Deciphering the Growing Disputation of the Supreme Court of Liberia

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ESTABLISHED IN 1839, the Liberian Supreme Court has had a checkered history. The highest court, aptly named Supreme, sits at the pinnacle of Liberia’s judicial system exemplifying the practice of law, and the dispensation of justice in the country.

ON THE ONE HAND, the Supreme Court has had to contemporarily grapple with public perceptions and criticisms regarding the lack of independence of the court, while on the other, it has had to exorcise historic ghosts which impressed that the Supreme Court of old was inaccessible to many ordinary Liberians, and comprised a disproportionately imbalanced membership including in gender, religion and ancestry.

NOTABLY, SINCE 1980 when the True Whig Party was militarily overthrown, appointments to the Supreme Court of Liberia have reflexively included more women, more mix of the two dominant religions (Muslims and Christian), and have dominantly involved Liberians of native ancestry.

WHILE THESE appointments have softened the historic criticisms about the court’s imbalance, repeatedly dogged by the political reach of the Executive and Legislative Branches, the court has done little to shield itself and soften nagging criticisms of its lack of independence, neutrality and courage to say what the law is without fear or favor.

TODAY, SUCH is the increasing sense of public despair and disappointment swirling around the court that the Former President, Ellen Johnson-Sirleaf, who herself named three of the current 5-member Bench, tweeted on 10th October 2020:

THE RECENT DECISION of the Supreme Court of Liberia to deny the opposition appeal for a cleanup of the Voters Roll is a strike at our hard earned democracy.  (@MaEllenSirleaf)

THE FORMER PRESIDENT who is loathed to offer public criticisms of the Weah-led government is right about the effect of the Supreme Court’s recent and shocking action on Liberia’s hard-earned democracy. But she is wrong about the action itself.

ALTHOUGH SOMEWHAT nuanced, to suggest that the court ‘denied’ is to reasonably suggest that the court heard and decided. Denial is a product of hearing. This would be to offer the court more credit than it actually deserves in this matter. The court did not ‘deny’. It declined. It refused to hear the Petition.

PERHAPS THIS unexplained refusal is born out of fear that hearing the complaint would compel the court to rule either to dismiss, “deny”, or rule favorably for Petitioners. To decide in a court of law, it is to be reasonably assumed that the court must, as a necessary first step, agree to hear the issues of contentions or disagreements between or amongst the parties called into its jurisdiction.

MANY HAD WISHED the court would have minimally heard the important election-related complaint placed before it, and then decide. It is settled practice and repeatedly asserted by the Supreme Court of Liberia, that the right to be heard sits at the heart of the Liberian society’s commitment to governing under the rule of law.

IN THIS CASE, however, the court caved on its own foundational principle of justice. It declined to even hear the CPP. It declined to permit accused and accusers to come before it not only in equity but also in the preservation of the rule of law.

FOR MANY, INCLUDING Former President Sirleaf, the Supreme Court, acting through its Associate Justice in Chambers failed the most basic test of a long-held sense of common justice, and faltered in a dangerous dereliction of its sacred and constitutional responsibility to the country – a duty to be the anchor of Liberia’s democracy.

LIKE THE CPP asserted in its Press Statement, a Justice in Chamber can elect to decline a petition brought before the court. However, the matter presented “strikes” at the integrity and credibility of Liberia’s democracy, peace and security. This is not a matter to be declined! 

AND YET, THE Associate Justice, acting for the Supreme Court of Liberia, did. Perhaps there is ‘method to this madness’.

ON THE ONSET OF this administration, contrary to Article 73 of the Constitution which protects the actions and decisions of judges and justices acting in their official capacities, an Associate Justice, Kabineh Ja’neh, was politically tried by the Liberian Senate and removed from office. Perhaps the unconstitutional and political removal of Ja’neh has stained the courts and ushered it into a state of fear of political reprisals for judicial decisions and actions.

THIS IS NOT WITHOUT PRECEDENCE. The Liberian Judiciary and especially the Supreme Court suffered similar experience over a long period when President Doe orchestrated the political removal of Chief Justice Chea Cheapoo. For a long time thereafter, the courts wilted in overwhelming fear and trepidation of the Executive and the Legislature.

SUCH WAS THE excessive control of the courts by the political branches that Doe would go on to publicly order the resignation of the James Nagbe Bench, and brazenly ordered his successor, Emmanuel Gbalazeh, in time, to reinstate his Justice Minister, Jenkins Scott, whose license had been suspended by a decision of the Supreme Court.

OVERNIGHT, CHIEF Justice Emmanuel Gbalazeh issued a press release in which he singularly recalled and nullified the collective decision of the Supreme Court. As an institution, the court lost its soul and became an empty shell for public derision and ridicule!

BEING THE ONLY JUSTICE to dissent against a decision not to call off the rerun in 2017 which the CDC eventually won, it was common knowledge that Ja’neh had drawn the contempt and anger of President Weah, and the CDC.

AT THE SAME TIME, it must also be said that the decision of the political branches to remove Ja’neh was facilitated and assisted by his colleagues with whom he sat on the Korkpor’s Bench of the Supreme Court of Liberia. Ja’neh appealed to the Supreme Court to spare him the political ordeal, and thereby safe and keep the courts insulated from political reprisals. Ja’neh’s colleagues ignored his plea and ruled that their own was worthy of the political vengeance.

CHIEF JUSTICE FRANCIS KORKPOR presided over Ja’neh’s political removal by the Liberian Senate, and conferred an air of legitimacy around the obvious political exercise. This is despite the haunting fact that he (Korkpor), and all other Associate Justices with whom Ja’neh served, had agreed with the decision of Ja’neh who was in Chambers, and actually signed unto the decision assigning the full authority of the Supreme Court to Ja’neh’s action.

LIKE CHEAPOO, JA’NEH WAS REMOVED. The cascade of the court’s public reputation, up to and including this grave declination, has become noticeably alarming. Again, history shows, there are always long-lasting institutional consequences for politicizing the courts.

MIGHT LIBERIA AND Liberians be paying the price for failing to learn from history, and somehow predictably repeating it?

ALTHOUGH THE CONDUCT of free, fair and credible elections are critical to Liberia’s peace and democracy, presented with a Petition from the opposition on the credibility of the conduct of the December 8 Polls, the Liberian Supreme Court is found wanting. Acting through its Justice in Chambers, the Supreme Court declined to bring itself to hear the complaint brought to it by four opposition political parties acting under the umbrella of the Collaborating Political Parties (CPP).

NOTABLY, THE CPP IS QUALIFIED to place such an important complaint before the bar of the Supreme Court of Liberia. The group draws its qualification from the Liberian Constitution, and has a certificate issued to it by the National Elections Commission (NEC), against whom it had complained. The Liberian Constitution makes political parties relevant stakeholders in the electoral process.

FOR MANY LIBERIANS, the CPP’s Petition to the court seemed uncomplicated and straightforward. The Petition is a matter that is squarely within the province of the Supreme Court to hear and decide. The CPP, according to the filing, requested the court to compel the NEC to clean up the Voters’ Roll of 2017 on which the pending elections are to be conducted or adduce evidence that it has already done so.

INTERESTINGLY, CLEANING UP the Voters’ Roll was not being instructed by the CPP. The decision to subject the 2017 Voters’ Roll to a clean up was directed by the Supreme Court of Liberia on December 7, 2017, and recommended by the Special Technical Support Team of ECOWAS invited to support and assist in the 2017 Runoff Polls.

ON JUNE 5, 2020, the Legislature of Liberia also instructed the clean up of the same Roll as the basis for the conduct of “legitimate” Mid-term Senatorial Elections, which the Legislature postponed from October 13 to December 8. 

ELLEN JOHNSON-SIRLEAF, the first female on the African Continent to be democratically-elected President of a country is right to describe Liberia’s democracy as “hard-earned”. Memories are still afresh about the consequences of individual failings and institutional derelictions – memories of personal grief and national implosion which we assailed to come to today.

AFTER YEARS OF DESTRUCTIONS, our troubled nation reasonably planted the nascent roots of a thriving young democracy in soil still freshly filtering the blood, sweat, and tears of so many Liberians and friends of Liberia. Liberians know that democracy, and its principles of equality of all men and women before the same law, would forever guarantee our peace, security, freedom, and stability.

MANY WERE JAILED, hunted, beaten, and suppressed for their fractured nation to be democratic – for the right to have their voices equally heard, their votes equally counted, and their rights equally protected as citizens of the same sovereign nation. 

AS SUCH, FOR THE highest court to “decline”, and refuse to hear a reasoned complaint on the credibility of Liberia’s upcoming elections, is more than a stunning rebuke to the CPP. It is an unfortunate dishonor of the many lives lost so that our country will be governed not by individual desires and wishes – not by an appeal and invitation to lawlessness – but by the rule of law, and a courageous inclination to hear and say, without fear or favor, what the law truly is, for all citizens and groups.

THIS IS THE JUST and befitting tribute the courts can, and must continue to pay, for the sacrifices of the many who paid the ultimate price for Liberia’s peace and democracy.  

BY THE ARCHITECTURE of the Liberian State, the court is the anchor of Liberia’s democracy. Declining to hear and decide matters relating to the credible conduct of elections in the country is a dereliction, in no small measure, of the function of the court.

IT MUST BE THE uncompromising mission of the court – no less the Supreme Court – to invite and keep its doors widely opened to contending parties who desire to peacefully and legally adjudicate all matters of national imperatives and consequences, especially those concerning the credible conduct of elections in the country.

IT IS FIRMLY ESTABLISHED that elections are triggers for conflicts, and in democratic societies, are the most sacred process of a democratic order. Therefore, one has to wonder, where did the Associate Justice, acting for the Supreme Court, expect the parties to take their concerns and complaint for just, peaceful and reasonable adjudication, if not to the courts?

HOW SOVEREIGN and peaceful can our nation and society hope to be if our courts are declining to hear matters affecting the credibility of our elections?

THIS DECLINATION is anything but trivial. It is grave. Indeed, it compromises the neutrality and independence of the court. By declining to even hear the CPP’s Petition, the Associate Justice, acting for the court, perhaps thoughtfully, shielded the NEC and the Executive Branch from responding to the complaint of the CPP. In shielding the Executive and the NEC, the Associate Justice compromised the court by doing for an accused party what it should have been given the chance to do for itself. Had the Associate Justice conducted a formal hearing, she would have been obligated to hear from the NEC and the Executive.

THEREFORE, DECLINING, without formally hearing the complaint of the CPP means that the NEC and the Executive have no obligation to respond to the grave complaint of the CPP. Effectively, the NEC and the Executive does not have to say if it has cleaned up the Voters’ Roll, nor do they have to provide any evidence that it has done so in keeping with repeated instructions to clean up the Voters’ Roll, including from the Supreme Court itself.

WHAT COULD HAVE reasonably caused an Associate Justice, acting for the Supreme Court, to “decline” to hear a matter of such grave inputs to the conduct of free, fair and credible elections in the country?

WHAT COULD HAVE reasonably caused an Associate Justice to ignore the consequential fallout of conducting an election under evolving conditions of disagreements about the critical questions of legitimacy and credibility, and with a Voters’ Roll which is variously identified as bearing the weight of undermining Liberia’s quest for not only consolidating the gains of its infantile democracy, but also the nation’s continued stability, security and peace?

WHOSE INTEREST is served by the Associate Justice, acting for the Supreme Court, to decline to hear, and thereby, refuse to enjoin the CPP, the Executive, and the NEC in a civilized undertaking of what is right for Liberia, in the continued protection of its peace, sovereignty and democracy?

IN DECLINING; where, and by what means, is the court asking political parties, who are important stakeholders in the elections, to contest their claims, accusations and grievances? Is the court inviting lawlessness and anarchy?

FORMER PRESIDENT SIRLEAF IS RIGHT. Her 29-word tweet is a call to responsible citizenship and sober reflection. All Liberians, friends of Liberia, and the international community must heed the warning. The independence, credibility and neutrality of the Liberian Supreme Court are growing in suspicion.

WHEN THE COURTS begin to fail and to cascade in public consideration, the society eventually falters and fails. Democracy is threatened where the courts exude the impression of being politically
compromised. This, too, is the history of Liberia.

IN THE END, it is not how “hard-earned” Liberia’s democracy is that matters. It is how hard Liberians are willing to keep and preserve their democracy.

THE CPP DESCRIBES the declination as “offensive”. It truly is, not only for the CPP, but even more, for the entire Liberian nation.

WHAT IT ALSO IS, is defining. It is difficult not to view the declination for what it profoundly indicates – a definition of where Liberia is in relation to its commitment to govern under the rule of law. This declination, without the courage to entertain a formal hearing of the parties, defines the standard of the rule of law in the country as well as the progress of Liberia’s democratic aspirations, or a lack thereof.

INDEED, THE DECLINATION by the Associate Justice, acting for the Supreme Court of Liberia, rises in relevance to define the society we are waywardly becoming.

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