On the Question Whether or Not Frank Musa Dean Should be Confirmed as Associate Justice by the Liberian Senate

Manhattan, New York – We commence this brief commentary by noting that the claims herein made are the views of an ordinary Liberian citizen. They are speculative with regards to the constitutional provision on the President’s power to nominate Supreme Court Justices. Hence, these claims have no basis in jurisprudence nor are they based on any doctrine of constitutionality. Like every responsible citizen, owing it to both our conscience and the masses of the people, we engage with certain fundamental questions in Liberian political life because such questions have a tendency to leave indelible imprints on the political and historical memory of our dear country. 

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By Abraham Keita, Activist, Contributing Writer

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Liberia has made enormous democratic gains in recent years. While the West African region has become inundated by military coups and political instability, Liberians have stubbornly persisted in their demand for a free and democratic society. If the history of 21st-century African democracy is written, indeed, Liberia will be a glistering example to Africa and the world. In less than a decade, we will have experienced two democratic transitions: the peaceful transfer of power from one democratically elected government to another. The first transition – since 1944 – occurred in 2017, and the second is ongoing with the inauguration of Ambassador Joseph N. Boakai as Libera’s 46th President on January 22, 2024. 

In lieu of this transition, out-going President Dr. George M. Weah has nominated current Minister of Justice and Attorney General, Frank Musa Dean, as an associate justice of the Supreme Court of Liberia, replacing His Honor Joseph Nagbe. According to the Executive Mansion, Justice Nagbe tendered a letter or request of early retirement from the bench “due to ill-health”. President Weah immediately accepted the request and went ahead – perhaps without careful thought and consideration – to nominate Minister Dean to the country’s highest appellate court in less than 24 hours. In short, all three events occurred within a single day, Wednesday, December 27, 2023: Justice Nagbe wrote to President Weah to inform him about his decision to retire; the President immediately granted his request; and then the President appointed a replacement. 

That the president, and the president alone, reserves the constitutional right and prerogative to appoint justices of the Supreme Court and other judges as prescribed and enshrined in the organic and supreme law of Liberia, the Constitution, cannot be denied. This is a fact that is as bright as the sun, and to deny that the president cannot and should not exercise this constitutional power would be the height of conscientious stupidity. The Constitution is very clear in Article 54 (C): “The President shall nominate and, with the consent of the Senate, appoint and commission–the Chief Justice and Associate Justice of the Supreme Court and judges of subordinate courts.” 
                                                                       

What concerns us is, therefore, not the legality and constitutionality of the President’s decision to nominate Mr. Dean to replace Justice Nagbe, for even a toddler knows that constitutional provisions have a binding weight almost as divine commandments. Rather it is the timing of this decision and its implication on the transition process that preoccupies the minds of well-meaning and patriotic Liberians. The jet-speed with which President Weah has moved to nominate a replacement would make any Liberian – if indeed they are rightly under the inexorable force of logic or reason – wonder whether the president took the time to consider his nominee as well as the implications such appointment has on our political process. It seems to be a fact of the human condition that the individual tends to move with a speed almost equivalent to the speed of light to make decisions and choices that would alter certain events as well as the course of history without careful thought and deliberation. That President Weah moved with haste to nominate Minister Dean to the bench all the more raises suspicions that the president is merely making a last-minute bid to reward a cabinet member who has remained adamantly loyal to the president amid corruption scandals and human rights abuses that mired the Weah administration. How unfortunate that the price for loyalty is a seat on the Supreme Court’s bench.

The appointment of a Supreme Court justice is an event of utmost significance in the political life of any country, particularly modern liberal and constitutional democracies – of which Liberia is one. Liberia has made significant democratic gains, which begs the question whether our country would begin to plunge below those gains if individuals whose characters cannot survive the punitive verdict of the bar of moral rectitude. The answer is affirmative. 

Many Liberians know or have heard that the Supreme Court is the highest court and final arbiter of justice in the country. But they cannot explain why, so let’s explain briefly. The power of the Supreme Court rests on two legal doctrines. It alone holds the power of both original and appellate jurisdiction, according to the Constitution (Chapter VII, Article 66) as well as the Liberian Code of Laws Revised, Title 17 – Judiciary Law, Chapter 2 sections 1 and 2. In common law, when a court exercises original jurisdiction, it means that court, and it alone, has the power to hear certain designated cases for the first time. Thus, the Liberian Supreme Court has original jurisdiction in cases regarding ambassadors, government ministers and consuls as well as when Liberia or another country is a party. Only the Supreme Court can hear and try such cases. Its appellate jurisdiction – given its role as the highest appellate court in the country – means that it has power over appeals from all other subordinate courts including trial courts and tribunals and rulings emanating from judges of such courts. An appeal is a process or application whereby the highest court is indulged or requested to reserve a decision or verdict by any lower court. Hence, the Supreme Court’s place as the final resort in our legal system. This then helps explain why our Supreme Court is considered the supreme and highest judicial body, and hence why it has complete independence from the President and the Legislature. 

Each appointment made to the Supreme Court is of significance and consequence because of the powers which the court exercises according to the two doctrines as explained above. The procedure for appointing the Chief Justice or an Associate Justice is a constitutional provision, explained in only a few words in our Constitution: “The President shall nominate and, with the consent of the Senate, appoint and commission–the Chief Justice and Associate Justice of the Supreme Court and judges of subordinate courts”. Neither the Constitution nor the Judiciary Law explain how or by what processes or steps shall such appointments, especially as regarding the nation’s highest court, be carried out. It falls simply and squarely to the President’s discretion, as he or she deems necessary. 

However, citizens and political pundits become rightly concerned because an appointment of a Supreme Court justice poses serious political implications, since in fact, such appointment is never free from the gridlock of political considerations and partisanship. The President is inclined, often, to appoint to the bench someone who has ideological views and interests compatible with his or her own. The politics and political nature become even more explicit and relevant when the nominee has controversial political opinions that contravene public interests against private ones, or when the outcome of certain constitutional and legal cases before the court is or would be at stake. 

Our concern grows out of our honest desire to see to it that the court remains as impartial and as apolitical as possible. That the court should never become polarized by individuals whose track-records demonstrate a serious lack of moral discernment and independence; rubber-stamped, pigmied weaklings who are pieces in a political game of chess doing the biddings of a King or Queen. This is obviously the case with Frank Musa Dean. As Minister of Justice, he has dastardly and cowardly watched in stubborn silence as scandals after scandals have been perpetuated by individuals of power and influence with little to no attempts to pursue justice. Countless crimes and violence have been carried out against students and activists (famously, the near-death beating of UL student Christopher Sivili by elements of the CDC-led government) as well as the looting of public funds, which have led to some top-brass Weah officials being sanctioned by our traditional and longtime ally, the United States. Not a single investigative action has been brought against sanctioned officials. Several murders were committed including the deaths of minors such as 3-year old Francis Mensah in West Point at the action of a police officer, or mysterious deaths such as the young Princess Cooper in the ELWA Community. We can go on and on listing cases, but our verdict will be the same: Frank Musa Dean failed as the Attorney General.    

For an attorney justice, the relentless pursuit of justice whether involving private citizens or public officials is the only benchmark of loyalty and service. Mr. Dean chose to be loyal and answerable to the cabal of criminals and special interests with whom he dines, rather than serve and be loyal to the country. He has been implicated in more political scandals than any other justice minister in Liberia’s recent history. A simple Google search of his name would see more negative news stories than positive ones about the Attorney General.    

The Liberian Senate would do well – if only to etch its name in the hearts and minds of the Liberian people for doing something good, necessary and needful – to reject and thus not confirm Musa Dean as an Associate Justice for the reasons we have been outlining throughout. We call members of the Senate ‘honorable’ not because they are in themselves individuals of honorability, but because we expect them to do honorable things. Now, even if President Weah insists that Minister Dean sits on the bench while the Senate is on recess and thus without its consent, he would be making what in the American constitutional system is called a “recess appointment” (U.S. Constitution’s Appointments Clause, Article II, Section 2, Clause 3). But this would be considered controversial since the “consent” role of the Senate would have been contravened, and thus, the Senate can reverse such an appointment by its power to overturn certain executive actions as enshrined in the Liberian Constitution. This is perhaps a rare instance where the American legal system and the Liberian legal system intermingle. And since the latter borrows from or is based almost entirely on the former, it would set a significant precedent in terms of both legality and constitutionality. (It must also be pointed out that there is no constitutional ground or law that deals with appointments made while the Liberian Senate is in recess. That’s why President Weah has asked the body to extend its session – having already done so recently – in order that Mr. Dean is confirmed. Hence, our reason for looking to American law should such scenario play out, now or in future).  

Additionally, the Senate should be cognizant of the fact that there is a significant role that rolls out midway in the process of a Supreme Court nomination, which is not mentioned in the Constitution. After the President selects or nominates, but the entire body of the Senate considers the nominee, the nominee goes before the Senate Judiciary Committee. This has become both a standard (traditional) practice and process enforced by the Senate Standing Rules. Appearance before the Judiciary Committee takes weeks, if not months, for normal presidential appointees. It should even take longer for Supreme Court nominees given the gravity and power of the court and the effects such appointments have on constitutional questions, which could last for generations. With only about 26 days between when President Weah nominated Mr. Dean and the inauguration of a new president (December 27 – January 22), the Senate should not move with haste like the out-going president to confirm Mr. Dean. Doing so would further cement the people’s lack of confidence in their elected leaders as well as their view of the Legislature as a toothless bulldog, a body that serves as a handmaid of the Executive. 

Lastly, although retirement for Supreme Court justices is set at age 70, Supreme Court appointments tend to be lifetime appointments. For example, a justice could serve on the bench for decades and still not obtain the age of retirement and may find no reason to resign, except succumbing to death.  

Given all of these, and with a presidential transition already underway, the nomination is both untimely and premature, and it fuels what individuals of reason would describe as an attempt to reward a political ally, and if the Senate confirms Mr. Dean, it would be a political gamble that invites the scorn and mockery of our equals in the comity of nations.  

Mr. Keita is a final year student at Yale University. He is a Liberian activist, an emerging philosopher and political and legal theorist. His interests include philosophy, physics, mathematics, literature, and intellectual history.