Monrovia - Despite a recent decision by the Supreme Court of Liberia to recognize the controversial Code of Conduct Act, the fate of former Central Bank of Liberia Governor, Dr. J. Mills Jones and scores of others, is still hang in the balance.
The ultimate decision now lies in the hands of the Liberian presidency, who for the past few days, according to sources, have been struggling to name an Ombudsman – or a group - that should decide the fates of 2017 election hopefuls, unsure how they could or could not be affected by the high court ruling.
The code applies to all officials covered under Article 56 of the constitution including Ambassadors, Ministers, Consuls, Chief Justice, Associate Justice of the Supreme Court, Judges of the subordinate courts, Superintendents, other county officials of other political subdivisions; members of the military from the rank of lieutenant of its equivalent and above; and marshals, deputy marshals and sheriffs.
Section 5.2 (a) of the Code of Conduct dictates that any Minister, Deputy Minister, Director-General, Managing Director and Superintendent appointed by the President …and a Managing Director appointed by a Board of Directors, who desires to contest for public elective office shall resign said post at least two years prior to the date of such public elections.
In the case of other appointed officials who hold tenured positions and desire to contest for public elective offices, the Code of Conduct dictates in Section 5.2 (b) that such officials “shall resign said post three (3) years prior to the date of such public elections.”
Three of the five justices of the Supreme Court - Chief Justice Francis S. Korkpor, together with Associate Justices Kabineh M. Ja'neh, both of Nimba County, and Sie-A- Nyene G. Youh - voted in favor of the 2014 National Code of Conduct Act, with the remaining two - Associate Justices Philip A.Z. Banks and Jamesetta H. Wolokollie- voting against it.
The issue stems from a 2014 case filed by Bong County Superintendent Selena Polson-Mappy, who petitioned the court against the passage of the Code of Conduct that was submitted by the Executive Branch of Government in 2009, arguing that it was unconstitutional.
Superintendent Mappy was expected to contest one of the representative seats in her county during the October elections. But in a landmark decision, three associate justices said that the code of conduct Act was enacted on the wisdom of the Legislature in the supreme interest of the Liberian people to protect the resources of the country from abuse by public officials and to create a plain/level political field for all contesting candidates.
The court decided: "The act is not, in our opinion, repugnant to or in conflict with any provision of the Constitution to warrant its declaration as being unconstitutional as contended by the petitioner.”
The stakes have never been higher for Liberia and the Sirleaf presidency on the last leg of its second and final term.
The administration is not only running against time, but is also under scrutiny as it deciphers potential candidates for the Ombudsman posts.
Presidency Under Scrutiny
In an already polarized and politically-charged 2017 presidential and legislative elections, political observers and partisans from various fronts are standing by to see what the Ombudsman team will look like.
If Sirleaf take the route of political appointees viewed as favorable to her, it could rattle critics from all sides considering the fact that two of her trusted aides – Lenn Eugene Nagbe,, Secretary General of the ruling Unity Party and Julia Duncan Cassell, Minister of Gender and Development who has her sights set on a seat in the national legislature – are among those first in line to take a hit.
Mr. Harrison Karnwea, head of the Forestry Development Authority, until his resignation recently, is also under scrutiny as he is expected to be named as a running mate to Charles Walker Brumskine, political leader of the opposition Liberty Party.
Mr. Alexander Cummings, political leader of the opposition Alternative National Congress told FrontPageAfrica this week that the code does not apply to him, suggesting that it was non political and offered him a chance to give back to his homeland. “When I agreed to serve on the (BWI) board, I had declared my intentions.
So, it wasn’t like it was a secret, it wasn’t like it was not known.
My intension to aspire to serve our people was very well known to the Liberian people and the government when I accepted that. So, the code in no way applies to me, I am not concerned about it at all, so I’m very confident that it will not be a barrier to my aspirations to lead our country.”
Jones’ political wing, the Movement for Economic Empowerment (MOVEE), has also slammed the ruling, insisting that he will march on with his quest for the presidency.
“Since the passage into law of the Code of Conduct, some politicians and their surrogates have been trying very hard to tie in the Former Executive Governor of the Central Bank of Liberia (CBL) and Standard Bearer of the Movement for Economic Empowerment (MOVEE), Dr. J. Mills Jones to said Code of Conduct.
On Tuesday, President Ellen Johnson Sirleaf issued Executive Order No. 83 pertaining to the Office of Ombudsman.
The Ombudsman is a group of persons appointed or authorized by the President of the Republic of Liberia and confirmed by the Senate to enforce, oversee, monitor and evaluate adherence to the Code of Conduct. Such individual or group of persons shall receive and investigate complaints against Public Officials, Employees of Government and national institutions.
In the case where there is a determination of guilt and violation of the code by private and Public Officials and Employees of Government, said violation shall be submitted by the Ombudsman to the Liberia Anti-Corruption Commission (LACC) or other relevant Agencies of Government.
Punishment could include fines, dismissals or loss of assets. “But the threshold is, if you don’t resign within the statutory time you are banned or should be banned.
Part XII, 12.1 of the code regulations creating the office of the Ombudsman states that office of an Ombudsman is established as an independent autonomous body which shall be responsible for the enforcement, oversight, monitoring and evaluation of the adherence to the Code of Conduct.
Section 12.2 states: “The Office of Ombudsman shall receive and investigate all complaints, in respect to the adherence to the Code of Conduct.
The Office of the Ombudsman shall be responsible to collaborate with the three Branches of Government and Civil Society Organizations in order to develop regulations for the Code of Conduct."
PART XV; Section 15.1 of the Code regarding sanctions for Infringement states: “Sanctions for any breach of this Code of Conduct shall be 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 offence or misconduct, one or more of the following penalties may apply: a. dismissal; b. removal from office in public interest; c. reprimand; d. fine or making good of the loss or damage of public property/assets; e. demotion (reduction in rank); f. seizure and forfeiture to the State of any property acquired from abuse of office; and g-interdiction/suspension from duty with half pay.”
Executive Order Steps in
PART XVI regarding procedure for reporting violations states: “Procedures for submission of Complaints Submission of complaints shall be in accordance with procedures established by the autonomous body responsible for Ombudsman functions.
According to the Presidential order: “Whereas, Article 90 (c) of the 1986 Constitution of Liberia empowers the legislature to prescribe a Code of conduct for all public officials and employees, stipulating the acts which constitute conflict of interest or are against public policy, and penalties for violation thereof.”
Executive Order No. 83 noted: “Whereas, consistent with the constitutional provision above, the Legislature on March 6, 2014, passed an Act Prescribing a National Code of Conduct for all Public Officials and Employees of the Government of the Republic of Liberia, which Act was approved on March 31, 2014, and published on June 20, 2015 (hereinafter referred to as the Code of Conduct.”)
Accordingly, Part XII of the Code of Conduct established the Office of Ombudsman as an independent autonomous body with responsibility to enforce, oversee, monitor and evaluate adherence to the Code of Conduct.
The Executive Order further notes: “Whereas, it has been observed that the Code of Conduct did not provide details pertaining to the Office of Ombudsman including qualification and tenure of the Ombudsman, which amongst other things, have made it difficult to appoint suitable persons to the Office of the Ombudsman and thus begin implementation of certain provisions of the Code of Conduct.
That whereas, in the exercise of the Executive Power vested in the President by the Constitution, the President may issue executive orders in the public interest, either to meet exigencies or address particular situations, which cannot await lengthy legislative processes.
“Now Therefore, I, Ellen Johnson Sirleaf, President of the Republic of Liberia, by the power vested in me, do hereby establish, by this Executive Order and for the purpose of the foregoing, set out below, with specificity matters pertinent to the office of the Ombudsman for the enforcement, oversight, monitoring and evaluation of adherence of the Code of Conduct.”
Under section 1: Definition and Interpretation – “All words shall have the same meaning and interpretation as defined in the Code of Conduct”. Section 2:- “The objective of this Executive order is to meet exigencies and or address particular situations, which cannot await lengthy legislative process”. Section 3 - provides that:
“The application of this executive Order shall be consistent with part II, section 2.1 and section 2.2, of the Code of Conduct”. Section 4 – postulates: “The Office of the Ombudsman is hereby empowered to investigate, on its own initiative or on complaint by any person, or cause such investigation to be carried out, into the violation of the Code of Conduct”.
Section 5 (a) (b) (c) and (d) – of Executive Order No. 83 – highlights the composition of the Office of Ombudsman; appointment of three persons through a gender-sensitive lens with the consent of the Senate – one of whom will be appointed as Chairperson; the qualification; Term of Office; and Removal from Office.
Meanwhile, Section 6: (a) (b) and (c) – encapsulate the Role of the Chair; Delegation of Powers; and Decision Making. The decisions of the Office of the Ombudsman shall be by simple majority in all administrative hearings and shall be in writing.
Moment of Truth Looms
Section 7: (a) (b) (c) (d) and (e) of Executive Order No. 83 underpin Grants, vis-a-viz their application; Rules and Regulations; Budget; Reports – the Office of the Ombudsman shall make periodic (quarterly) reports to the President and Legislature on progress made in fulfilling its mandate; and Amended Act – mandating that the Office of the Ombudsman shall draft an Amended Act consistent with the provisions of this order within 60 days.
In light of the spirit of Section 8 – “This Executive Order took immediate effect on 13th March, A.D. 2017.
As anticipation heightens over the potential makeup of the Ombudsman team, Sirleaf and the ruling UP face a herculean task of forming an impartial team that will appease all sides in what is expected to be a rather complicated election year.
Early signs are pointing toward members of the clergy, civil society or the media but whichever direction Sirleaf decides to look, scepticisms may persist.
For now, the window of opportunity may be closing in on those standing on the fringes of a controversial code that if implemented could rattle the final makeup of Liberia’s moment of truth; The 2017 presidential and legislative elections.