President Weah Should Give His Proposed Tenure Bill A Rethink

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This newspaper has received with concern, news reports of a bill submitted to the Legislature by President Weah, seeking to amend provisions of the law on tenured positions in government. Proponents of this move have long since maintained that former President Sirleaf created too many tenured positions all in an effort to preserve the privileges and perks of her appointees even after she had left office.

They have often argued that such an arrangement tended to undermine Presidential authority because, in their view, all Presidential appointees serve at the will and pleasure of the President. Therefore it goes without saying that, should the President no longer desire the service of a particular individual, he should have the freedom to terminate that individual’s services but further, according to their logic, under current arrangements, the President’s ability to exercise this Constitutional prerogative is severely impaired.

But there are countervailing arguments suggestive of the view that the current push to end tenured positions is but a subtle attempt to give President Weah sweeping autocratic powers which, in their view, portends ill for the consolidation of democracy in Liberia. In their argument they point to the singular fact that President Weah has kept his asset declaration a top secret, which they believe is in violation of the law, arguing that President Weah is commingling state resources with his personal resources.

The argument about tenure, is however valid. On one side of the argument, there are those employees who work hard and who contribute significantly to the institution. For the most part they are employees who, owing to their knowledge of the institution can maneuver and get things done. They are usually well adapted and can effectively navigate through bureaucratic bottle necks to get things done for the institution.

Thus it makes sense investing in such employees to function in higher or cross functional roles rather than seeking out new hires that may not have the experience and may  require a long period to adapt to organizational behavior and culture.

On the other hand, there are those who just believe in passing the years doing little other than collecting monthly paychecks. They take the job for granted and use tenure as a means of survival in their respective institutions. But institutions need to have structured mechanisms to periodically assess the operational performance and relevance of the roles assigned to those tenured employees. In the case of Liberia with weak institutions, such capabilities are extremely limited, when pitted against established patronage networks.

In such situations, the President becomes not only the dispenser of perks and privileges, his personal indiscretions become the bar by which success or failure is measured or determined. And since, appointment to tenured positions in public sector management are for the most part driven not by concerns for excellence and high output but by Presidential predilections.

At the heart of the argument is the primary concern about Presidential predilections which too often become overbearing and dictatorial. And despite 12 years of what should have been a process of reform of the “imperial presidency”, the culture of the Presidency became even more engrained. The carrot and stick approach to the political opposition was one heavily favored by preceding Presidents. Tubman used it to great effect such that he became to be perceived as a “good man”.  President Tolbert used it much less effectively, constrained as he was by the lack of resources to dispense in free style fashion as his predecessor did.

As for Presidents Doe and Taylor, they leaned more heavily on the stick rather than the carrot to deal with political opposition. In both cases their policies and practices virtually led the nation down the path to a prolonged and brutal civil war. But President Sirleaf, unlike her immediate predecessors, relied more heavily on the carrot rather than the stick. Recalcitrant lawmakers were for the most part simply won over by large cash inducements to pass whatever bills she sought to pass into law, including concession agreements.

It is the opinion of this newspaper that rather than calling for the repeal of tenured positions, President Weah should instead direct his focus to building and strengthening national institutional capacity. Faced with a situation of acute brain drain and its consequences, it would do the George Weah administration well to do all it can to mitigate the adverse effects of the brain drain. And one way of doing so is to consider tenure as way of attracting the best and forestalling the negative effects of brain drain.

But it should, by no means be surprising that the public is expressing consternation about President Weah’s latest move. Memories of the legacy of dictatorial rule remain etched in the national consciousness. In the face of growing public concerns about the declining state of the national economy, the search for scapegoats has not escaped attention. The media for example is being blamed for reporting the story of the missing billions, which some officials insist is not true.

In another vein, former President Sirleaf has since become the whipping girl and is being blamed by CDC party officials for responsibility for just everything wrong with this government including the missing billions. President Sirleaf certainly had her faults, but to attribute every misstep of this government to her is most unfair and it clearly suggests that the search for scapegoats will likely intensify, especially as the economic situation worsens.

Authors

4 COMMENTS

  1. Chapter 1, Article of the 1986 Constitution says “All power is inherent in the people… the people shall have the right at such period, and in such manner … to cause their public servants to leave office and to fill vacancies by regular elections and appointments”. Which would suggest that all appointees serve at the pleasure of the president; except, as indicated elsewhere, the Chief Justice and Associates Justices of the Supreme Court and the judges of subordinate courts of record who shall hold office during good behavior and retired at “seventy”.

    In other words, constitutionally only those judicial officials actually have tenures. Indeed, chapter X, Article 89 established Autonomous Public Commissions and empowers the Legislature to enact laws for the governance of these commissions and creation of other agencies as may be necessary; however, elections are about changing guards. And it violates essence of majority votes were ruling party leaders to extend – through enacted tenures – employment of their appointees beyond term of office of a government. How can that be considered fair in an emerging multiparty democracy?

    It therefore didn’t surprise most Sierra Leoneans when newly elected President Maada Bio started dismantling tenure positions by executive orders. Yet after reading this alarmist editorial, one would think that President Weah is abolishing tenure postions by fiat. When Counselor Brumskine took his complaint to the Supreme Court about electoral fraud, the Liberian press was chanting “rule of law”, but they are angry that Weah following the nation’s Organic Law by requesting the people’s representatives to revisit tenure positions. Perhaps, obstructionism has become an agreed tactic of our best and brightest.

    • Weah has already violated the Constitution regarding several tenured positions (those created by law under Article 89). This is just him attempting to sanction those violations and give himself more power.

  2. Critics of Weah who conclusively assert that the cancellation of tenured positions by Weah is wrong, should rethink their positions. In reality, those very critics who argue against Weah’s cancellation of tenured positions are the ones who are wrong. By cancelling tenured positions, Weah shows virility. Also, Weah shows that he’s not a wimp nor is he a potentate or a gluttonous individual. Weah wants to set the record straight. It is a known fact that when a change is being made, some people become very, very uncomfortable. A very part of that discomfort is being shown.

    Every elected leader, whether it is Weah or Trump, has a constitutional right to make or recommend changes. Sylvester G. Moses correctly cites a portion of the 1986 Liberian constitution which implies that civil servant appointees serve at the pleasure of the president. If that portion of the Liberian constitution had not say that, there would have been no reason for this issue to be argued. So, the question is this…where did the idea of tenured positions come from? A good follow-up question is this…. why was such a vacuous concept initiated in the first place? Well, EJS’s predecessors did not sign tenured positions into law! So obviously, EJS started it. The real truth of the matter is that It was shamefully wrong to legalize tenured positions. The remnants of such a practice has returned in an ugly way to bifurcate us. Example, some people are saying, ” oh, he or she is a Weah supporter, or she/he is a political enemy of Weah. Had such a witless law not been legalized, we would not be in the position of accusing one another.

    Bottom line: the very people who were tenured by EJS’s edict are the greediest and sleaziest! Those tenured people manipulated an old lady for their own selfish-interests. (I do not exonerate EJS for her role. I strongly believe that she was misused by many people in so many ways).

    Conclusion: Weah is right to recommend changes as it relates to the so-called “tenured laws”. To put it bluntly, the tenured laws were unsophisticated. If changes are not made, Weah’s hands will continue to be tied. Weah has the constitutional right to re-appoint Liberians whom he feels comfortable with.

  3. While I do support the central theme of this article; that the President be limited in his authority to fire public officials of the executive branch, I had hoped that the Paper and others publications would center more on the legal theory, jurisprudence of Liberia or if depending on that of the U.S and elaborate in detail why the opposition to the “unitary presidential authority” in firing all executive branch officials are not constitutional. I had provided in a prior posting on Facebook a more detailed legal and support for what the Paper is suggesting here and won’t restate it here. But I’ll address comments I’ve read that completely miss the point for tenured positions that go beyond whether a prior administration utilized it or not.

    The Constitution does give the President the power to appoint members of the Executive Branch. The President is vested with the authority of the Executive Branch that’s why he gets to appoint the members of the branch, with the most senior level officials of those agencies requiring the “advice and consent” of the Senate. This is the first hint of the limitation of Presidential authority with respect to the treatment of those appointed by the President. Liberia has limited jurisprudence on the issue of the authority of the President in the firing of these officials, so lets look at the U.S. I spent two terms focusing on constitutional law and will do my best to be as simple in my explanation. The U.S Constitution does not speak to the President’s authority or power to fire members of the executive branch. While many commenters in support of the president are relying on mere assumption based on the fact that the Constitution grants the president the authority to appoint, the law does not work that way. There has to be a definitive stipulation in the Constitution on the Legislative intent or a Court’s holdings in the nation’s jurisprudence to support such. In fact, the U.S Courts has already addressed this issue in a case known as Humphrey’s Executor v. United States. In this case Franklin D. Roosevelt (“FDR”) tried to fire a commissioner of the Federal Trade Commission. The commissioner rejected his dismissal and objected to FDR’s argument that the nature of his office and the power vested in him over the executive branch required that he be able to fire all officials within the executive branch. This is the basis or underlying doctrine under the theory we call the “unitary executive theory.” Well, as expected, the case went to the U.S Supreme Court and the Court held that Congress was within its rights to create administrative agencies that are insulated from Presidential control. This ruling by the Supreme Court reversed what has existed in the U.S from the first Congress, until this decision, where the first Congress had believed that the power to fire was also inherent in the office of the President.

    As a result of the decision in the case, Humphrey’s Executor Vs. United States set the state today for the various federal agencies which are dubbed as alphabet soup of federal regulatory agencies, namely: the FTC, SEC, FRB, NLRB, FCC and others. The President can appoint the heads of these Agencies but can’t fire them.

    These Agencies serve purposes for the national interest that goes beyond the policies initiatives of individual administrations, such that a change in administration should not be a basis to change the leadership and interrupt the continuity the Agencies’ initiatives, where the Legislature has a vested interest also, as representatives of the People. So, readers should note, the vested authority of the Executive Branch in the President does not mean he has ownership of the Executive Branch. Congress or the Legislature has a vested interest in what happens in the Executive Branch. After all, it is most of the laws written by the Legislature that the Executive Branch is executing.

    Serving at the “Will or Pleasure of the President” simply means they don’t have a contract with respect to the position the President appointed them to and they implement or execute policies that are exclusively the President’s initiatives. As such, not even the Legislature would be able to question any such official who make decisions that are contrary to the national interest of the Country and eliminate the Legislature’s role in addressing concerns of national interests intended to exceed the terms of any one administration. One should not ascribe meaning to constitutional terms or language without first understanding the legislative intent for such passage of law and/or court’s holdings in any existing judicial reviews, if any by studying the case laws of the country.

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