the decision of the Supreme Court was a defeat to the government, induced by the fatuity of the argument of Government’s Lawyers. The Government would later replace a more impactful Permanent Representative to the United Nations in New York, Lewis Brown, without fanfare. Where is the logic? This case of Amb. Isaac Jackson removal provided an opportunity to challenge the constitutionality of tenure granted to public officials appointed by the President. The true argument was that tenure granted to Amb. Isaac Jackson as Permanent Representative to the IMO on the basis of the 2010 new Liberia Maritime Authority Law was unconstitutional and abrogation of the Executive Powers of the President granted in Article 56(a).
The irony is that on in March 2018, President Weah appointed former Representative Gabriel Nyenkan as head of the Secretariat of Liberia Extractive Industry Transparency Initiative (LEITI), replacing Konah Karmo who was appointed by the Multi-Stakeholders Steering Group (MSG) in 2014 in a competitive recruitment process. The Act which created LEITI in 2009 authorized the President to appoint members of the Multi Stakeholders Group (MSG), and granted the MSG the power to recruit the Head of Secretariat, Deputy and other staff members of the LEITI Secretariat. The President’s appointment of Nyekan, was a violation of the LEITI stature and unlike the Jackson Case falls outside of the powers of the President authorized in Article 56(a). Note that the President does not have the authority to appoint the LEITI Secretariat, (condition imperative in Article 56a), hence he does not have the authority to remove the head of the LEITI Secretariat. In spite of the mixed reaction and condemnation by Global Witness and Extractive Industry Transparency Initiative (EITI), the Government of Liberia has not corrected this error. As a consequence, Liberia has been delisted from the prestigious international integrity institution.
There is sufficient public favor for the continuation of tenure for the select number of public officials appointed by the President, be it those at the LACC, GAC, CBL, NEC, PPCC, etc. This sentiment is informed by a perception that the President, and for some, this President, by demanding the right to control the tenure of the designated public offices is exercising dictatorial tendencies. Let us put the Liberia Presidency in its proper legal perspective. The Constitution of Liberia creates for us an Imperial Presidency. The President is the Head of State, the Head of Government and the Commander in Chief of the Armed Forces. There is an assumption, when one appraises the powers granted the President of Liberia, that the framers of the Constitution expect the President to be wise. By the same logic the framers also assumed that the people clothed with the Constitutional power to elect their President have the ability to elect a President capable of managing the vast power and authority granted the office of the President under our Constitution.
There are limits to which the Legislature can manage the President in the execution of his authorities granted by the Constitution. The notion of tenure for a public official serving a position mandated to the President seem to suggest that the officials need to be protected from removal over a certain period. Who is the tenured official being protected against? The President? The President is the only elected official that has been granted the mandate by law to perform the duties of the Executive Branch of Government; he is responsible for the performance of the Executive Branch of the Government of Liberia. All appointed officials in the Executive Branch of Government are agents of the President; that is why the Constitution places their services at the pleasure of the President (Article 56a). The Legislature cannot prevent the President from executing the authorities granted under the Constitution. The Legislature is not the people. It is a proxy of the people. The wishes of the people are enclosed in the Constitution, the supreme and fundamental law of the Republic. That is why the abrogation of constitutional provisions are expressly stated to be illegal (Article 2) and that is why there is a requirement for the assembly of the people in the form of a referendum to change or amend (Article 91 – 93) any of the explicit wishes of the people enshrined in the Constitution.
Is there reason for concerned about governance? Yes! And rightfully so. When the will abandons that which is above and turns to what is lower, it becomes evil – not because that is evil to which it turns, but because the turning itself is wicked. Therefore it is not an inferior thing which has made the will evil but it is itself which has become so by wickedly and inordinately desiring an inferior thing (St Augustine).
In St Augustine’s attempt to define the source of evil, he illuminates a cardinal organizational challenge, the value of the quality of leaders. We have been taught that the most important element of an organization is the quality of its people. Under Liberian Law (1986 Constitution Article 54) the President is granted broad powers to appoint all the senior members of the Executive and Judicial branches of Government, yet the constitution does not ensure that the Office of the President be fill with a person with the requisite qualification that makes him/her capable of making the value judgment in appointments. There are only three eligibility requirements for the Liberian Presidency (Article 52) and they do not include any proficiency requirement whatsoever; hence, the only safeguard in the Liberian Constitution for vetting a Presidential appointee is the Consent of the Senate (Article 54).
The framers of the Liberian Constitution made the assumption that the people, the Electorate, have the ability to elect the right quality of people to serve as Senators and President that enables them to make the right decisions on the quality of the team to handle the affairs of the country. Therefore, the only guarantor of good governance is an unknown. History has shown, time and again that the absence of a visionary leader with a plan is always the demise of a nation. For years we in Liberia have grappled with the challenges facing our country and watch with frustration as many leaders appointed to manage public organizations fail and are replaced with new leaders who fail and are replaced again, and again; but this is the nature of the laws that the people have enshrined in the Constitution. At such time when these laws change, the people, all the people are required to uphold and defends them. .
There are some who wish to undo the power of the Presidency because they either distrust the ability of the President or resent his Presidency. The Presidency of George Manneh Weah is already a done deal; water under the bridge. Should Liberians examine and question his policies? Yes, we should! Can anyone undo the fact that he is the elected President of Liberia and by virtue of that fact has the authority and right to exercise all the powers that the Constitution places at his disposal? No! No one should. Ours is a democracy. When in the early 1800s the French Republic faced a doubtful leader, the French Jurists and Philosopher, Joseph de Maistre, cautioned the public in these words, “In a democracy, people deserve the government they get.” Paraphrased, the democratically elected government is a microcosm, a miniature of the people. There is only one President of Liberia, let’s allow him to succeed or fail on the merits or demerits of his policies and their implementation. Elections matters! Let every Liberian resist the temptation of attempting to micromanage a sitting President.
My advice to the President: Put the unconstitutionality of “Tenured Appointed Positions in the Executive Branch of Government” before the Supreme Court; the only body which according the Article 2 has the power to declare “any inconsistent laws unconstitutional.” We will judge the government at the appropriate time by its performance.
I hold this value to be true that “Adherence to the Law is the only safeguard of our democracy.”
Cyrus L Gray, Jr., is the Author of the Negro Nation (www.amazon.com), the International Shipping Guidelines; and Publisher of the New Liberian Magazine (renamed LIB BUZNEY). His new book, “FOG (A Story of War, Love and Country)” will be published in December 2018 with first rollout in Monrovia. As a day job, he is a Logistics Business Development Consultant with Core competence in Air and Seaport Development. His recent work was Co-Consultant for the crafting of the Economic Analysis of the Mesurado Fishing Pier (Oct. 2018) at the Freeport of Monrovia, for Liberia’s National Aquaculture and Fisheries Authority (NaFAA).