Liberia– In Aftermath of Code of Conduct Ruling; ‘Desire’ Eclipsed by ‘Due Process’ Implications


Monrovia – A controversial ruling by Liberia’s Supreme Court has opened a floodgate for current government officials flirting with the idea of participating in the upcoming presidential and legislative elections, to explore.

Rodney D. Sieh, [email protected]

Cllr. Jerome Korkoya, Chair of the National Elections Commission, in a VOA Daybreak Africa interview Thursday, acknowledged that while he does not disagree with court’s decision, he thinks the requirement of due process might not only impact the rest of the commission’s schedule but likely open a flood gate of due process complaints and appeals.

Election Extension Likely

Said Cllr. Korkoya: “I haven’t read the decision, you know, it just came out today. But from what I’m hearing, the standards that we needed for effective implementation of the code, we understand, they were set. So, if that’s true, then that would help the commission to carry out its work. But the only thing is that given the due process requirement that has been imposed, that will interfere with our schedule. We had intended starting campaign on the 31st. So, I am not too sure with this new development with respect to the due process requirement. But that’s something that I have to discuss with the rest of my colleagues”.

At issue is the controversial Code of Conduct, Section 5.1(a) in particular, which requires officials looking to seek elected positions to resign at least two years prior to the date of elections.

The law states: Any Minister, Deputy Minister, Director General, Managing Director and Superintendent appointed by the President pursuant to article 56 (a) of the Constitution and a Managing Director appointed by a Board of Directors, who desires to contest for public elective office shall resign said post at least two (2) years prior to the date of such public elections;(b) Any other official appointed by the President who holds a tenured position and desires to contest for public elective office shall resign said post three (3) years prior to the date of such public elections.”

The issue was put to test when NEC in early July rejected both the former managing director of the Forestry Development Authority(FDA), running mate to Liberty Party’s Charles Walker Brumskine and Jeremiah Sulunteh, a former Ambassador to the United States of America, running mate to Mr. Alexander Cummings, standard bearer of the Alternative National Congress(ANC) from participating in the elections.

Desire: What’s in a Word?

Both men were rejected by the NEC due to their failure to resign two years prior to the election as specified in Sections 5.1 and 5.2 of the code.

The pair through their political parties took their fight to the Supreme Court, arguing separately through their lawyers that they never desired to be running mates. Karnwea insisted that he was invited by the party and Sulunteh, towing the same line, urged the court to compel NEC to rescind its decision to reject his nomination on grounds that he too did not desire or canvass to be Vice President on the ticket of the ANC until he was approached by its standard bearer, Mr. Cummings, to be his running mate.

Referencing the Oxford Dictionary, Mr. Karnwea’s lawyer, Cllr. Powo Hilton defined “desire” as “a strong feeling of wanting to have something or wishing for something to happen”. “We want to say that Karnwea didn’t desire to be vice president for Liberty Party. We agree that the Code of Conduct is law, but it doesn’t apply to him. NEC has no authority to disqualify my client.”

NEC countered that Sulunteh had always had political intent, taking into consideration he contested as vice president on the ticket of the National Democratic Party of Liberia (NDPL) in the 2005 elections. “Appellant has always harbored a political desire; that he contested the 2005 General and Presidential Elections as Vice Presidential Candidate on the ticket of the National Democratic Party of Liberia (NDPL) confirms this fact.”

In fact, NEC went on to argue that the Vice President position is not an elective position, the NEC referenced Article 51 of the of the 1986 Constitution states: “There shall be a Vice President who shall assist the President in the discharge of his functions. The Vice President shall be elected on the same political ticket and shall serve the same term as the President.”

NEC further stated: “There is no law, constitutional and/or statutory which provides that a presidential candidate shall nominate the Vice Presidential Candidate. That is why at the National Elections Commission, both the Presidential and the Vice Presidential candidates fill in and submit separate forms.”

The court in its final opinion Thursday, read by Associate Justice Philip A. Z. Banks, III, averred that Mr. Karnwea’s violation of the of the Code of Conduct was not as grievous as alleged by the National Elections Commission (NEC). “

Associate Justice Banks opined that Mr. Karnwea should have been served a lesser punishment instead of disbarment. Associate Justice Banks concluded that Mr. Karnwea substantially complied with the CoC when he resigned after the Supreme Court upheld the CoC as law in the Selena Mappy-Polson Vs The Government of Liberia case. “NEC should have given him a less penalty than disbarment,” Justice Banks read before the jammed pack Court.

Due Process Complication

The Justices of the Court acknowledged that Karnwea violated Section 5.1 of the contentious Code of Conduct (CoC) by holding a press conference on March 14 while serving as Managing Director of the Forestry Development Agency (FDA).

He announced his resignation from the ruling party and officially joined the Liberty Party. However, they opined that his punishment should have been those spelt out in Section 5.9 of the CoC. The Supreme Court observed that the National Elections Commission did not exercise due process before disbarring Karnwea from contesting as vice president on the ticket of the Liberty Party.

“Everyone must be given an opportunity to be heard, the level of penalty should be done after the adjudication. We wonder how the NEC made the determination without conducting investigation,” Justice Banks noted.

The court disagreed over the manner in which the records were handled by the NEC, observing that “There is no record filed by NEC lawyers and everyone should be must be given due process. No one should be personally bound until he/she a day in court. NEC made serious error in that the rejection was single handedly signed by the Chairman instead of everyone on the board of commissioners.”

Karnwea: Ruling Enforces Confidence in Judiciary

The court ruled that NEC was in grave breach of the Constitution and the election law by rejecting Karnwea without due process. “Due process is mandatory and must be accepted by all legal institutions and it’s a requirement,” Justice Banks said.

Cllr. Korkoya said while the commission is not taking issues with the court, when NEC was preparing for the elections, it did not have any provision there for the kind of requirement that has been imposed with respect to the due process.

“You know, when you give due process, all the attending characteristics will require time. People may appear and then ask you that look I am not ready or my counsel is not here. So all of these requests you have to accommodate. And then you cannot grant due process and don’t abide by all of the attending conditions. I am just concerned that those kinds of activities that we must accommodate if we have to afford due process may interfere with our planning that could take us a little more further.”

On Thursday, Mr. Karnwea said the court ruling re-enforces his explicit confidence in the judiciary, and that it marks the beginning of victory for the liberty party in the October election. “I had said earlier that I had explicit confidence in the judiciary of Liberia. So, today is just the beginning of the wisdom for Liberty Party, and that we are going on to win October 10, 2017 presidential and general election.”

Sulunteh: Code ‘Discriminatory in Content’

The LP vice standard bearer rejected claims that the court’s ruling shows favoritism towards the party.

“Well, I would think they are very wrong. The Supreme Court was fair and just in its adjudication of this matter. Wherever we went wrong they pointed out.

The only thing they said was that whatever violations I may have committed doesn’t warrant denying me the opportunity to run, and that there were series of punishments and sanctions regimes in the law in choosing the most severe ones for minor violations didn’t look appropriate. That’s how I see it. It is a law that has been validated by the Supreme Court and I think we should abide by it. It is a new beginning but in subsequent elections I think this will set the standard for everybody.”

Sulunteh, for his part felt elated by the ruling.

The ANC’s vice standard bearer told FrontPageAfrica Friday: “Although this is a law, it is discriminatory in content, application and intent. This in my mind was a slap to the so-called lawmakers who crafted it, with the intent of preventing other well qualified Liberians from elected positions. This is a victory for Liberia and justice for all.”

For the immediate future, Thursday’s ruling suggests that officials who resign from government outside the two-year requirement are only subject to penalties in 5.9 and cannot be disqualified from contesting.

Section 5.9 states: “Any public official, after due process, who is found guilty of violating any provision of this section shall be immediately removed from the position or office held by him/her, and thereafter no part of the funds appropriated by any law for such position or office shall be used to pay compensation to such person.”

Ruling Opens Floodgate for Many

That interpretation means that several current officials including Gender and Development Minister Julia Duncan Cassell and Concessions Bureau Chief Ciatta Bishop who have reportedly signed up to contest legislative seats are poised to explore the window of opportunity opened by the high court in pursuit of the legislative seats. Some are reportedly telling aides that they submitted their resignations from government months ago, although it was never made public. 

The ruling aside, Thursdays’ development, according to Karnwea is a momentum boost for the party heading into the political campaign season.

“Ask the Liberian people and see the momentum that Liberty has gained over the last two months. The party has matured from two previous that it has lost, and we have also brought some level of enthusiasm to the party our following from all over the country. And if you were to ask all over the Liberia today, the whole country is jubilating because we have won. And so this shows that Liberty Party is ready; the Liberian people are ready for a change, and change for the better.” 

But even amid the celebrations that followed the high court ruling, some legal experts are having issues with the opinion handed down. Veteran lawyer and rights activist, Cllr. Tiawon Gongloe says the court crossed the line. “I think that it would have been a better position if the Supreme Court has said the line is drawn, if you did not resign, then you are not qualified it is plain and symbol the public can understand that, the public can follow.” 

Adds Cllr. Gongloe: “I have advised at least ten candidates. They did not resign two years ago and when they brought their forms to me, I told them, you are not qualified. One mayor for example came to me and said they want to run, I announced it publicly and said anyone with interest in running should just resign. If you resign even one day before your application to the National Elections Commission, according to this opinion of the Supreme Court you are in compliance with the law.”

For the foreseeable future, it appears the high court has, in one ruling, reinvented the controversial code, thereby giving a greenlight for many to contest, according to Cllr. Gongloe: “The Supreme Court itself said that desire and intent are not valid arguments when it comes to compliance.So, I was surprised in the end when the court said once you resign you are in suspended compliance. So, with that opinion, I don’t see anyone, except for those who are still in position and are still employed and all those who the public were speculating that the code of conduct will hold, will be eligible to run.”