Liberia: ‘The Justices Were In Error’ – Associate Justice Wolokolie Dissents on Allowing Senate Hold Ja’neh’s Impeachment Trial


MONROVIA – The Supreme Court has finally subjected Associate Justice Kabineh Ja’neh to impeachment trial before the Senate, but Associate Justice Jamesetta Howard-Wolokollie sees the Bench’s ruling as refusal of the Court to handle its constitutional responsibility of addressing the alleged arbitrariness of the Legislature in its procedure to impeach a judicial officer.

Report by Lennart Dodoo, [email protected]

The Lowdown 

The judgment of the Supreme Court arose from a Write of Prohibition sought by Senators Conmany B. Wesseh, Daniel Naathen, Milton Teahjay and Oscar Cooper. In their petition, the Senators argued that the amendment of the Senate’s rules purposely for the impeachment of Justice Ja’neh runs contrary to the established procedure in Article 43 of the Constitution.

The four Senators contended that contrary to the mandate of Article 43, their colleagues proceeded to amend Rule 63 of the Standing Rules meant for the normal conduct of the business of the Senate, which were prescribed by the Senate alone. By so doing, they argued the Senate arrogated unto itself the authority and power to prescribe the procedure for impeachment to the exclusion of the House of Representatives.

“Petitioners say that the action of the Senate and its product, the amended rule to provide for impeachment are unconstitutional and pray this Honorable Court to so declare,” the petition requested.

The petitioners further contended that the unconstitutionality of the amended Senate rule to provide for impeachment cannot be cured, even by the concurrence of the House of Representatives, because the House cannot legally, draft, approve or amend rules for the conduct of any activity of the Senate, a separate layer of the Legislature; hence any attempt by the Senate to have the House concur with their action would also be unconstitutional.

They also argued that the Constitution prohibits the submission of any citizen or resident of Liberia to any law that was not in effect at the time of office that a person is accused to have committed as provided in Article 21a.

The Petition: “Petitioners say the sole purpose of amendment of Senate Rule 63 of the Liberian Senate by the respondents was to adopt a procedure to enable the Liberian Senate to conduct a hearing on the impeachment of Associate Justice Kabineh M. Ja’neh, there being no such procedure at the Liberian Senate prior to the impeachment of Justice Ja’neh by the House of Representatives as is clearly evidenced by the report of the expanded Judiciary Committee to review Rule 63 of the Senate Standing Rules on Impeachment.”

The petition to impeach Justice Ja’neh was filed before the House by Representatives Acarous Gray (Mont. County, District 8) and Thomas Fallah (Mont. County District 5). Both alleged that Justice Ja’neh “committed a serious official misconduct by engaging in a wanton and unsavory exercise of his judicial discretion far exceeding the bounds of elementary judicial interpretation of issues simply to satisfy his personal ego”.

The lawmakers also want Ja’neh impeached for what they termed as “proved misconduct, gross breach of duty, inability to perform the functions of his office by allegedly allowing justice to be served where it belongs no matter the status of the party affected.”

The Judgement 

In the 3-1 judgement read by Associate Justice Joseph Nagbe, the majority on the bench opined that the Court cannot exercise jurisdiction over the individual Senators who, under Article 42 of the Constitution cannot be held for acts done or performed by them in the chambers of the Legislature.

“This court cannot exercise jurisdiction over the individual Senators for the further reason that this Re Petition initiated at this Court, is not one of the cases specifically named under Article 66 of the Constitution over which the Supreme Court can exercise original jurisdiction,” the majority opinion stated.

The majority on the bench contended that the petitioners chose the wrong path of filing a motion for joinder before the Court, stating that, under the law, joinder of a party is not permissible at the level of the Supreme Court.

“That under the Liberian law, also, a person cannot be both a plaintiff and defendant or a petitioner and respondent in the same case, thus in a dual capacity; the motion filed by the petitioner to join the Liberian Senate seeks to put the Liberian Senate in dual capacity as petitioner and a respondent in this case, which is unattainable in law,” the judgement reads.

The Rebuttal

Associate Justice Wolokolie who refused to sign the judgement because of her dissenting view said it was unfortunate for the majority of the Court to upon hearing the Senators’ petition decided to dismiss the petition on procedural grounds.

“By their decision, the Court has lost the opportunity to settle once and for all this case of crucial national concern surrounding the constitutionality or otherwise of the procedure being adopted by the Legislature in carrying out its impeachment proceeding against Associate Justice Kabineh M. Ja’neh. The Court yet again lost another opportunity to resolve an issue which is critical to ensuring that the Legislature follows the requirements of due process in impeaching a judicial officer,” Justice Wolokolie asserted.

 She said in as much as she agrees that the Senate was the proper party to be named, if any party was necessary to be named, the Supreme Court has frequently propounded that jurisdiction is determined from the averments contained in the complaint. 

She argued that a review of the Senators’ petition simply states that the Constitution being the supreme law and having a binding force and effect on all authorities and persons, any laws, regulations, etc. found to be inconsistent with the Constitution shall to be the extent of the inconsistency be void and of no legal effect.

The petition, by her interpretation, also indicated that the power and authority to make a declaration on the unconstitutionality of any act, action or decision resides exclusively in the Supreme Court. She recalled that the Supreme Court has in the past made decisions regarding legislative acts as provided for in Article 29 of the Constitution.

Justice Wolokolie: “My question is, why the emphasis on the naming of the respondent(s) especially when the caption of the averments of the petition in substance clearly puts the resolution of the issue raised squarely within the jurisdiction of the Supreme Court. I do not see the petition before us as a request for this Court to hold the Senate or any Senator liable for its/his/her action, but rather a prayer to this Court to settle the impeachment issue in relation to Article 43 of the Constitution (1986), and whether the expansion of the Senate Rule 63, as being adopted by the Senate for the impeachment of the Associate Justice, is in conformity with Article 43 of the Constitution. The crux of the Senators’ petition is simply to have this Supreme Court declare and settle this issue of adoption of a proper procedure for impeachment of persons as listed under Article 43 of the Constitution. Petitioners in their petition, and like the previous petition filed by Mr. Justice Ja’neh, are requesting this Court, the guardian of the Constitution, to settle this issue so as to guide against the unlawful actions of the Legislature in conducting its impeachment proceedings.”

According to her, she believes that a resolution of such important question as urged by the petitioners cannot be evaded simply on grounds of procedural technicality, especially given that the Court has often emphasized that the in the dispensation of justice, substance prevails over form. She said, the Court is not inclined to look favorably upon technical points which do not affect the merits of the controversy.

“In this period of country where aggrieved persons are beginning to look to the Court for settlement of issues, we must consider in all of our judicial disposition of cases that mere procedural technicality or form should not gain precedent over substantive issues. Emphasis must be placed on settlement of issues. This time has now come for us to look seriously at, and consider the spirit and intent of our civil procedure statue, Procedure Law…” she asserted.

Not Expedient 

In an interview with FrontPage Africa, human rights lawyer, Atty. Kofi Woods said though he was yet to read the documents pertaining to the impeachment proceeding, in his view, it was not expedient to remove the Associate Justice from the bench. He said, the move isn’t timely for the country. 

“I think the government, the legislature should not pursue that – it is not a good path. I think we need to work more on reconciliation in this country – I’m not convinced and I could be bias – in terms of full disclosure J’aneh  and I were at the university at the same time, J’aneh and I were in the law school at the same time – Kabineh J’aneh is a friend and a brother so I am bias in my view,” he said.

Atty. Woods recalled that Justice Ja’neh is the only judge who wrote a dissenting opinion on the 2017 election fracas. “So, for him to be targeted at this time, it sends a bad signal that this is an attempt to punish him. So, I think we should refrain from that and we do not need a politically subservient judiciary branch, we need an independent judiciary that will dispense justice the right and fair way.” 

‘The Right Decision’ – Cllr. Bull

 A former member of the Interim National Assembly, Montserrado County and co-chair on Rules who also served as chairman of the grievance and ethics committee, Cllr. Pearl Brown Bull told FrontPage Africa that majority on the bench based their opinion on Article 43 of the Constitution.

She said the Constitution clearly prescribes that impeachment of the Chief Justice, Associate Justice or judges of the lower courts lie squarely with the Legislature through an impeachment trial. She said, in this case, the Legislature must be given the chance to look into the merits and demerits of case.

According to her, it is the first time Article 43 of the Constitution is coming into effect since the 1986 Constitution was adopted through a referendum.

She warned against involving tribality and ethnicity and religious sentiments in the case.