Democracy, it is said, is not only about numbers and votes but it is also about institutions and their independence”. In this regard, several and different kinds of bodies serving various functions are created with particular mandates. All this is done to help enhance the strengthening of democracy. For the past few weeks the nation has been gripped with fever over the threatened impeachment by the House of Representatives of Supreme Court Associate Kabineh Ja’neh for acts listed as gross abuse of power, corruption, proven misconduct, theft of property, etc.
But according to Arthur Johnson, lead lawyer for Justice Ja’neh, the Speaker of the House of Representatives, Bhofal Chambers, violated Justice Ja’neh’s rights to “due process” by commissioning an Ad hoc committee rather than the House’s Judicial Committee to determine whether Justice Ja’neh’s alleged acts were indeed impeachable. Cllr. Johnson in a Prime FM radio interview, aired Wednesday, August 29, 2018, maintained that the House Judicial Committee is a statutory body whose lead role in the impeachment process is sine qua non to the entire process itself, absent which there can be no impeachment.
Therefore, according to him, the action by the House of Representatives is illegal and by such reckoning Justice Ja’neh should not dignify such illegal action by appearing before the Senate to stand trial. Cllr. Johnson further suggested that the Impeachment proceedings initiated against Justice Ja’neh by the House of Representatives have created what he called a Constitutional crisis and in protest thereof, he has urged members of the Liberia National Bar Association(LNBA) to stay away from the Courts for a period of three (3) days in protest against the impeachment action.
This newspaper, in an attempt to analyze the issues and present a clear perspective on same for the public benefit, has referenced several sources, particularly the Constitution of the Republic of Liberia, the organic law of the land. Article 38 of the Constitution provides that each House shall adopt its own rules of procedure, enforce order and with two-thirds of the entire membership may expel a member for cause”. It further says “each House shall establish its own committees and sub committees, provided however, that the committees on revenue and appropriation of one member from each County.
All rules adopted by the Legislature shall conform to the requirements of due process of law laid down in this Constitution”. One of such established as a standing committee is the House Judicial Committee, patterned after that of the United States. It was first established in 1813 for the purpose of considering legislation concerning the judicial system. In the United States of America, this committee has approved articles of impeachment against Presidents of the United States in three instances, the first being that of Andrew Jackson in 1868, Richard Nixon in 1974 and Bill Clinton in 1998.
The Judicial Committee is also known to have established several Ad hoc bodies/committees known as “Task Forces”. One such Task Force, “Judicial Impeachment Task Force” was established in 2008 by the 110th and 111th Congresses. It was established to conduct an investigation into charges against District Judge Thomas Porteous. By the way all members of the Task Force were also members of the House Judicial Committee. According to reports, by the end of the 110th Congress the investigation had not been completed. It was however re-established after the 111th Congress convened in January 2009.
Further, the responsibilities of the Task Force were expanded to include the case of another Judge Samuel B. Kent, which led to hearings and his subsequent impeachment by the full House of Representatives. The Task Force finally voted to impeach Judge Porteous on January 21, 2010. In like manner, the Liberian House of Representatives setting up of an Ad hoc committee to probe allegations against Justice Ja’neh can be likened to that of the US legislative Task Force of the 110th and 111th Congresses whose hearings led to the impeachment of the Judge.
In similar fashion has the Ad hoc Committee through Plenary of the Liberian House of Representatives forwarded a Bill of Impeachment against Justice Ja’neh to the Senate. Further, Article 43 of the Constitution of Liberia specifically provides that the power to prepare a Bill of Impeachment is vested solely in the House of Representatives and the power to try all impeachments is vested solely in the Senate. It further says the Legislature shall prescribe the procedure for impeachment proceedings which shall be in conformity with the requirements of due process of law.
“Due Process”, in the opinion of this newspaper, is two-fold, Procedural and Substantive. Substantive Due Process focuses on government regulation that deprives a person’s fundamental right, guaranteed to that individual under the Liberian Constitution, whereas Procedural Due Process has to do with depriving an individual of his/her right to life, liberty or property interest without using fair and timely procedures. Procedural due process means that the government must provide the person with at least a timely notice, an opportunity to be subjected to an oral hearing, and the right to a decision in front of a neutral decision-maker.
Against this backdrop and from examination of the facts, there appears to be no instance where Justice Ja’neh’s rights to “due process” have been violated in a substantive way. To the best of available information, procedurally, Justice Ja’neh was provided timely notice about his possible impeachment. His right to an oral hearing has not been denied, to the best of available information, neither has he been denied representation by a legally competent individual, or denied the right to a decision before a neutral decision-maker who in this case shall be Chief Justice Francis Korkpor as the Constitution provides in Article 43.
From the look of things, the Senate may likely by two-thirds concurrence, vote to impeach Justice Ja’neh. The question is whether such would lead to a Constitutional crisis as opined by lawyer Arthur Johnson. His call to lawyers to boycott the courts in protest rings hollow because it posits the view that Supreme Court Justices are accountable to no one but themselves, which is as fallacious as the theory that the earth is indeed flat.
But of course we know better for this is no constitutional crisis and there is absolutely No Need For This Game of Brinkmanship!