Rule By The Law: A Statement On The Recent Decision Of The Ecowas Community Court Of Justice


Human Rights Lawyer and Legal Consultant of the Liberia Law Society, Attorney-at-Law Samuel Kofi Woods, II has declared the decision of the ECOWAS COURT regarding the case of Associate Justice Kabineh Mohammed J’aneh as HISTORIC AND MOMENTOUS: A TRIUMP FOR THE RULE OF LAW AND HUMAN RIGHTS. Attorney Woods who just returned from Abuja, Nigeria from the ECOWAS Court hailed the Law Society, Lawyers, civil society, Liberians and many others for supporting the search for justice.

On 10th November, 2020, the Government of Liberia received a rebuke from the ECOWAS Community Court of Justice. The 73-page Opinion of the regional court is uncomplicated in its reasoning and instructive in the basic principles of human rights. No doubt, Associate Justice Kabineh Muhammad Ja’neh won – that the Government of Liberia lost cannot be in dispute. However, to simply assess winners and losers out of the sub-regional reprove, is to distract from the more troubling implications of the ruling.

The Associate Justice had complained to the regional court that his removal violated his human rights to fair hearing, to an impartial trial, to work, and to the dignity of his person, all of which are guaranteed by the African Charter on Human and Peoples Rights as well as the Universal Declaration of Human Rights, international instruments to which Liberia is signatory, and are summarily prescribed under Chapter III of the Liberian Constitution. He claimed that his impeachment, trial, conviction, removal from office and replacement violated the Liberian Cconstitution, and further alleged that the Liberian Government “subjected him to impeachment proceedings with no Prescribed Rules of Procedure” thereby undermining his right to a fair hearing.

The Government of Liberia essentially contended that Ja’neh’s impeachment and removal were “political”, and that the regional court could not review the decisions of a national authority because doing so would grant onto the regional court the authority of appellate jurisdiction which it did not possess over national courts.

The Ecowas Court of Justice disagreed with the Liberian Government and held that its jurisdiction extended to a review of the claims of citizens of the ECOWAS community insofar as such claims concern the violation of human rights which is not necessarily measured by the rejection of an accused but by the weight of the claims of an accuser. Siding with the Associate Justice, the court directed his reinstatement and the payment of reparation for “moral prejudice suffered”.

The Liberian Government, as a signatory to the ECOWAS TREATY and the Protocol establishing the Court as well as the several international legal instruments is duty-bound to comply fully with the ruling of the Court. Any decision and/or posture to disregard the ruling of the regional court can only serve to further convince all that the Liberian Government conducts itself in the unenviable darkness of lawlessness.

It is bliss of ignorance not to acknowledge that on trial in the regional court was the Liberian Government’s commitment to the rule of law, good governance and its dedication to respect human rights. Therefore, by ruling in favor of the Associate Justice, the regional court actually found the Liberian Government to be wanting in its commitment to the rule of law, to the principles of good governance, and to the protections of the basic human rights, of not only a Liberian citizen, but also a high court judge who should be immuned from the threats of political recriminations for judicial decisions. Such immunity provides judicial officials assurances for much-needed judicial independence and courage in the award of fair and impartial decisions. The Liberian Constitution under Article 73 thereof, also provides this insulation for judges.

Indeed, the ECOWAS Court of Justice will not ordinarily speak in such direct terms. They ought not to be expected to.  But Liberians, and especially our leaders, are wise to wake up to what was not respectfully said by the Court so as to fully understand, and look to correct, what was silently expressed about the irrepressible duties we share, to treat each other consistent with the Liberian Constitution and international laws, under whose authority we exist, and are recognized to exist, as a free and independent nation.

Irrespective of differences, all Liberians should find the ECOWAS Court’s Decision concerning. Especially in its call for Justice Ja’neh’s reinstatement, the regional court effectively nullified, voided and repudiated the illegal impeachment and removal of the judge.

After the recent tragedy of our implosion, the harshness of which is still impressed on the psyche of the nation; how can the leaders of the country be investing time, resources and the capacities of their leadership into admitted political maneuvers? How can the Liberian Government be involved in the denial of the basic rights of a citizen, as well as risk undermining the integrity of the country’s justice system in the exposure of judges to political recriminations for judicial actions, and as determined, violate the Liberian Constitution and related international conventions on fundamental human rights? 

Why must it befall a regional court to point us to the need to respect, uphold and protect our Constitution and international covenants especially in the protection of rights and commitments to the rule of law? How can we, again, be knowingly doing this to ourselves? What impression is conveyed about our country when the three Branches of our government were found to have been engaged in an illegal impeachment of a judge, thereby violating his fundamental rights?

Given that the basis for the appointment of Associate Justice Ja’neh’s replacement to the Bench of the Liberian Supreme Court has been regionally determined to be illegal, and that Liberia recognizes the authority of the ECOWAS Community Court of Justice; can any opinion, judgment or instruction of the Liberian Supreme Court which bears the signature of the replacement justice be considered legal?

The West African Court of Justice also found that Associate Justice Ja’neh suffered “moral prejudice” in the violation of his rights for which he has been awarded reparation of US$200,000 (Two Hundred Thousand). ‘Moral Prejudice’ is suffered as a result of “the admission of evidence of bad character showing the accused to be a morally bad person and leading the trier of fact to conclude that he is guilty” (Encyclopedia of Canadian Laws). The regional court found that Justice Ja’neh was made to suffer prejudicial and deceptive characterizations by the Liberian Government, only to secure a guilty verdict in pursuit of the illegal ends of Ja’neh’s impeachment and his removal from office.

This is embarrassing!

Hopefully, it will compel a serious rethink about the current direction of the country. No government can succeed, and no nation can long endure in peace and security, where leaders blind themselves to the basic requirements of justice for all. A society is doomed when its leaders are motivated by prejudice, and rather than uniting the people, invest in their division, threaten political recriminations, and lead by fear. Prejudice, they say, blinds the vision of men, and a divided house will not stand. It is also true that leading by fear purchases neither truth, loyalty nor security.

It is wrong to think that Ecowas judges are more learned in the doctrines and principles of natural justice and the rule of law than their Liberian counterparts. It is also wrong to believe that Ecowas Court’s judgments should necessarily be required to instruct Liberia in the pursuit of equality of all persons before the law. No regional or international court ought to be required to remind administrations of Liberia’s Government of its sacred responsibility to ensure no governmental action extends to compromising the fundamental guarantees of the protection of the rights of  all citizens.

However, that which appears to be increasingly distinguishing Ecowas judges can be found in the growing courage of the regional court to say what the law is, even in the face of the decisions of some national governments not to comply with its judgments. Little wonder therefore that a host of West African citizens are queuing up at the doors of the Ecowas Community Court of Justice to seek rights denied them in their own countries.

As good as this judicial mechanism is for the region, it must also seriously concern governments of the subregion, including the Liberian Government. Simply put, the run to the Ecowas Court of Justice testifies to an erosion of public confidence in the sworn commitments of national governments to deliver justice to their citizens.

It was recently reported that the Collaborating Political Parties (CPP) of Liberia are poised to petition the Ecowas Court of Justice on the recent declination of the Supreme Court to even hear its Petition for the Issuance of a Writ of Mandamus on the National Elections Commission (NEC) to clean-up the Voters’ Roll. This is despite the fact that the clean-up was instructed by the Supreme Court in 2017, passed by the Legislature and signed into law by the President in June of 2020, and recommended by the Technical Support Team of Ecowas in 2017.

All Liberians should salute Associate Justice Ja’neh for the fortitude to pursue the violation of his rights to the Ecowas Court. Had he not done so, notwithstanding the constitutional protection for judges in the performance of their duties, a dangerous precedent would have been established in the illegal impeachment of judges for judicial actions. It should also be noted that not many citizens who feel similarly aggrieved, and are being denied rights and privileges to which they are  justly and equally entitled as citizens, have the means to place their grievances before the Ecowas Court of Justice for redress.

Here, for instance, we cannot ignore the continued denial of the License of PUNCH FM to operate, and the recent ruling of the Liberian Supreme Court to suspend the License of Attorney Isaac W. Jackson. Since 2018, PUNCH FM/TV has been prohibited from broadcasting even after meeting all of the requirements and after acquiring a Declaratory Judgment from the Civil Law Court. The Liberian Government appealed the Lower Court’s decision in favor of PUNCH FM/TV to the Supreme Court, where it now sits indeterminably.

In a rather strange twist of justice, in the bundled ruling against Attorney Jackson, the accuser became the judge, jury and executioner. Even worse for the integrity of the courts, it self-censured into agreeable silence, and effectively countenanced the public refusal of the Executive to obey the instructions of the Honorable Supreme Court to issue the Representative of the Liberian Government to the International Maritime Organization and his family diplomatic passports to which they are legally entitled.

Other cases involving Freedom of the Press like that of ROOTS FM, neglect of rape cases and victims, mysterious deaths especially of auditors said to be associated with the discovery of discrepancies and mismanagement of public funds, the inconclusive and irresponsible attitude towards the implementation of the TRC Report, and many others involving the plight of the poor will be addressed. Let this serve as a notice to end the indifference, obvious lack of leadership, and irresponsible posture regarding our commitment to the rule of law, respect for human rights, and accountability in the country.

Many of these vexing grievances may never reach the docket of the regional court. However, these wrongs challenge the values and conscience of our society and alter the definition of our commitments to each other. Liberia ought to not require any regional court to enable our conscionable determination of wrong in the denial of any citizen’s the right and privilege, to which s/he is equally entitled, on account of personal and or political disagreements, with the political leadership of the country. We have reasons to know better!

We have reasons to know that discriminatory application of the law is injustice. The higher duty of governments is not to seek to settle personal scores nor should it be concerned with lowering the authority granted by the people to appeasing the bruised egos of leaders. When the governing agencies and democratic institutions of a State voluntarily or involuntarily lends itself to the pursuits of such personal interests, they dangerously lend their public offices to eroding the democratic health of the nation. In the special case of Liberia, such actions can only serve to further mire the already fractured Liberian society into unnecessary anger and unforgiving bitterness, none of which will pull the Liberian nation into the needed unity we seek for the development of our country.

It is time to stop the irresponsible justification that a wrong yesterday can somehow be righted by repeating it today. Societies do not advance by repeating wrongs! Nations progress by the courage of succeeding leaderships and generations to right past wrongs. Continued decadence assuredly awaits societies who fail to learn from the past, and will themselves into a repeat of historic wrongs.

And so, 173 years after we announced ourselves a free and independent nation, promising ourselves and the world that we would be dedicated to democratic self-governance, to be instructed by an Ecowas Court, to do the right things in the protection of rights, liberties and privileges of a Liberian citizen; it must smack our country, as a damning failure of leadership, as it presents both a national shame and an international disgrace.

Finally, we congratulate all who associated with and contributed to this landmark decision of the regional court including the LAW Society which also conducted series of awareness workshops  to enlighten Liberians about the value addition of the Ecowas Court to deal with abdication and denials at home. We warmly celebrate the Liberian people for this moral and legal victory, and the guided message that no wrong – no evil – will triumph.