Monrovia – Armed with presidential authority and state police, Gabriel Nyenkan, a former member of the national legislature put the incumbent Konah D. Karmoh, Head of Secretariat at the Liberia Extractive Initiative Transparency Initiative (LEITI) at gunpoint and demanded that Karmoh leave the premises of LEITI.
By Rodney D. Sieh, [email protected]
This was March 2019 – and President George Manneh Weah had appointed Nyenkan to the position although Karmoh had three years left in the position as a tenured official. Ironically, the Act establishing LEITI states that only the LEITI Multi-stakeholder Steering Group (MSG) can appoint or remove the Head of Secretariat. LEITI is part of the EITI- a global standard to promote the open and accountable management of extractive resources.
At the time, President Weah, defended his decision, declaring that he was simply exercising his constitutional power in his appointment at the LEITI, as the Liberian constitution gives the President the power to appoint officials of various agencies of government.
The President’s defense was torn apart by the London-based international campaign Group, Global Witness which condemned the appointment of former Montserrado County Representative Nyenkan as “illegal interference”.
Weah Rejected Criticism Over Tenure Breach
Nyenkan too chose to take matters into his own hands by declaring that he invited the police because Karmoh had refused to respect the President’s order, as Karmoh said that his post was a tenure contract given to him by the MSG. Karmoh was hired by the MSG after a competitive recruitment process involving other Liberians.
The MSG had an emergency meeting and called on President Weah to reconsider his decision to “enable the entity fully focus on the crucial task at hand before the country’s next validation due in a few months.”
The President refused.
Even CENTAL, the leading local transparency group, the Center for Transparency and Accountability (CENTAL), took issue with President Weah’s decision to no avail. CENTAL said it was disturbed by the action of President George M. Weah to appoint the Head of Secretariat of LEITI, in violation of the Act creating the integrity institution.
President Weah would try his luck, several other times but it took the courage of Martin S. Kollie, Managing Director of the National Lottery Authority, to put the President in his tracks regarding the appointment of partisans or people who supported his election to a tenured position.
Martin took his case to the Supreme Court who agreed with him in August 2019, that his removal by the Weah government was unlawful.
Kollie was suspended in April 2019 and later replaced as Managing Director of the National Lottery Authority (NLA) for alleged acts of impropriety. The NLA is the government agency regulating lottery, gaming, or chance business in the country.
Following his suspension, Kollie’s lawyer, Cllr. Stanley Kparkillen filed a writ of prohibition to the Supreme Court against the government’s decision against his client “illegal suspension”.
Cllr. Kparkillen argued that the NLA Board at no time cited Kollie to acquaint him about the alleged act of impropriety committed as claimed by the Executive Mansion; therefore, he was seeking legal redress as the only means to remedy the “politically driven decision” taken by the Executive Mansion,
The Supreme court said although Article 89 of the Constitution of Liberia specifically created three autonomous public commissions, but the same Article authorizes the Legislature to create other agencies as may be necessary for the effective operation of Government.
The Supreme Court then said NLA enjoys all attributes of an autonomous public commission, therefore, the Legislature acted within the scope of its authority in enacting laws for its governance, including the provision of tenure for its Director-General.
The court added that any Act passed by the Legislature is presumed to be constitutional unless the contrary is clearly shown, holding that the Legislature is presumed to have acted constitutionally in passing a statute.
Boakai Facing Own Drumbeat
Fast forward to 2024, President Joseph Boakai who defeated President Weah at the polls in 2023, is facing his own dilemma regarding the appointment of supporters and partisans to tenure positions.
On Tuesday, Commissioners of the Liberia Telecommunications Authority (LTA) filed a petition for a Writ of Prohibition against the Liberian government arguing that their removal from office by President Joseph Boakai is unlawful and violates the Telecommunications Act of 2007, which established the LTA and governs the appointment and tenure of commissioners.
The petitioners including Edwina Crump Zackpah (Chairperson), Israel Akinsanya and Zatowon Titus are arguing that they were appointed as commissioners with fixed terms set to expire in 2026 but have been targeted for removal before the completion of their tenures. They argue that the President’s nomination of new commissioners for confirmation by the Senate, while they are still serving their lawful terms, is a violation of their rights and the laws of Liberia.
According to the petitioners, the Telecommunications Act explicitly outlines the process for appointing commissioners to the LTA, including Senate confirmation and fixed terms of office. They maintain that the President’s authority to appoint commissioners is subject to these statutory provisions and cannot override the tenure guaranteed by law.
The high court immediately took the decision to schedule a conference between the complainants and the government, represented by the Ministry of Justice. The Court has also ordered the Executive to stay further actions relating to the nominations to those positions until the conference is held.
With a little over a month to President Boakai’s first 100 days in office, the issue of tenure for public officials appears to be consuming much of his quest for deliverables, even as the President struggles to come to terms with the reality that a good number of his appointments so far has not gone down well with many Liberians and international stakeholders.
2020 Study Trumpeted Issue
Like President Weah and LEITI, the Boakai administration appears to be following similar tone, interpreting the laws to suit its quest to have Weah-era tenured officials.
According to a December 2020 study from the International Journal of Law and Public Administration, which examined important factors of disenfranchisement of political subdivisions in Liberia, especially counties and districts due largely to the presidential power of appointment, is that leaders of the past, including President William VS. Tubman in particular who perfected the patronage system, played on the vulnerabilities of job seekers.
Some historians would argue that Tubman may not have been the originator of the patronage system but he made near perfect the patronage system in Liberia, taking it to “higher heights” because he had more resources derived from unprecedented foreign investments of the 50s and 60s.
While Liberia is an old country, anywhere the details of its past have yet to be systematically researched, President Arthur Barclay must have used patronage as he expanded the State into the hinterland regions. Charles D. B. King is also believed to have done the same with the Firestone investment.
The study correlates associations between the number of county executives, presidential tenure, and referendum approvals to demonstrate a diminishment of democracy due to denying citizens’ right to vote for their local leaders. This, according to the study, resulted from a gradual enhancement of the Liberian president’s power of appointment, which developed neopatrimonialism in Liberia and continues to foster a patronage system of governance that increases public corruption, a practice that has minimized state capacity, fostered state instability, and raised the potential for conflict.
The study sees current day arguments over tenure as a sign that democratic accountability is weakening citizens’ control of their government and broadening the presidential power of appointment that underpins patronage practices.
The study avers: “In this form of administration, presidents (heads of state) view the administration of policies as a “personal affair,” give public officials authority on a need basis, and “treat officials arbitrarily,” while public officials treat citizens in a similar manner. This persistent neopatrimonialism is the crux of public corruption, including bribery, rent seeking, and nepotism, in the Liberian government, and in turn is a large part of the reason for poverty in Liberian society. This is a situation that can be corrected by instituting progressive public policy to enhance democracy and economic development.”
This was clearly evident during the 2023 presidential elections when several tenured officials were seen donning campaign T- Shirts expressing their support for former President George Weah.
Like previous governments, the issue was criticized but officials carried out campaigning unablated and unbothered.
The pressure to show loyalty to ruling parties is a key reason why many officials fall in line, ignoring the codes of conducts that define them out of fear that they could be singled out as not supporting the powers of the day.
In its 2011 post-election report, the Carter Center cited several cases independently investigated and confirmed—that government officials at multiple levels denied opposition parties access to public facilities to hold campaign events and that there was misuse of state resources, especially by the ruling Unity Party (UP).
With a little over a month to President Boakai’s first 100 days in office, the issue of tenure for public officials appears to be consuming much of his quest for deliverables, even as the President struggles to come to terms with the reality that a good number of his appointments so far has not gone down well with many Liberians and international stakeholders
The center observed: “The elections law needs to be strengthened to incorporate provisions on campaigning that currently are scattered in codes of conduct and other regulations. The government of Liberia also must ensure that public space is open to all parties and candidates, public resources are not abused, and individuals who violate the law are held accountable. These measures are critical to ensuring the fairness of the electoral process and the broadest possible public confidence in election results.”
This week, President Boakai’s Legal Advisor, Cllr. Bushuben Keita ruffled feathers when he disclosed that the President’s cabinet has granted the President the authority to replace all tenured officials except those safeguarded by the Constitution. The decision was reportedly made during the cabinet’s inaugural meeting on February 23.
Cllr. Keita emphasized that the cabinet’s directive allows the President to appoint individuals of his choice to executive positions, disregarding existing tenure agreements unless protected by constitutional provisions. He highlighted that tenured positions created by statute were deemed in violation of Article 56a, which outlines the tenure of government officials appointed by the President.
While the Legal Advisor cited past Supreme Court rulings, including cases involving Martin Sallie Kollie and the Liberia Anti-Corruption Commission (LACC), to support the government’s stance on the constitutionality of tenure positions, he did underscore that the Supreme Court views tenured positions as contractual agreements, necessitating compensation for the unexpired term if terminated prematurely.
Furthermore, Keita stressed the importance of upholding contractual obligations in accordance with Article 25 of the Liberian Constitution. He explained that the Supreme Court’s interpretation implies that officials holding tenured positions should receive compensation for the remaining duration of their contracts upon termination.
Interpretations aside, political observers say, the complicated tenure issue is unlikely to go away anytime soon unless strict measures are put in place to ensure that tenured officials steer clear away from issues that put their positions in jeopardy. More importantly, some stakeholders are quietly hoping that the governments of the day allow officials, tenured or not, to campaign during election season without feeling pressured or obligated to show solidarity with the ruling party government.
