The Editor,
I am not against the establishment of a War and Economic Crimes Court (WECC) for Liberia in Liberia. My concerns are about the legality of the proposed retroactive powers of the court as well as the motivation of the mostly Western individuals and governments pushing for the establishment of the court now and not years ago. To this end, I make four points to argue that we can and should consider the establishment of a WECC, but not in the format and for the motivations that it is currently being proposed.
Retroactive prosecution is inconsistent with our Constitution.
Article 2 of the Liberian Constitution makes it clear that the Constitution is the supreme law of Liberia and that ‘any laws, treaties, statues, decrees, customs and regulations found to be inconsistent with it shall, to the extent of the inconsistency, be void and of no legal effect’. Proponents of the WECC having powers to retroactively prosecute and punish people for alleged ‘war crimes’ which were not defined by any law in Liberia at the time that the alleged crimes were being committed are seemingly failing to read the Constitution of the Republic. This is because in Article 21(a) the Constitution of Liberia is clear that ‘no person shall be made subject to any law or punishment which was not in effect at the time of the commission of an offense, nor shall the Legislature enact any bill of attainder or ex post facto law.’ The resolution passed by 42 members of the House of Representatives on Monday 4 March 2024 which proposes the passage of a law that would create a WECC in Liberia to retroactively prosecute alleged war crimes committed in the country between 1979 and 2003 will be inconsistent with these two Articles of our Constitution but also inconsistent with international best practice. Let’s take the International Criminal Court (ICC) as an example. The temporal jurisdiction of the court is from 1 July 2002 because that is the date that the Rome Statue that created the court went into force. The ICC cannot prosecute crimes, including war crimes, committed before 1 July 2002. Now, proponents of this WECC for Liberia will argue that the Special Court for Sierra Leone (SCSL) had a temporal jurisdiction that predated the establishment of the court. That is true. However, I disagree with it because it went against established norms. Furthermore, the cynic in me believes that it was done purely so that Charles Taylor could be prosecuted for war crimes without going after individuals in Liberia at that time. Yet, I am not arguing about what was done in Sierra Leone because I have not read their Constitution to see if it allows retroactive prosecution. However, the Liberian Constitution does not allow it and hence any law passed by the Legislature that is inconsistent with Articles 21(a) must be challenged under Article 2 by those it would seek to prosecute as being unlawful.
Does not benefit Liberians.
The establishment of a WECC with retroactive prosecution powers would not benefit any Liberian who lost a family member or friend during the civil wars. Whilst some might get some satisfaction from putting a couple of individuals in prison, the real victims of the alleged war crimes will not have any real benefit. Just as it is with other crimes that are committed, punishing the criminals does not repair the damage or replace the loss caused by their crimes. As horrible as it might sound, all of us who lost friends and loved ones during the war will not get them back if we punish the alleged perpetrators of the crimes against them. A WECC that is forward looking would have greater benefits for Liberians as it could serve as a deterrence for those contemplating committing similar alleged crimes in the future.
It could further destabilize our country.
Many of the accusations levelled against the CDC-led government was that they were not listening to the voices of Liberians. This government seems to be trying to make the same mistakes. I say this because there is a saying in Liberia that goes ‘you are crying more than the bereaved.’ This simply means that the main victims of alleged war crimes in Liberia are the ordinary citizens. Political elites, most of whom could afford to take their families out of Liberia during the heat of the war did not have the same everyday lived experiences of ordinary citizens. Yet, we do not hear the voices of ordinary citizens being engaged before the House of Representatives passed their resolution. However, the loudest voices in this call for a WECC with retroactive prosecutorial powers are not the actual victims but individuals who were mostly outside of Liberia during the war and whose family members did not experience the same loss as ordinary Liberians. Furthermore, we have already seen multiple violent and peace disrupting protests across the country since President Boakai came to the office of President. Going after a few to appease the West is going to further destabilize the country. If I can copy from the comments of the information minister ‘it would scare investors away.’ Furthermore, these elite sycophants of the West are not even considering the re-traumatization of citizens from having to relive traumatic situations that they have tried to forget over the years. The Psychological impact of that on the country is not even being included in this rush to do the dance of the West.
Justice delayed is justice denied.
Look, the Constitution is clear on the matter of the legality of such a law establishing the kind of WECC that is being proposed. What I want to focus on here is ask the question ‘why now?’ Why did the Americans wait for over 14 years to become ‘so excited’ about a WECC in Liberia that would be illegal if it has retroactive prosecution powers? If I can deviate for a moment. The United States (U.S.) Constitution in Article 1 section 9 (federal laws) and section 10 (state law) prohibits ex post facto laws. Furthermore, the U.S. is not a party to the ICC, nor does it allow any of its citizens to be prosecuted for alleged war crimes. Yet, the Truth and Reconciliation Commission (TRC) submitted its report in 2009 asking for the establishment of a court that would be inconsistent with our Constitution as well as barring others from holding offices in government. The Americans did not dispatch a delegation to Liberia then; why? Was it because they did not want Ellen Johnson-Sirleaf, who was named as one of those who should be barred from holding office to be restricted from participating in the 2011 elections? What do we say to the alleged victims of Alhaji Kromah or Rosevelt Johnson and others who are dead? How will they get justice for their loss? What about Charles Taylor? Would he be allowed to come to Liberia to stand trial or will he be judged in absentia? There are a couple of idioms that are relevant here. Firstly, it is ’let sleeping dogs lie.’ Secondly, it is ‘justice delayed, is justice denied.’ It will be unfair for only a section of people to be prosecuted now when we have waited all these years. It will bring no justice for many because someone like Ellen Johnson-Sirleaf, even if the TRC report is now enforced, would not suffer any punitive actions as she is not seeking public office anymore.
Conclusion
There are two main concerns for me about this push for the establishment of a WECC in Liberia that will have the power to retroactively prosecute people for alleged war crimes committed prior to the establishment of the court. Firstly, it is the legality of the retroactive powers of the WECC. My reading of the Constitution is that it will be an illegal power and would thus render the law void. Secondly, it is about motivation. The TRC submitted its report in 2009. It has been over 14 years, and nothing has been done about it until a delegation from the U.S. comes to Liberia and tells us that we need to establish the WECC in contradiction to our Constitution and suddenly everyone is in a hurry to establish the WECC even with its potential destabilizing impact. Let us not forget that some people will never get justice because of the delay in implementing the TRC report. Yet even the TRC final report in section 10.1.4 ‘The Role of the United States of America’ illustrates that whenever the U.S. gets involved in Liberian politics, it is usually to the detriment of the Liberian people to serve the interests of the U.S. We need to learn from this or else, what the report states ‘the United States’ actions and omissions have led to disastrous results for Liberians’ could become a reality for us once more.
Fidel Budy
United Kingdom
