As I See It

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BACKGROUND

AS I stayed in Nigeria receiving medical treatment, I read an article on social media entitled: “Liberia: Mandingo Youths accuse Chief Justice of….”

Then I returned to Monrovia and heard on a local radio station, Truth FM Radio, Talk Show with an invited studio guest who stated that the Chief Justice, His Honor Francis S. Korkpor, Sr., hates Mandingo People. This studio guest stated that to show his dislike for Mandingo people, the Chief Justice has encroached upon and illegally taken over the lands of Mandingo people in Ganta City, Nimba County, Liberia.

The Chief Justice has also been accused of being responsible for the removal of Justice Kabineh M. Ja’neh from the Supreme Court of Liberia as an Associate Justice.

Upon hearing this, I decided to approach the Chief Justice and ask if he was aware of the accusations being levied against him on the radio by a studio guest and on social media, YouTube. He acknowledged having heard these comments about him but denied the truthfulness of the allegations.

DISCUSSIONS AND ANALYSIS

I have taken the liberty of composing this write-up by way trying to analyze the criticisms against the Chief Justice and laying the matter bare before the grneral public for their consumption and digestion..

Firstly, the Chief Justice, like other judicial functionaries, does not have the benefit and unfettered freedom to vindicate himself as would an ordinary citizen or a non-judicial actor. Secondly, in a case like this under ordinary circumstances, persons who are subject of slanderous unprovoked attacks on their person, their character and reputation and their profession have adequate remedy at law but in this case, were the Chief Justice to opt for legal action, there would be diverse views and varying opinions and many versions of the criticism. The obvious comment

would be that the Chief Justice, as head of the Judiciary and being plaintiff in a case in any of the trial courts would subject the trial judge(s) to indirect pressure to make ruling in his favor as their boss. That perception would overshadow and perhaps outweigh the legal merits in the suit. So an Action at law may not be the preferred course of action available to the Chief Justice.

I have determined that the genesis of these criticisms or allegations against the Chief Justice really stems from the impeachment of Justice Ja’neh and that this is a reaction from those persons who are opposed to his removal from the Supreme Court as an Associate Justice. I, however, do not go so far as to accuse Justice Ja’neh of being behind this scandalous and vilifying campaign and unprovoked assault on the character and personality of Chief Justice Korkpor.

I found that all these accusations arose only after the impeachment of Justice Ja’neh was being considered and pursued. First, there were those who felt that the Chief Justice should not have presided over the impeachment trial at the Liberian Senate. Second, there were those who determined that the Chief Justice should have taken steps to help Justice Ja’neh in the cases that were filed before the Supreme Court, first by Justice Ja’neh by way of a Writ of Prohibition to stop the House of Representatives from examining the complaint of Representatives Acarous Gray and Thomas, and then by four Senators against the amendment of Senate Rule #63.

In order to fully appreciate the situation, I shall endeavor to study or review the events that surrounded the impeachment of Justice Ja’neh and the aftermath and ramifications thereof. This review shall look at what actually happened and what should have been done or what could have been done in all the circumstances. This review shall therefore focus on the following areas:

  1. PROHIBITION FILED BY JUSTICE JA’NEH
  2. CASE FILED BY THE SENATORS
  3. BILL OF IMPEACHMENT IN THE HOUSE OF REPRESENTATIVES
  4. IMPEACHMENT TRIAL IN THE LIBERIAN SENATE

First, I shall look at the cases which were filed before the Supreme Court; and then we shall look at what transpired at the Capitol Building.

  1. PROHIBITION FILED BY JUSTICE JA’NEH

Two Members of the House of Representatives, namely, Hon. Acarous Moses Gray and Hon. Thomas Fallah of Montserrado County filed a written complaint to the Plenary of the House of Representatives against Justice Ja’neh proposing that he be impeached. The complaint of these two law makers was duly tabled and a committee was set up and mandated to study the complaint and report back to Plenary of the House at a later date.

While this committee was out studying the complaint of the two Representatives, Justice Ja’neh, by and thru his legal counsel, Cllr. James E. Pierre and Arthur T. Johnson, filed a Petition for a Writ of Prohibition praying the Supreme Court to restrain and prohibit the House of Representatives from proceeding any further with the complaint of the two law makers. The House did not appear but instead continued with their investigation into the complaint of the two law makers.

Since Justice Ja’neh filed the case, he could not sit. The four members of the Court who heard the case were evenly split two-to-two and so the Court had to appoint a Circuit Judge as an Ad-hoc Justice for the purpose breaking the tie; thus the Court handed down a majority (split) decision dismissing the Prohibition proceedings. The Supreme Court held in the majority Opinion that the Prohibition was premature in that the House of Representatives had not, up to that point, done anything wrong that warranted the issuance of the Writ of Prohibition.

Coming back to this review or analysis, the critics have accused the Chief Justice of not helping Justice Ja’neh.  The question is, what should the Chief Justice have done? Should he have done other than what he did? The Supreme Court determined that the House of Representatives had not done anything to warrant the issuance of the Writ of Prohibition. Was that true?

As I see it, I venture to say that the Supreme Court deserves commendation for exemplifying their strength, independence and impartiality when they denied the Petition of one of themselves, in the person of Justice Ja’neh. I believe it showed boldness and character for them to have ruled against their own; that should send out a message loud and clear to the public at large that the Supreme Court is indeed independent in their thought and action. I salute the Supreme Court for that stance signifying that even a Justice of the Court would not enjoy any special treatment.

Let us examine the sequence of events. The two law makers filed a complaint before the Plenary of the House and that complaint was referred to a committee to study and report back to the Plenary. What was there to be prohibited? Can/could the Supreme Court have prevented the House from investigating a complaint the House had received? Is it or is it not part of the functions of the House to receive petitions and complaints and act on them? In this instant case, could the Supreme Court have stopped the House from performing its constitutional duty? Would that not have amounted to interference by one Branch of the Government into the affairs of another Branch of Government? Article 3 of the 1986 Constitution specifically forbids interference by one Branch into the affairs of another.

For emphasis, I wish to quote the relevant provision: “The form of government is Republican with three separate coordinate branches: the Legislative, the Executive and the Judiciary. Consistent with the principles of separation of powers and checks and balances, no person holding office in one of these branches shall hold office in or exercise any of the powers assigned to either of the other two branches…”

  1. CASE FILED BY THE SENATORS

The case was filed by four Senators, namely, Commany B. Wesseh, Daniel Naathen, Milton Teahjay, and Oscar Cooper, all of the Capitol Building, Monrovia, Liberia.  as Petitioners, by and thru their legal counsel, Cllr. Tiawan S. Gongloe and Cllr. Momolu G. Kandakai.

It is observed that the Respondent sued by these four Petitioners was not the Liberian Senate as a body but, rather, the persons were sued in their individual and personal capacities. The named Respondents are: Senators Saah H. Joseph, Jonathan Kaipay, J. Gbleh-bo Brown, H. Dan Morias, Varney G. Sherman, A. Marshall Dennis, G. Alphonso Gaye, Prince Y. Johnson, Thomas Grupee, Henry Yallah, Henrique Tokpa, George T. tengbeh, Morris G. Saytumah, Sando Dazoe Johnson, Albert T. Chie, Peter S. Coleman, Jim Tornonlah, Dallas A.V. Gueh, Matthew Jaye, all of the Capitol Building, Monrovia, Liberia.

The Respondents filed their Returns/responsive pleading raising several legal issues and prayed the Supreme Court to strike out or dismiss the suit.

First, the Respondents contended that the wrong parties Respondents were sued in that they were sued in their personal and individual capacities, in violation of the constitutional provision that members of the Legislature cannot be held liable or accountable for their actions done, performed or committed while performing their official duties. Article 42 of the 1986 Constitution. Further to this, the Respondents contended that the Supreme Court cannot exercise original jurisdiction over the persons of the Respondents because the named Respondents are not ambassadors, ministers and there being no county named as a Respondent.

Secondly, the Respondents contended that a person cannot be party to a case as both plaintiff and defendant in the sane case at the same time. In other words, a person can be either, plaintiff or defendant, but not both plaintiff and defendant at the same time in the same case.

Thirdly, the Respondents contended that the Petitioners have not established that they had standing to sue because they had not demonstrated that they were in any way injured, threatened, or otherwise prejudiced by the amendment of Senate Standing Rule 63.

The Petitioners apparently realized that they had made a serious mistake by suing the Respondent Senators in their personal capacities as individual Senators and not the Liberian Senate as a body, and thus the Petitioners filed a Motion for Joinder praying the Supreme Court to allow them to join the Liberian Senate as a body. The Petitioners stated in count one of their Motion that the Petitioners had inadvertently omitted to name the Liberian Senate as a necessary and indispensable party Respondent in order to ensure complete and adequate relief.

In response to this Motion for Joinder, the Respondents filed their Resistance objecting to the Supreme Court entertaining the Motion. The Respondents contended that the Liberian Senate as a body was not a necessary or indispensable party to the Supreme Court determining the constitutionality of the amendment of Senate Standing Rule 63. The Respondents also contended that by adding the Liberian Senate, the Petitioners/Movants would be making the Senate to appear as both Petitioner and Respondent in the self- same one suit, which is not permissible under our Civil Procedure Law; they argued that a person cannot appear in dual capacities, that is, the person can be only a plaintiff or a defendant but not both.

The Supreme Court consolidated both the Motion for Joinder and the main petition challenging the constitutionality of the amendment of Senate Standing Rule 63, and had one consolidated hearing. The Court entertained arguments pro et con and ruled dismissing the case for lack of jurisdiction over the persons of the named Respondents. The Court also denied the Motion on ground that a Motion for Joinder is properly cognizable in all courts except the Supreme Court.

Secondly the Supreme Court ruled that the Petitioners realized that they made a mistake by suing the Respondents personally and in their individual capacities and not as a body, but compounded their error or inadvertence by filing a Motion for Joinder instead of withdrawing their Petition and amending and re-filing same.

Thirdly, the Supreme Court held that it was a serious error for the Petitioners to have filed an action which has the obvious intent of seeking to prevent the Liberian Senate from pursuing a course of action but failing to name the said Liberian Senate as a necessary party.

Fourthly, the Supreme Court ruled that the Constitution provides a privilege for Members of the Legislature in the performance of their legislative duties, and thus they cannot be held liable or accountable for their actions or decisions taken in the performance of their official duties. Therefore, the Court held that the persons named as Respondents in the Petition were wrongly sued and the Court refused jurisdiction over their persons and dismissed the Petition.

The Supreme Court finally held that its authority of Judicial Review of the constitutionality of Acts/Statutes passed by the Legislature does not also include or extend to the Senate’s internal rules because same is a constitutional grant to said body and not reviewable by the Supreme Court by virtue of Article 3 of the Constitution on the principle of separation of powers.

Coming back to this review, the purpose of this write-up, the critics have accused the Chief Justice of not helping Justice Ja’neh, but the question  is, what could or should the Chief Justice have done to help these Senators, who were indeed working to prevent the impeachment of Justice Ja’neh?

As I see it, the short answer to this question is, NOTHING. There was nothing the Chief Justice could do because this was a question of law, and the issue was too clear to do otherwise; plus, the Court had decided by a majority decision, which

the Chief Justice could not overturn. The alternative was for the Supreme Court to circumvent the law in aide of a member. This would not be right.

  1. BILL OF IMPEACHMENT IN THE HOUSE OF REPRESENTATIVES

The House of Representatives had received a complaint from two of its Members, which complaint was reviewed / studied by a committee and recommended for action. A Bill of Impeachment was drawn up by the House and served on the

accused, Justice Ja’neh and forwarded to the Senate for trial. It is provided: “The power to prepare a bill of impeachment is vested solely in the House of Representatives, and the power to try all impeachments is vested solely in the Senate.”

At that point, and even beyond, as I see it, there was no role to be played by the Chief Justice in terms of drawing up the Bill of Impeachment by the House and forwarding it to the Senate. Therefore, it is safe to conclude that any accusations against the Chief Justice in this regard are completely baseless and without merit, and also without knowledge of the above quoted provision of the law which excuses no man.

  1. IMPEACHMENT TRIAL IN THE LIBERIAN SENATE

When the Bill of Impeachment was received by the Liberian Senate, the Senate became seized of it and contacted the Chief Justice. The 1986 Constitution of Liberia at Article 43 provides that whenever an Associate Justice is subject to impeachment, the Chief Justice shall preside. The House of Representatives is the accuser or the prosecutor while the Senators are the triers of fact or the Jurors.

When the case was called for trial, lawyers representing Justice Ja’neh filed a motion requesting the Chief Justice to recuse himself and refuse to preside. The House of Representatives obviously resisted the motion and the Chief Justice, presiding, ruled denying the motion because it was contrary to law, the Constitution.

 Coming back to our review or analysis, the critics accuse the Chief Justice of failing or refusing to help Justice Ja’neh. As usual, the question is, what did these critics expect the Chief Justice to do? How could he have helped the situation?

As I see it, the duty of the Chief Justice to preside over trials where an Associate Justice is facing impeachment is not discretional but mandatorily imposed by the Constitution. It is provided: “when the President, Vice President or an Associate Justice is to be tried, the Chief Justice shall preside;…” (emphasis mine). Article 43.

This provision does not make any exception nor give the Chief Justice any discretion. As I see it, the Chief Justice would have been in grave error had he refused to preside over the trial of Justice Ja’neh.  In fact, I venture to say, and I stand to be corrected, that if the Chief Justice had refused to preside his refusal would have equally amounted to an impeachable offense against himself.

The Constitution, in Article 71, lists the following as grounds for impeachment of the Chief Justice and Associate Justices of the Supreme Court   of Liberia and Judges of subordinate Courts of record:

  1. Proved Misconduct
  2. Gross Breach of Duty
  3. Inability to Perform
  4. Or conviction in a court of law  for treason, bribery o other infamous crime

As I see it, with utmost humility, I submit that the failure or refusal of the Chief Justice to have presided over Justice Ja’neh’s trial would have been in violation of the constitutional provisions on Gross Breach of Duty and Inability to Perform, which are impeachable offenses.

More besides, I further submit that the fact that the Chief Justice and Justice Ja’neh both hail from Nimba County as claimed by the critics of the Chief Justice is totally irrelevant as a consideration for refusal of the Chief Justice to preside over the trial of Justice Ja’neh. In my humble view, there was absolutely no reason, whether legal, moral or otherwise for the Chief Justice to have even considered refusing to preside.

As I see it, the criticism against the Chief Justice that his presiding over Justice Ja’neh’s trial is an indication of his dislike for Mandingo people is so myopic and incomprehensible. That leaves much to be desired. It must be borne in mind that the Chief Justice took an oath to preserve, protect and defend the Constitution and laws of the Republic. See Article 70.  I respectfully submit that the Chief Justice

presiding over that trial was merely in obedience to and in fulfillment of his sacred obligation undertaken.  

CONCLUSION

As I see it, there remains one lingering question to ponder: what is the ultimate objective of the critics of the Chief Justice in their vicious and slanderous assault/campaign?

The Chief Justice has been accused of hating or not liking Mandingo people and because of this dislike, he even master-minded the impeachment and removal of Justice Ja’neh from the Supreme Court. Following that line of reasoning, is it their goal to ensure and insist on the removal of the Chief Justice as well? Meaning that if a Mandingo man cannot be on the Supreme Court then likewise no Mano man (the Chief Justice’s tribe) should also be there? This, however, is a flimsy position to espouse  because it has been defeated by the nomination, confirmation, appointment, commissioning and seating of His Honor Mr. Justice Yussif D. Kaba as Associate Justice of the Supreme Court of Liberia.

Whether or not the Chief Justice is impeached and removed from the Supreme Court, is it their motive and objective to disgrace, embarrass and humiliate him as a pay-back for the removal of Justice Ja’neh, since he is accused of master-minding said removal?

As I see it, and if  my conclusion is wrong that the attacks and assault against the Chief Justice are unprovoked, baseless, knowingly untrue, and merely intended to hurt the Chief Justice in his character and hard-earned reputation, then I throw out an open challenge to those critics to come forward with any evidence they may have and o produce same to the public and thereby prove their accusation that the Chief Justice hates Mandingo people and that he has encroached upon and illegally and wrongfully taken over real properties/lands  owned by Mandingo people in Ganta City, Nimba County.

I stand on my challenge because the Chief Justice has assured me and categorically and unconditionally denied engaging in the conducts of which he has been accused, and I have no reason to doubt his sincerity and the truthfulness of his response to me.

Therefore, Messrs. Critics, we are awaiting your evidence.

But I encourage and say to His Honor the Chief Justice, do not be dissuaded and become weary in well-doing because you will reap your reward if you faint not.

GOD BLESS US ALL AND SAVE LIBERIA.

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