…In Karnwea’s, the Court said he “was in substantial compliance with the Code of Conduct Act and that his violation of the Code was not egregious in nature.”
Part I: An Overview of the Rulings
In its March Term, AD 2017, the Supreme Court of Liberia opined on three (3) cases involving the Code of Conduct (COC). The cases were brought by three (3) aspirants rejected by the National Elections Commission (NEC).
These were (1) Abu Bana Kamara, Assistant Minister for Administration, Ministry of Post and Telecommunications, Government of the Republic of Liberia Vs the NEC; (2) Ambassador Jeremiah Congbeh Sulunteh, Vice Presidential Aspirant of the Alternative National Congress and Alternative National Congress (ANC) represented by its Chairman, Mr. Lafayette Gould Vs the NEC; and (3) Harrison S. Karnwea and Liberty Party Vs the NEC.
Kamara was rejected by the NEC in his representative bid for District 15, Montserrado County and Karnwea and Sulunteh as vice Presidential aspirant for the LP and ANC respectively.
The NEC’s rejection of Kamara, Sulunteh and Karnwea is based on Sections 5.1, 5.2, 14.1 and 15.1 of the COC. These sections are directly related to the functions of the NEC. The COC is prescribed in Article 90 (c) of the Liberian Constitution. Here are passages of the contested sections.
Section 5.1: All Officials appointed by the President of the Republic of Liberia shall not:
a) Engage in political activities, canvass or contest for elected offices
b) Use Government facilities, equipment or resources in support of partisan or political activities…
Section 5.2: Wherein, any person in the category stated in Section 5.1 (Emphasis supplied) herein above, desires to canvass or contest for an elective public position, the following shall apply:
a) Any Minister, Deputy Minister, Director-General, Managing Director and Superintendent appointed by the President pursuant to article 56(a) of the Constitution 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 (2) years prior to the date of such public elections;
b) Any other official appointed by the President who holds a tenured position and desires to contest for public elective office shall resign said post three (3) years prior to the date of such public elections.
c) However, in the case of impeachment, death, resignation or disability of an elected official, any official listed above, desirous of canvassing or contesting to fill such position must resign said position within thirty days following the declaration by the National Elections Commission of the vacancy.
Section 14.1: A breach of this Code of Conduct shall evoke, relevant to the particular officer, the disciplinary processes as contained in the standing Orders of the Civil Service, this Code of Conduct and other relevant rules, regulations and laws in force.”
Section 15.1: 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:
Dismissal;
Removal from office in public interest;
Reprimand;
Fine or making good of the loss of public property or assets;
Demotion (reduction in ranking);
Seizure and forfeiture to the State of any property acquired from abuse of office; and
Interdiction/suspension from office with half pay
The cases were all ruled in July 2017. The Court’s rulings have left Liberians agape, especially when the Court had earlier declared the COC LEGAL in the case Selena Mappy-Polson, Superintendent of Bong County Vs the Republic of Liberia on March 3, 2017. Consequently, this article critically analyzes the implications of the Supreme Court’s rulings on our attempt to build a transparent and vibrant democracy.
Mappy-Polson Case: The Legal Basis for Upholding the COC
The case was heard July 18, 2016 and decided March 3, 2017. In her submission, Mappy-Polson contended that the COC was unconstitutional and infringes on her right as enshrined in the Liberian Constitution. She submitted a 19-count petition to the Court. Counts 4-6 and 9, which are essential to the Supreme Court’s ruling, read:
Petitioner says that as a citizen of Liberia she has the right to desire and/or decide to canvass or contest for any elective office for which she is qualified, and to take as much time as is necessary to make a decision before the deadline published or to be published by the National Elections Commission for declaration of candidacy because the Constitution of Liberia, especially Article 81 thereof, guarantees the Petitioner “the right to canvass for the votes for any political party or candidate at any election”, it being obvious that a “candidate” may be herself.
Further to Count Four (4) of this Petition, Petitioner says that her constitutional rights to “desire” and/or “contest” any elective post for which she is otherwise qualified and also “to canvass for the votes for any political party or candidate at any election” are challenged, undermined and violated by Sections 5.2, 14.1 and 15.1 of the Code of Conduct of 2014, which arbitrarily and discriminatorily requires, contrary to the guarantee, letter and spirit of the Constitution, that (i) Petitioner, as a Presidential appointee, to resign her office and employment “at least two (2) years prior to the date of the 2017 General Elections and any subsequent elections once the Petitioner “desires to canvass or contest for an elective public position” during said public elections; and (ii) impose specific sanctions including dismissal for infringement of the said requirement to resign.
Further to Count Five (5) of this Petition and for easy review, determination and declaration of their unconstitutionality, Petitioner respectfully requests Your Honor to take judicial notice of the language/letter of the said Section 5.2 of the Code of Conduct…
Further to Count Eight (8) of this Petition, Petitioner says that Section 5.2 of the Code of Conduct contravenes and is in violation of the Equal Protection Clause of the Constitution in that it discriminates and establishes differential treatment for government employees of the same class “Presidential appointees”. Specifically, Petitioner says that while Section 5.2 speaks of a single category of public employees called “Officials appointed by the President”, the two-year prior resignation requirement established by the said Section 5.2 excludes Ambassadors, Assistant Ministers, City Mayors, Assistant Superintendents, Commissioners, and other officials “appointed by the President” without any conceivable or compelling reasons, apparent or provided. Because of the patent discrimination contained in and represented by the provisions of Sections 5.2 of the Code of Conduct, the said Section of the Code is unconstitutional and invalid and should be so declared by this Court consistent with Article 2 of the Constitution which provides that “any laws, treaties, statues… found to be inconsistent with it shall, to the extent of the inconsistency, be void and of no legal effect.”
The Court considered 4 questions germane to the case. These were:
Whether Section 5.2 of the Code of Conduct which requires prior resignation of Presidential appointees desiring to canvas for elective public offices is an unconstitutional expansion and imposition of eligibility requirement on Presidential appointed public officials?
Whether Section 5.2 of the Code which requires a selected category of Presidential appointees, but does not require another category of Presidential appointees, to resign prior to contesting elections for public office is discriminatory and thus violates the Equal Protection Clause of the Liberia Constitution?
Whether the right to vote or be voted for is a fundamental right that requires compelling reason to justify its impairment; or does the Code of Conduct Act constitute a broad restraint on political competition that restricts the options of candidates available to the electorates?
Do Sections 14.1 and 15. 1 of the Code provides the exclusive and exhaustive range of sanctions for violation of the Code, including its prior resignation eligibility requirement?
In its ruling to Question 1, the Court said the argument raised by Mappy-Polson that the resignation clause in the COC is tantamount to changing or amending the provisos of the Liberian Constitution is ‘hugely ludicrous.’
The Court said Article 34 of the 1986 Constitution of Liberia gives the National Legislature the power to enact laws. The Court said enactment of laws ‘unarguably vests in the Liberian Legislature’. The court cited Chapter VII, Article 77 as its reliance.
On Mappy-Polson’s assertion that the COC is discriminatory as stated in Question 2, the Court rejected ‘out rightly’ Mappy-Polson’s assertion.
The Court cited the opinion in the case Citizen Solidarity Council vs. The Government of Liberia, which was decided June 27, 2016. The Court concluded on the case when it said, “And the question is settled in this jurisdiction that the Supreme Court of Liberia cannot and will not declare an Act of the Legislature as unconstitutional unless the Court is convinced beyond the slightest uncertainty that the legislation is patently in conflict with the Constitution. Where such is not the case, this Court must refrain from making any such declaration.”
The Court treated Questions 3 and 4 as one because they are ‘interwoven’. The Court maintained that it could not be persuaded by the ‘logical inference’ in Mappy-Polson’s argument that her fundamental right to vote has been violated by Section 5.2. The Court then concluded that Mappy-Polson’s ‘argument must therefore crumble.’
The Court’s Rulings in the Three COC Cases
The Kamara Case
Kamara, the current Assistant Minister for Administration at the Ministry of Post and Telecommunications, submitted a 21-count petition to the Court on July 11, 2017 and requested the Court to ‘issue the alternative writ of prohibition against the Respondent’ (NEC). Below are counts 1, 11 and 19.
That Petitioner is a law abiding citizen of the Republic of Liberia and a resident of Electoral District Number 15 … like every other member of the Executive Branch of Government and the citizenry as a whole, falls within the protective enclave of Article 20 (a) of the Constitution of the Republic of Liberia (1986) which mandates that “No person shall be deprived of life, liberty, security of the person, property, privilege or any right except as an outcome of a hearing consistent with provisions laid down in the Constitution and in accordance with due process of law.”
Petitioner says that assuming without admitting that any applicant who is in egregious violation of the Code of Conduct Act, it is required by law to be established in accordance with due process of law which includes the right to notice of the alleged violation(s), the right to notice of the nature of the alleged violation, the right to be heard before condemnation, and the right to appeal from the judgment growing out of the hearing.
Prohibition does not only apply to ongoing acts but to threats of future acts as well. “Prohibition is granted to prevent some great outrage upon settled principles of law and procedure, in cases where wrong damage and injustice are likely to follow such action. Togba vs. Republic of Liberia, 15 LLR 389, 400 (1988); Broh vs. The Honourable House of Representatives, Opinion of the Supreme Court of the Republic of Liberia (Decided 24th January 2014).
In its ruling made July 17, 2017, quashing the alternative writ of prohibition prayed for by Kamara, the Court upheld “the interpretation given in the Polson case in respect to which public officials are covered by the Code of Conduct…. That the petitioner is in violation of the Code of Conduct Act, as he is still retaining the position of Assistant Minister for Administration, Ministry of Post and Telecommunications, while at the same time, applying to contest an elective public office. Thus he is in continuing violation of the Code of Conduct Act.”
Though the Court contended that Kamara was not given due process by the NEC, it maintained that he violated the law and upheld his disqualification by the NEC. “Under the circumstances, we do not see the need to reverse the decision of the NEC, though made without due process, since the conduct amounts to an egregious violation of the Code, and we concur with the NEC’s rejection and disqualification of him from contesting an elective position in the 2017 elections.”
The Sulunteh and Karnwea Cases
In both cases, the complainants also argued that they were not given due process. They also informed the court that they had resigned their positions prior to their being chosen as vice standard bearers of their parties. Sulunteh was Liberia’s ambassador to the US and Karnwea, Managing Director of the Forestry Development Authority (FDA).
In Sulunteh’s ruling, the Court said, “Accordingly, the Court holds that as Co-appellant Sulunteh did not resign his position in line with the Code, he was in violation of the Code….This Court notes, however, that although Co-appellant Sulunteh was in violation of the Code, the records clearly reveal that he had taken step, in compliance with the mandate of the Code, to resign his position even prior to the clarity provided by this Court in the Polson case…. In our opinion, the penalty to be imposed by the NEC cannot rise to the level of his disqualification from contesting elective public office in the ensuing elections.”
In Karnwea’s, the Court said he “was in substantial compliance with the Code of Conduct Act and that his violation of the Code was not egregious in nature.”
In its conclusion of the both cases the Court contended that the NEC could not bar both men from the 2017 election. The Supreme Court then sent the cases back to the NEC to conduct a ‘due hearing process’ to determine the sanctions to be imposed on both men.
Kpanbayeazee Duworko, II, Contributing Writer