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‘Untainted and Uncompromised’: Former Liberia Attorney General on Police, Justice & Investors’ Use of Private Security Forces

‘Untainted and Uncompromised’: Former Liberia Attorney General on Police, Justice & Investors’ Use of Private Security Forces

Washington – Cllr. Christiana Tah, the former Attorney General of the Republic of Liberia has declared that any government that allows its back to be placed over the barrel is in no position to enforce protections for the rights of citizens.

“Any government that allows its back to be placed over the barrel is in no position to enforce protections for the rights of citizens under the agreement, or even those rights guaranteed under its national laws.”

Speaking in an interview published by the internationally known law firm, Allen & Overy, in its law journal on human rights and foreign investments, Cllr. Tah, who resigned from the Ellen Johnson-Sirleaf led government in October 2014 also took aim at the inability or unwillingness of the State to enforce its contractual rights to ensure that benefits accrue to third party beneficiaries and the tendency of politicians (irrespective of the branch of government) to get involved in the implementation of the agreement can undermine not only the good intentions of negotiators, but also the well balanced contractual provisions.

Said the former minister: “Once an agreement is compromised by politicians promoting proprietary interests, then there is the tendency for concessionaires to take advantage of the Government’s vulnerability and to request an early review of contractual terms, particularly fiscal terms.”

In addition to addressing human rights risks in investment contracts, Cllr. Tah averred that a key role of government is to ensure compliance with the terms of the contracts while maintaining appropriate neutrality.

Minister Tah stepped down in 2014 declaring that she could not be the Minister of Justice and not supervise the operations of the security agencies under her department. Her resignation letter cited her lack of independence to investigate allegations of fraud against the National Security Agency.

She also said it had become “unbearable” to continue as minister amid “determination to systemically undermine and gut the portfolio of relevance and effectiveness.”

Two years later, Cllr. Tah remains concern about the independence of agencies within the justice system. “The national Police and the Ministry of Justice must remain untainted and uncompromised when overseeing investors’ use of private security forces.”

Cllr. Tah added: “Given the challenges that exist in Liberia’s post-conflict environment and the limited resources of the national Police, the former minister said concession agreements allow investors to use private security forces to protect their investments and workforces.”

In contrast to the provisions requiring investors to provide social services on behalf of the Government, she said investors’ private security forces are not empowered to carry out full Police functions.

“Instead, an investor’s security force is limited in that it may initiate a process involving arrest, interrogation, detention and other forms of law enforcement work, but must defer to the State authorities within 24 hours and when requested by the national Police.

Because the likelihood of human rights abuse is great in this sector, the Government retains as much control as it can over the operational aspect of private security functions.”

These provisions, the former minister added, attempt to strike a balance between investors’ legitimate security concerns and the need for the State to protect the rights of those detained.”

Cllr. Tah also alarmed that one of the lessons learned over the past ten years is that human rights risks should carry the same significance as financial risks during negotiations as they intersect, and human rights risks have the tendency to produce similar negative impacts to financial risks if not managed properly.

In other words, she said when negotiating a concession agreement financial consideration should not be seen as more important than human rights.

“However, the conventional approach to peace building has been to quickly rebuild the infrastructure and the economy without prioritizing the damage to human capital.”

The former minister said pressure to collect funds, sometimes in the form of signature bonuses, to meet urgent government obligations, such as the payment of salaries for teachers, nurses or Police officers to avert strikes, protests and other forms of civil disruption, meant that considerations of human rights risks are often deferred.

“One of the fundamental flaws is that consultative meetings held with affected communities prior to the commencement of negotiations are rather perfunctory, and often lead to more questions than answers. Prior to negotiations, the Government should properly ascertain the assets available for the prospective concessionaire and the impact on local landowners.

Affected communities should then be provided with accurate information, through public education, on what government intends to do and how the communities will be affected negatively and/ or positively by the concession agreement.”

The former Attorney General suggested that affected communities be given time to give feedback and to provide informed consent to a project; alternatively, the Government should be proactive in soliciting feedback where a response is delayed.

“Before sitting at the table with the concessionaire to commit resources (especially land), both the Government and the affected communities should be satisfied that the outcomes of the project will be more beneficial than not for the communities and the country.”

INTERVIEW:

Since the end of the civil crisis, Liberia has seen a number of major investments commence in large scale agriculture, forestry and mining. How have these projects impacted on the human rights of Liberians – both positively and negatively?

Promoting Rule of Law in Post-Conflict Liberia - An Interview With Christiana Tah

As published in the Allen & Overy law journal on human rights and foreign investments

Counselor Christiana Tah is the former Attorney General/Minister of Justice (2009-2014) of the Republic of Liberia and previously held roles in the Ministries of Health, Justice and Finance during the late 1970s and mid-1980s.

Amongst her many functions as Attorney General, Counselor Tah regularly served as a member of the negotiating team for concession agreements between the Government of Liberia and foreign investors.

She holds a graduate degree in law from Yale University, and a Master of Arts degree in Sociology and Criminal Justice from Kent State University, and served as a Professor of Sociology and Criminal Justice for more than 15 years in the United States while simultaneously practicing law in the State of Maryland.

She has now returned to private practice. She is currently engaged in international consultancy work.

We speak to Counsellor Tah about her experience of human rights challenges facing Liberia, and the role of the government and the private sector in negotiating concession agreements which will benefit affected communities.

What were the biggest human rights challenges facing Liberia when you came to office?

In 2003, Liberia emerged from a very brutal 14-year old civil conflict. During this prolonged conflict, the rules of survival during the war became the prevailing rules for conducting business, social interaction, and the dispensation of justice.

The roots of war were planted so deep that the rule of law in a civil environment seemed alien to citizens under the age of 30. Families were constantly on the move to safety, leaving no scope to establish permanent communities or develop the social controls, loyalty and commitment that provide a sense of togetherness and a feeling that one has a stake in society.

Very often, the perception is that once the gunshots stop, the war is over. Nothing could be farther from the truth.

The vestiges of war, such as the lingering psychological damage from untold atrocities that have been witnessed or experienced, as well as the dismantled social institutions and the inevitable brain drain, often pose greater threats to human development, recovery and security than the destruction of physical infrastructure.

After the war, many citizens who had been dispossessed of real property because they had voluntarily sought refuge in another location or had been forcibly displaced by advancing rebels were still grappling with the fact that the public sector reform intended to strengthen the justice system, including an improved grievance mechanism, still eluded them in the years after the conflict.

Not only did land disputes pose a serious obstacle to sustained peace in Liberia when I came to office, but also the rise in violent personal crimes such as mob violence, murder, armed robbery and rape; some of which were clearly indicative of the lack of confidence in the formal justice system and the frustration that underlie the slow transition from poverty to an acceptable position on the socioeconomic strata.

During the war, the failure of the formal justice system meant people turned to traditional methods of justice to seek redress. For example, “trial by ordeal”, which involves the accused undergoing a test, such as drinking a poisonous concoction, to determine guilt or innocence, became more widespread during the war despite being outlawed by the Liberian Supreme Court in 1935.1

The continued lack of confidence in the formal system to dispense justice meant that a surprisingly large number of people, including educated people, have continued to turn to informal and illegal processes, such as trial by ordeal and mob justice, to seek redress.

The end of the civil conflict and democratic election of a new government marked the turning of a new page for Liberia and expectations were high that desperately needed reforms would immediately follow the inauguration of the new government.

During the reform process, the grievances of citizens were being handled by a weak legal system that had been left substantially dysfunctional by civil war.

As a colleague described the task facing government: it was like trying to drive your car while the mechanic is working on it.

The disparity between the good intentions of government to reform and the practical difficulties in implementing reforms, along with the tension between planning for the long term and dealing with the immediate problems, was a huge challenge.

For instance, nearly the entire national Police force was disbanded or deactivated in the years following the conflict. To rebuild the force, new recruits had to be enlisted, trained and orientated, creating a serious capacity gap.

The objective was to build a force of at least 6,000 Police officers by 2015 in order to serve Liberia’s population of approximately four million, but at the same time, recruits who lacked the requisite performance skills or had serious social maladjustment issues had to be weeded out of the Police, which led to a higher than expected attrition rate. During this rebuilding period, the presence of the United Nations Mission in Liberia (UNMIL) provided some assurances for the physical security of Liberians.

Given the budgetary and capacity constraints facing the Government, how did you prioritize actions to address these challenges?

The Poverty Reduction Strategy (PRS) set out the Government’s priorities for Liberia’s economic development.

Each agency in the justice and security sector developed strategic plans aligned with the priorities identified in the PRS. The PRS itself is based on four pillars: (1) expanding peace and security; (2) revitalizing the economy; (3) strengthening governance and rule of law; and (4) rehabilitating infrastructure and delivering basic services.

The fact that two of the four pillars highlight peace, security, good governance, and rule of law reflects the fundamental importance of these issues to achieving the country’s broader development goals.2 The rule of law component of the PRS promoted collaboration and coordination among Liberia’s justice and security institutions as a means of discouraging duplicity and conserving resources.

In 2009, the Ministry of Justice established a Task Force to address the problem of pre-trial detention and to assess the performance of the fast-track Magisterial Courts, which had been set up in the grounds of Liberia’s largest prison.

Following the war, 70 per cent of the estimated 2,000 people detained around the country were pre-trial detainees, most of whom had been detained for more than four years without a hearing.

Ensuring these detainees, and those affected by their alleged crimes, were afforded due process was an important component of restoring confidence in the justice system. Another Task Force was set up to convene a national conference on harmonizing the formal and informal justice systems.

This process involved the traditional leaders, the Ministry of Justice, the judiciary, civil society, the Law Reform Commission and international partners. We were all of the belief that by consolidating resources we had a better chance of achieving our goals.

For instance, in anticipation of the drawdown of the UNMIL, the Government, in collaboration with the United Nations, developed plans for five regional justice and security hubs around the country to assume the tasks of UNMIL. To date, one hub has been completed and another two are being developed.

These regional hubs were conceptualized to decentralize the management of the justice and security services, thereby providing greater assurances to Liberia’s people located in rural areas. In addition to the formal justice services, it is intended that the hubs will provide access to Alternative Dispute Resolution (ADR), a programme that comports with the traditional customs and practices not involving ordeal; this service will enhance the efforts of the Land Commission, Liberian civil society organizations, the Norwegian Refugee Council, the Carter Center, and others, in the use of non-judicial methods, such as ADR, to resolve land disputes.

Between 2005 and 2010, nearly 2,000 land disputes were resolved through ADR, easing the pressure on the overwhelmed judicial system.

Notwithstanding the problems of budgetary shortfalls, the Government and its international partners have continued to focus on the building of capacity in all components of the criminal justice system by recruiting and training Police officers, immigration officers, prosecutors, magistrates and city solicitors.

Since 2005, Liberia has negotiated and ratified several major agreements with foreign investors in the agricultural, mining and petroleum sectors. Liberia, as is common for developing countries, encourages foreign investment not only as a means of generating revenue, but also as a way of supporting overarching development goals by providing employment, developing infrastructure such as roads, clean water and electricity, and delivering basic services such as housing, education and healthcare in the concession areas.

While Liberia has seen an increase in the rate of employment and improved housing conditions in concession areas, disputes and delays have also arisen because not enough attention has been paid to the human rights risks. For example, communities affected by concession agreements have complained about “land grabs” (requests for additional land from private owners on unconscionable terms) or foreign investors showing disregard for cultural practices (for example, rituals pertaining to sacred burial shrines or removing trees used by communities for food and medicinal purposes).

There have also been complaints of the verbal and physical abuse of workers in some concession areas. The Government’s attention is regularly drawn to these issues as a result of rumblings or intermittent contumacy growing out of concession agreements executed within the past ten years.

In some cases these issues have arisen due to the differences in cultural nuances rather than a conscious violation of certain provisions of the concession agreements or local communities’ rights by the concessionaire.

Lack of familiarity with the Liberian context and failure to consult properly with local communities from the early stages of a project can lead to costly delays and ongoing challenges whereas involving the community on a consultative basis from the outset of the project will most likely reduce the number of issues that might arise during its implementation.

Were these impacts foreseen at the time of negotiating the investment contracts with investors and, if so, can you give an example of the practical and/or legal protections that the Government put in place to manage the human rights risks?

One of the lessons learned over the past ten years is that human rights risks should carry the same significance as financial risks during negotiations as they intersect, and human rights risks have the tendency to produce similar negative impacts to financial risks if not managed properly.

In other words, when negotiating a concession agreement financial consideration should not be seen as more important than human rights. However, the conventional approach to peacebuilding has been to quickly rebuild the infrastructure and the economy without prioritizing the damage to human capital.

Pressure to collect funds, sometimes in the form of signature bonuses, to meet urgent government obligations, such as the payment of salaries for teachers, nurses or Police officers to avert strikes, protests and other forms of civil disruption means that considerations of human rights risks are often deferred.

One of the fundamental flaws is that consultative meetings held with affected communities prior to the commencement of negotiations are rather perfunctory, and often lead to more questions than answers.

Prior to negotiations, the Government should properly ascertain the assets available for the prospective concessionaire and the impact on local landowners. Affected communities should then be provided with accurate information, through public education, on what government intends to do and how the communities will be affected negatively and/ or positively by the concession agreement.

Affected communities should be given time to give feedback and to provide informed consent to a project; alternatively, the Government should be proactive in soliciting feedback where a response is delayed. Finally, before sitting at the table with the concessionaire to commit resources (especially land), both the Government and the affected communities should be satisfied that the outcomes of the project will be more beneficial than not for the communities and the country.

Even where there has been some effort to properly manage human rights risks at the beginning of the process of contract formation, these good intentions and the spirit of negotiation may be negated by weaknesses in the enforcement mechanisms.

A particular issue that arises when a concession agreement includes provisions for the benefit of third parties, such as health care and education to affected communities or obligations with respect to resettlement, is how are those rights enforced, given that the beneficiaries are not direct parties to the agreement?

In his article for the second edition of the Review, Dr. Youseph Farah, in discussing this issue, correctly observes that, under the circumstances, “such third party beneficiaries may find it more difficult to make those contractualised human rights meaningful and effective, even if benefits are bestowed on them in the investment contract”.

In the case of Liberia, although the inclusion of health, education and housing provide direct benefits to residents of the affected communities, the failure on the part of the investor to comply with the provision is viewed as a violation against the State as a contracting party and it is the State that enforces compliance, not the third party beneficiaries.

The UN Guiding Principles emphasize the difference between the duty of the State to protect human rights and the responsibility of the corporates to respect human rights. Given some of the impacts you described above, what has been the role of the State and the private sector in remedying human rights impacts?

In addition to addressing human rights risks in investment contracts, a key role of government is to ensure compliance with the terms of the contracts while maintaining appropriate neutrality. The inability or unwillingness of the State to enforce its contractual rights to ensure that benefits accrue to third party beneficiaries and the tendency of politicians (irrespective of the branch of government) to get involved in the implementation of the agreement can undermine not only the good intentions of negotiators, but also the well balanced contractual provisions.

Once an agreement is compromised by politicians promoting proprietary interests, then there is the tendency for concessionaires to take advantage of the Government’s vulnerability and to request an early review of contractual terms, particularly fiscal terms.

Any government that allows its back to be placed over the barrel is in no position to enforce protections for the rights of citizens under the agreement, or even those rights guaranteed under its national laws.

Given the challenges that exist in Liberia’s post-conflict environment and the limited resources of the national Police, concession agreements allow investors to use private security forces to protect their investments and workforces.

In contrast to the provisions requiring investors to provide social services on behalf of the Government, investors’ private security forces are not empowered to carry out full Police functions. Instead, an investor’s security force is limited in that it may initiate a process involving arrest, interrogation, detention and other forms of law enforcement work, but must defer to the State authorities within 24 hours and when requested by the national Police. Because the likelihood of human rights abuse is great in this sector, the Government retains as much control as it can over the operational aspect of private security functions.

These provisions attempt to strike a balance between investors’ legitimate security concerns and the need for the State to protect the rights of those detained.

The national Police and the Ministry of Justice must remain untainted and uncompromised when overseeing investors’ use of private security forces.

Liberia has made progress on a number of fronts to better protect the human rights of Liberians. What do you think are the most important changes over the past seven years?

Liberia has come a long way since the end of the civil crisis and although challenges remain, the Government has undertaken institutional reform intended to provide protections for basic human rights.

For example, to complement the rebuilding of the national Police force, the Government is now working on a new Police Act. A key element of this Act is to establish a civilian oversight board to receive and investigate complaints from civilians against Police officers, and to guide the Police towards being a professional, instead of a political, institution. If the Act is passed in keeping with the spirit and intent behind it, it will be a major achievement for the rule of law in Liberia.

As described earlier, most concession agreements executed in the last decade have included greater environmental and social protections. In addition, the paternalistic character of the old agreements has been replaced by a paradigm that provides for greater involvement of affected communities in management of community development funds and service delivery.

In 2013, the Liberian legislature ratified an Act to establish the National Bureau of Concessions (NBC), which is broadly intended to monitor and enforce the requirements of the various concession agreements. To date, the NBC’s ability to perform this role has been hampered by a lack of capacity and an inadequate budget for operational expenses; however, it is an important institutional step to create greater oversight of the sector.

Liberia has also domesticated certain international treaties that affect the human rights of citizens such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Right, the Convention Against Torture, the Convention of Eradication of Discrimination Against Women and the Convention on the Rights of the Child, just to name a few.

Liberia has also in the past 10 years established and strengthened several transparency institutions such as the General Auditing Commission, the Liberia Extractive Industry and Transparency Initiative, the Public Procurement Concession Commission, and the Liberia Anti-Corruption Commission.

In addition to national efforts, Liberia has subscribed to international sectoral oversight initiatives such as the United Nations’ Kimberly Process Certification Scheme to prevent conflict diamonds from entering the mainstream diamond market. More recently, Liberia ratified the Voluntary Partnership Agreement with the European Union (EU) under the FLEGT programme.

These bilateral trade arrangements between EU and non-EU timber producing countries require the certification of timber exports to the EU to ensure that logs come from legal sources.

The problem has been that political interests have sometimes trumped the good intentions that underlie the enactment of such laws and creation of such agencies, resulting in poor performance due to lack of funding, lack of capacity, and/or lack of coordination.

While these actions represent positive steps towards international best practices, it is imperative that the Government reflects these commitments by amending its national laws and regulations, and exhibiting more commitment and sincerity in its enforcement actions.

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