By Counselor Winston A. Tubman
Article 90 (C) of the Liberian Constitution of 1986 authorized the Legislature to prescribe a Code of Conduct for all public officials and employees; for, among other things: “stipulating the acts which constitute conflict of interest or are against public policy and punishment for violation thereof.” Pursuant to this constitutional provision, a Code of Conduct was enacted into law.
On March 3, 2017, in a landmark majority decision, 3 for and 2 against, the Supreme Court of Liberia pronounced the Code of Conduct legal, binding and compliant with the Liberian Constitution.
On March 6, 2017, the chairman of the National Elections Commission (NEC), in a press statement, said that NEC would strictly enforce the Code: “What the NEC will be doing is to comply strictly with the Supreme Court’s interpretation of the Code of Conduct…whatever the Supreme Court says will be followed to the letter.”
Since the Supreme Court came down with the decision on the Code of Conduct there has been much controversy concerning several named presidential aspirants who should be barred from running in the October presidential elections because section 5.2 (a) of the Code states that Ministers, Deputy Ministers, Directors General, Superintendents desiring to run must resign 2 years prior to the election, and section 5.2 (b) states that any other officials appointed by the president, holding a tenured position must resign 3 years prior to the election.
Section 5.9 of the Code provides that “Any public official, after due process, who is found guilty of violating any provision of this section should be immediately removed from the position or office held by him/her and thereafter no part of the funds appropriated by any law for such position or office should be used to pay compensation to such person.”
Contrary to what the chair of the NEC has said, enforcement of the Code of Conduct is not a responsibility of the NEC. In any case, whoever purports to enforce the Code can legally do so only in compliance with what is laid down in the Code; Chapter XV of which provides as follows: “Sanctions for infringement. Those prescribed by the standing orders of the Civil Service or any other laws governing the public service. Notwithstanding, depending on the gravity of the misconduct; one or more of the following penalties may apply: Dismissal, removal from office in the public interest, reprimand, fine or making good of the loss or damage of public property/assets, demotion, seizure and forfeiture to the state of any property acquired from abuse of office; interdiction/suspension from duty with half pay.” These enumerated sanctions make no mention of exclusion from participating in elections.
The NEC has no jurisdiction to implement the CoC. The Supreme Court decision on the CoC does not affect the rights of citizens to participate in the 2017 Election; such rights flow to Liberian citizens from the Constitution of Liberia and are not qualified by the Code of Conduct. Nowhere in its judgment does the Supreme Court exclude people from participating in elections. It does provide that if people are to be sanctioned, it can only happen after due process has been followed. Thus, if someone is to be excluded from the election which is not one of the sanctions under the Code, it must first be established through due process that the person participated in what he is accused of.
During the deliberations of the Truth and Reconciliation Commission (TRC) which examined the alleged roles of people in crimes committed during the Liberian civil conflict and specified punishments were meted out, the Supreme Court of Liberia prohibited such punishments from being carried out because those findings and punishments had not been arrived at through due process. The issue was never whether the acts alleged were ever done but whether the punished persons had benefited from due process, before being sentenced. By this same reasoning, it is not enough to allege that someone had the intention to run for an office but that allegation must be established, by due process. If due process was lacking no basis exists for inflicting punishment which, in any case, cannot go outside what is set out in the CoC.
If one of the aims of the CoC is to protect government resources, by the time the election comes around those resources will have already been used. To prohibit the person who will have used the resources from partaking in the election would be less a punishment of the official and more an act denying the state the benefits that will have accrued from the use of its resources. Many officials other than those named in the CoC will have benefited from the use of state resources. Barring all of them from the elections makes no sense and would only punish and deprive the state. In any case, excluding persons from elections is not one of the prescribed punishments for infringement of the CoC. Therefore, the CoC cannot be invoked to prevent anyone from participating in Liberia’s Election 2017.