Monrovia – In September 2012, the late Chief Justice of the Supreme Court of Liberia, His Honor Johnnie Lewis, citing health issues, stepped down as head of the judiciary branch, requesting from President Ellen Johnson-Sirleaf, a plea for an early retirement. At the time, President Sirleaf said the chief justice, who had been in failing health, asked for early retirement to seek medical attention.
By Rodney D. Sieh, [email protected]
Lewis died three years later, on January 21, 2015, en route to the John F. Kennedy Medical Center after a prolonged illness.
Last week, Sirleaf’s successor, President George Manneh Weah, with barely a month remaining on his presidency, received and granted a request from the Associate Justice of the Supreme Court of Liberia, His Honor Joseph N. Nagbe for an early retirement due to ill-health.
While both Lewis and Nagbe’s scenarios draw distinct similarities, it is the timing of the nomination that has triggered a wave of divided public sentiments and split the court of public opinion, dealing a massive conundrum for Cllr. Frank Musah Dean, President Weah’s Attorney General and Minister of Justice, who has been tipped by President Weah, on his last lame duck period, as Justice Nagbe’s successor.
Divided Opinion on Weah’s Pick
Opponents of the nomination, including Senator Milton Teahjay (Unity Party, Sinoe) and Senator Prince Y. Johnson (NUDP, Nimba) have raised questions about the constitutionality of the nomination.
Senator Teahjay, in a communication to Pro Temp Albert Chie, requesting a hold of the confirmation of Cllr. Dean has warned against any decision from the Senate that will conduct confirmation proceeding for President Weah’s Nominee to the Bench of the Supreme Court of Liberia.
According to Senator Teahjay, Justice Nagbe has not resigned or voluntarily exited his position in keeping with the constitution.
Senator Teahjay argues that in compliance with Title 17 of the New Judicial Law and other applicable laws of Liberia, there is no vacancy on the bench of the honorable supreme court of Liberia.
Says Senator Teahjay: “The confirmation of the Justice designates Musa Dean without ensuring that Associate Justice Nagbe legally vacates the position as Associate Justice will result to six (6) Justices on the bench of the supreme court and such act will be in violation of Article 67 of the 1986 constitution of the Republic of Liberia which provides in pertinent that the supreme court shall comprise one chief justice and four Associate justices.”
Senator Teahjay also believes that Associate Justice Nagbe’s request for early retirement is not supported by law and should not be honor by the honorable Liberian senate considering that the request does not meet the minimal requirements for approval as contained in chapter 13 section 13.3 and 13.4 of title 17 of the New judicial law, Liberia code of law revised.
According to Sen. Teahjay, contrary to the communication from associate Justice Nagbe requesting early retirement due to prolonged illness, the Executive Mansion Published on Thursday December 28, 2023, that the nomination of Cllr. Frank Musa Dean was a result of resignation of his honor Cllr. Joseph Nagbe due to illness. Teahjay said: “In view of the aforesaid, it is a fundamental law and common place to resolve that the decision to remove any associate justice on grounds of inability to perform the function of the as otherwise proven that justice Nagbe resigned upon the conduct of an investigation, it will not only be a gross miscalculation on the part of the Senate but an unorthodox act to proceed with such confirmation of the nominee.”
The question of a vacuum remains a matter of not only intrigue but public scrutiny.
In his own words, Justice Nagbe has said that he is not well. In fact, the ailing Justice says he has been off the bench in the last eight months. Feeling that it is unfair to leave a void on the bench, he decided on his own – and without any duress, without any force, to request an early retirement.
Referencing Repealed Law
Sen. Teahjay’s reliance for his argument – The Judiciary Law was amended in 2010 when the Pension Law was passed. However, the Pension Law was also repealed in 2016 when the Legislature passed the National Social Security Act. Section 89.8 of the Act clearly spells out who is entitled to pension benefits which includes the President, Vice President, Speaker, Senate Pro-Tempore, Chief Justice, Justices of the Supreme Court, among others.
Section 89.20 of the Act also says a personal shall be entitled to retirement pension if:
He/She has attained 60 years of age;
He/she has retired from employment; and
He/she has paid monthly 100 monthly contributions and born before the year 1980, or
He/she has paid 144 monthly contributions and born before 1980 or after
Some legal scholars contend that the President’s power to appoint is contained in Article 68 of the Constitution and that no law can abrogate constitutional provision. Article 2 says: “The Constitution is the supreme and fundamental law of Liberia, and its provisions shall have binding force and effect on all authorities and persons throughout the Republic.”
The argument has led some political observers to conclude that it might be necessary to place the debate into perspective, particularly due to the fact that Article 68 of the Constitution sets the qualifications for Justices of the Supreme Court, namely that a nominee must be a citizen of Liberia; and one who has practiced before the Supreme Court for 5 or more years.
Supporters of Cllr. Dean says he fits the criteria because he has practiced before the court for 31 years, ran a successful law firm for 15 years prior to coming to Government.
It is the timing, critics say, is triggering arguments on both sides of the aisle.
In contrast, the skills required at the Ministry of Justice are different from those required as Justice of the Supreme Court. The Justice Ministry requires multiple skills associated with law enforcement and offering legal advice to the Executive Branch of Government while the primary skill required as Justice of the Supreme Court is knowledge of the law, meaning it must do strictly with the interpretation of the law.
This is where some supporters of Dean argue that detractors of his nomination may be trying to compare apples to oranges while failing to explain why he may not be competent for the job.
Gongloe on Unprecedented Dilemma
Those arguing against Cllr. Dean’s nomination argue that the timing is simply just not right. Former warlord-turned Senator, Prince Y. Johnson, says President Weah is playing a double standard judging by his last-minute decision to nominate his justice minister to the Bench of the high court.
Ironically, Senator Johnson, like many of those questioning the President’s timing of Cllr. Dean’s nomination has not questioned the President’s legal authority to nominate his former Justice minister. “To me, it is a cover-up, the new government will be auditing; his (Dean) Ministry needs to be audited; he needs to account for his stewardship at the Justice Ministry. Who is going to account for malpractices?” the Nimba Senator argues.
The timing of Cllr. Dean’s nomination has some familiar undertones from Liberia’s past.
Cllr. Tiawan Saye Gongloe, who ran on the ticket of the Liberia People’s Party in last October elections, while addressing a Lecture on the Election and Inauguration of the Presidents of the Republic of Liberia last week at the Lewis Arthur Grimes School of Law added his voice to the issue of the timing of the nomination. The learned lawyer asserts that the implications of the duration between the declaration of results and inauguration, sets up a backdrop that is the crux of the ongoing debate over an unprecedented predicament that is likely to haunt legal scholars for years.
For the first time since 1877, an incumbent president seeking re-election has lost which is unprecedented. “The last time that Liberia experienced an incumbent president being defeated was in the election between incumbent President James Spriggs Payne of the Republican Party and former Vice President Anthony W. Gardner of the True Whig Party[1]. Gardner was Vice President to Joseph Jenkins Roberts from 1871 to 1876 on the ticket of the Republican Party. In 1877 he ran as the presidential candidate for the True Whig Party against incumbent James Spriggs Payne of the Republican Party and won.”
Cllr. Tiawon Saye Gongloe, Presidential Candidate, Liberia People’s Party
Cllr. Gongloe argues that the time between the declaration of the winner of a presidential election is up to ninety days or more if the winner is declared, for example, in five days or in a shorter time.
Says Cllr. Gongloe: “Where there is a virtual one-party state, the issue of time lag may not be a problem. However, where there is a vibrant democracy, this may be a problem given the probability of frequent change of ruling parties. The purpose of this presentation is to stimulate critical thinking among legal scholars and the larger society on this issue.”
The Difference in Sierra Leone
This is certainly not the case in next-door Sierra Leone where, “a person elected to the office of President shall assume that office on the day upon which he is declared elected by the Returning Officer, or upon the date that his predecessor’s term of office expires, whichever is the latter.”
In Liberia, the lapse of three months gives the president ample time to continue his role and make decisions like nominations to offices such as the Supreme Court without any opposition or questions about legality vs. illegality.
For Gongloe, the recent election results for both presidential and legislative candidates have seen people making their choices, based on whatever influences them as shown by the difficulty for any presidential candidate to obtain a one round victory since 2005 and the replacement of nearly all incumbent lawmakers seeking re-election, with each house losing over fifty percent of its members standing for re-election since 2011.”
Cllr. Gongloe asserts that, for the first time since 1877, an incumbent president seeking re-election has lost which is unprecedented. “The last time that Liberia experienced an incumbent president being defeated was in the election between incumbent President James Spriggs Payne of the Republican Party and former Vice President Anthony W. Gardner of the True Whig Party[1]. Gardner was Vice President to Joseph Jenkins Roberts from 1871 to 1876 on the ticket of the Republican Party. In 1877 he ran as the presidential candidate for the True Whig Party against incumbent James Spriggs Payne of the Republican Party and won.”
Interestingly, Gardiner was originally a member of the Republican Party which initially had the support of Liberia’s first president, Joseph Jenkins Roberts. The Republican Party weakened soon after the death of Roberts. After the end of President James Spriggs Payne’s term in 1878, Gardiner ascended to the presidency marking the beginning of a century of True Whig Party dominance in Liberian politics. In 1899, the Republican Party disappeared.
The Republican Party, early named Liberian Party, was founded soon after the founding of Liberia in 1848. It was known to be made up primarily of Americo-Liberians who had mixed African and European ancestry and was a strong rival to the True Whig Party.
Gardiner’s election in 1877 began the century-long political dominance of the True Whig Party.
For Cllr. Gongloe, it is only in recent years, since the end of the brutal civil war, that Liberians are getting accustomed to using their votes to demonstrate their collective power over politicians and excited about the beauty of peaceful change of power, there are concerns about the time it takes for a president-elect to be sworn in office in order to begin the people’s work. “The questions are whether the casting of ballots on the second Tuesday in October of an election year and the inauguration of the president-elect on the third working Monday in January of the succeeding year is reasonable and in the national interest? Are there benefits or risks associated with this time lag? Is there a need to make the time shorter, given recent experiences, especially those of the 2017 and 2023 Presidential and Legislative Elections?”
Legal scholars like Cllr. Gongloe asserts that for critics of the nomination to bolster their argument, the law may have to be revisited.
Liberia vs. US: Lame Duck Predicaments
Lame-duck nominations are rare for Liberia, especially for tenured positions like the high court. Toward the end of her presidency, former President Ellen Johnson-Sirleaf gave the greenlight for the board of the central bank to appoint her son, Charles Sirleaf as interim governor, replacing Mr. Joseph Mills Jones. Charles Sirleaf had served as the deputy governor of the bank and worked for the bank for 12 years.
In the US, where much of Liberia’s laws and actions are modeled, there have been a few lame duck appointments to the high court, resulting in mixed results.
On March 16, 2016, President Barack Obama nominated Merrick Garland for Associate Justice of the Supreme Court to succeed Antonin Scalia, who had died one month earlier. At the time of his nomination, Garland was the chief judge of the United States Court of Appeals for the District of Columbia. However, the eleven members of the Senate Judiciary Committee’s Republican majority refused to conduct the hearings necessary to advance the vote to the Senate at large, and Garland’s nomination expired on January 3, 2017. The Garland decision by the Republicans marked the first time since the Civil War that a nominee whose nomination had not been withdrawn had failed to receive consideration for an open seat on the Court. Obama’s successor, Donald Trump, a Republican), nominated Judge Neil Gorsuch to fill the vacancy on January 31, 2017, soon after taking office.
Four years later, President Trump would face his own dilemma following the death of Justice Ruth Bader Ginsburg on the high court. The lame duck President named Conservative favorite, Judge Amy Coney Barrett to succeed Ginsburg, forcing a Senate confirmation before Election Day in a move that significantly alter the ideological makeup of the Supreme Court in the US.
Besides the Obama and Trump examples there have been others.
Political scientist Keith E. Whittington, a William Nelson Cromwell Professor of Politics in the Department of Politics at Princeton University, writing in the Volokh Conspiracy, notes that John Adams, Andrew Jackson, and Martin Van Buren had no problem filling seats on the Court at the last minute. “The Republican Rutherford Hayes had little difficulty persuading a Democratic Senate to confirm a lame-duck nominee when the alternative was waiting for his Republican successor to work with a more-Republican Senate after the inauguration. Benjamin Harrison had a harder time because the Democratic minority had the ability to run out the clock with a filibuster and wait for the incoming Democrat Grover Cleveland to be sworn in. Harrison outmaneuvered them by nominating a former Democratic senator for the seat. If he had tried Obama’s gambit of naming an older, moderate Republican, he no doubt would have failed to fill the seat. The apostate “accidental president” John Tyler did not have much luck convincing a Whig majority in the Senate to confirm his nominations.”
According to Whittington, Lyndon Johnson tried to game the system by convincing Chief Justice Earl Warren to announce his retirement rather than risk the seat falling into frontrunner Richard Nixon’s hands, and the move backfired when Warren Court critics in the Senate refused to line up behind Johnson’s favorite, Abe Fortas. “When Justice Charles Evan Hughes stepped down to accept the Republican presidential nomination in the summer of 1916, the Republican minority in the Senate could hardly obstruct Woodrow Wilson’s decision to replace him with John Clarke. John Tyler and Millard Fillmore had little luck getting late-term nominations confirmed by a hostile Senate, though Grover Cleveland was able to get Melville Fuller confirmed as chief justice by a narrowly divided Senate in the summer of an election year.”
Presidential Authority vs. Experience
In Liberia, the debate over whether President Weah deserves a right or have the legal authority to nominate a replacement for an ailing member of the bench may largely depend on president Weah’s Attorney General experience for the job and less likely on whether or not the President has the legal authority to nominate during the lame duck period of his presidency.
For now, any potential argument, according to Cllr. Gongloe, must begin and end with provisions of the 1986 Constitution that are responsible for the long-time lag between the time the elections are over and the time the incoming President takes office. More importantly, whether a lame duck President is justified in nominating someone to the high court bench.
Article 83(a) of the Constitution. States: “Voting for the President, Vice President, members of the Senate and members of the House of Representatives shall be conducted throughout the Republic on the second Tuesday in October of each election year.”[2] Then article 50 of the Constitution says, inter alia “…The president shall be elected by universal adult suffrage of registered voters in the Republic and shall hold office for a term of six years commencing at noon on the third working Monday in January of the year immediately following the elections.”
According to Cllr. Gongloe, the President’s election is known, not on election day but on the day that the result of the presidential election is announced by the National Elections Commission. “Future improvements in the electoral process could enable the NEC to declare the result of a presidential election on the same day. But this is not the situation today. According to article 83 c) of the Constitution.”
For the immediate future, it appears that the arguments for and against Cllr. Dean’s nomination may hinge either on his capability and experience or whether members of the Senate Judiciary Committee will have the last say in determining his fate as the court of public opinion debates his future.