Liberia: A Divided High Court Bench Mired In Impeachment Saga
Monrovia – All is not well on the high court bench. In the midst of a grueling saga to impeach one of its own, Liberia’s Supreme Court finds itself fighting an internal wrangle amid multiple reports of a long-running feud between the Chief Justice Francis Korkpor and one of his associates, Kabineh J’aneh amid suspicions over loyalty and whether the Chief Justice will hear a case from the legislative branch of government which disrespected the bench’s motion for prohibition filed against impeachment proceedings by the House of Representatives.
Report by Rodney D. Sieh, [email protected]
Last week, the Supreme Court summoned the leadership of the House of Representatives to a hearing on the writ of prohibition filed on behalf of Associate Justice Ja’neh against his impeachment by the Lower House.
In the citation, Associate Justice Ja’neh petitioner versus the honorable House of Representatives of the National Legislature by and thru its Speaker Bhofal Chambers respondent in the petition for the writ of prohibition,” the high court wrote: “By directive of the Full Bench of the Supreme Court of the Republic of Liberia you are hereby mandated to file your brief in the above-captioned case on or before the end of the workday on Tuesday, August 21, 2018, signed Atty. Sam Mamulu Clerk Supreme Court.”
The writ of prohibition was filed by Cllr. Arthur Johnson along with four other lawyers against the pending bill of impeachment sent to the House by lawmakers of Montserrado County Acarous Moses Gray(CDC, Montserrado County District No. 8) and Thomas Fallah(CDC, Montserrado County District No. 5) both of the ruling Coalition for Democratic Change (CDC).
Genesis of a Saga
The two lawmakers’ bill of impeachment, accuses Associate Justice Ja’neh of proven misconduct, abuse of public office, wanton abuse of judicial discretion, fraud, misuse of power and corruption.
Associate Justice J’aneh’s accusers claim that he “abused power” by forcefully seizing a plot of land belonging to Mrs. Annie Constance, a 90-year-old woman.
The current Associate Justice who was then a private citizen reportedly purchased the land in 1997 from the late Mr. Nyema Constance, Jr.
The property, according to lawyers representing Associate Justice J’aneh, was previously owned by the deceased father of the seller, Mr. Nyema Constance, Sr. who has issued Letters of Administration by Jehu Striker, then Judge of the Monthly and Probate Court of Montserrado County in the 1960s.
Following the death of Mr. Nyema Constance, Sr., the same court in 1996 under Judge John Greaves issued Letters of Administration to Constance Jr., with a mandate to sell and dispose of any property of the Intestate Estate of his late father J. Nyema Constance Sr., including the disputed 0.54 lot of land.
When Nyema Constance, Jr. died in 1998, his mother, Annie took issue over the sale which is now front and center the burning issue of the ongoing dispute regarding the Associate Justice’s impeachment proceedings by the lower house.
Cllr. Cooper Kruah, representing the legal interest of the Associate Justice is now the Minister of Post & Telecommunications. It was Kruah who initially contacted the 90-year-old regarding the issue of the disputed land.
Judge Boima Kontoe ruled in favor of J’aneh on the matter but Mrs. Constance Lawyer took exception and announced an appeal before the Supreme Court.
In October 2013, almost six months later, Cllr. Kruah obtained a clerk’s certificate that after the filing of the exception, Cllr. Lawrence Yeakula, lawyer for the 90-year-old, reportedly failed to perfect the appeal.
On December 2, 2013, Cllr. Kruah filed an appeal before the Supreme Court to dismiss Cllr. Yeakula’s appeal; the court ruled in October 2017, in consonance with the law. The Supreme Court gave its opinion on October 12, 2017, which judgment mandated then Judge Boima Kontoe to enforce it (opinion) by evicting Mrs. Constance and her children.
J’aneh, due to his personal interest in the case, did not sit on the hearing and did not sign on the document, thus recusing himself. The document was signed by the Chief Justice Francis Korkpor and Associate Justices Sie-A-Nyene Yuoh, Jamesetta Howard Wolokillie and Philip A.Z. Banks, III.
Four other Justices, including Chief Justice Francis Korkpor, signed the ruling dated October 24, 2017 and read: “The Motion To Dismiss the appeal is hereby granted, and Yeakula’s appeal is dismissed,” adding, “the Clerk of Court is hereby ordered to send a Mandate to the Civil Law Court, mandating the Judge presiding there to resume jurisdiction over this case and give effect to this judgment.”
Last week, Cllr. Johnson and the four other lawyers rejected the impeachment and counter-argued that the Constitution of Liberia confers jurisdiction on the House of Representatives to initiate impeachment proceeding but that should not be done with the violation of any constitutional provisions with specific and particular references to Article (20) (a) 71 and 73.
Last week’s summons was only the second time a citation from the Supreme Court was sent to the leadership of the House over the writ of prohibition against the pending impeachment proceeding.
The first was by Justice-In-Chamber Sie-Nyene- Youh ordering the lawmakers to pause the impeachment process and appear before her on August 18, 2018, at the hour of 9:00. In that filing, lawmakers rejected the order, citing Article 43 of the Constitution, which outlines separation of power among the three branches of government.
Once again, last Thursday, the members of the 54th House of Representatives responded with hostility, trashing the high court’s writ of prohibition and threatening more vigor in the impeachment proceedings of Associate Justice Ja’neh.
Members of the House of Representatives, while in session, unanimously agreed not to appear before the Supreme Court bench to answer to questions on their decision to impeach Associate Justice Ja’neh.
Representative Gray countered that any attempt for the House to subject itself to a writ of prohibition issued them by the Supreme Court will not be doing justice to them.
The lawmaker noted that the action of the justice in chamber is a calculated attempt to usurp their functions as the people’s representatives and further added that the decision of the Supreme Court to issue them a writ of prohibition and invite them is tantamount to creating a tyrannical branch of government. Representative Gray stressed that they as members of the House of Representatives will not allow any member of the House, not to mention the Speaker Dr. Bhofal Chambers, to appear before the Supreme Court.
Bench Divided Over Respect
This is where the bench appears to be divided. Some believe that the lower house was disrespectful in not responding favorably to their summons and many legal analysts see a full-blown constitutional crisis on the horizon.
The lawmakers’ refusal to honor the Supreme Court citation, some say, could lead the high court with no other alternative but to render judgment.
Cllr. Gloria Musu Scott, a former Chief Justice, weighing on the issue recently, expressed the hope that at the end of the day the Constitution will prevail and “not only the narrow interpretation but the spirit and intent on the provision of the constitution”.
The former Chief Justice averred: “The Supreme Court or Judiciary is not to be flamboyant, reserved, set apart – it is taken out of political issues and the check and balance here are that the Legislature comes up with the law, Judiciary interprets the law, and the executive enforces the law.”
The ongoing debacle comes amid a temporary vacancy on the bench following the retirement of Cllr. Philip A.Z. Banks, who stepped down after reaching the age of 70.
The court consists of the Chief Justice, who is also the top Judiciary official, and four Associate Justices, who are nominated by the President and confirmed by the Senate.
The Supreme Court is granted original jurisdiction over constitutional questions, cases in which the country is a party, and for cases where ministers or ambassadors are involved by the constitution. The current Associate judges of the Supreme Court are Sie-A-Nyene Yuoh, Kabineh J’aneh, Jamesetta Howard Wolokillie and Philip A.Z. Banks, III.
Nagbe Has Until Oct. Term to Sit
President Weah recently appointed former Sinoe County Senator Joseph Nagbe to fill the void left by Banks. However, Nagbe, although confirmed by the Senate cannot preside on a case until the start of the October term of court, per court rules.
Under court rules, any three members of the five can form a quorum and when agreement is not arrived by the quorum in any case, the President of Liberia appoints an ad-hoc judge from the circuit judges based on seniority.
Article 71 of the constitution states: The Chief Justice and the Associate Justices of the Supreme Court and the judges of subordinate courts of record shall hold office during good behavior. They may be removed upon impeachment and conviction by the Legislature based on proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery or other infamous crimes.
Mr. Abraham Darius Dillon, head of political affairs of the opposition Liberty Party said this week that the road to impeachment is still long but narrow. “What the House did yesterday was simply to “prepare” a bill of impeachment. A bill of impeachment contains allegation/s against an accused person that must be proven at a trial (in the Senate). Due Process is required. The person must be guaranteed the right to a lawyer or team of lawyers of his choice. Appropriate legal notices must be served. The accused person must be acquainted with and presented the allegations being brought against him so as to be able to properly defend himself. The accused person must enjoy the rights to present witnesses in his defence, etc. In short, all the requirements that constitute due process must be followed; only then, judgment (conviction or acquittal) from said hearing would be credible. So, let us get it straight; the House of Representatives has not “finally impeached” Justice Kabineh Ja’neh as is being spread around by some folks. It is the Senate that can actually conduct an impeachment trial with authority to convict or acquit.”
Atty. Darryl Ambrose Nmah Sr., Director of the Judicial Public Information Division at the Supreme Court agrees, stating that “the constitution is clear that “no person is Impeached unless by a 2/3 majority vote of the Senate. So we cannot say the process in the HOR has resulted to Impeachment. What if there is not the require vote in the Senate? We will confuse the people if we inject things that are not in our laws. Our Constitution is so clear on this so I beg to differ that Impeachment and Indictment are analogous in this situation.”
Two-Thirds vs. Chief Justice’s Move
Finding the two-thirds may not be as easy as it seems or could prove to be just as easy – depending on how the saga unfolds in the coming days.
In Senator Varney Sherman(UP, Cape Mount) and Vice President Jewel Howard Taylor, President Weah has a strong support base from which to back up the two lawmakers from his party pushing the impeachment line.
The vice president has been working hard in the past few weeks to prove her loyalty to President Weah amid visible strains while Cllr. Sherman, who supported former vice President Joseph Boakai, has surprisingly emerged as the President’s strongest ally in the Senate.
This is where overtures to Senator Prince Y. Johnson(NUDP, Nimba) and Thomas Grupee(NUDP, Nimba) could make the difference. Out of 30 Senators, backers of Associate Justice J’aneh’s impeachment would need at least 20 Senators to seal the deal. At least one Senator, Geraldine Doe-Sheriff, who is said to be seriously ill is expected to miss the voting – should it ever happen.
For now, the Bassa belt of Senator Nyonblee Karnga Lawrence and Jonathan Kaipay(Liberty Party, Grand Bassa), as well as Senator Steve Zargo(Liberty Party, Lofa County), Senator Sando Johnson(NPP, Bomi), Senator Oscar Cooper(NPP, Margibi) are said the be the sure bets against the impeachment of Associate Justice J’aneh. That leaves the Bong County belt of Senator Henry Yalla(PUP, Bong) and new entry, Dr. Henrique Tokpah(Independent, Bong) to factor in the deciding votes.
The President’s reported overtures to Senator Johnson who is also said to be aggressively pursuing Senator Grupee to follow his path, could make the future bleak for J’aneh. But most importantly, Chief Justice Korkpor could prove to be the most important player of it all – and his next move could make the difference.
Constitutional Crisis Looming
Multiple sources privy to the existing feud between the chief justice and Associate Justice J’aneh say it has been brewing for a while but no one appear to be in the know of the whys – or at least unprepared to admit.
Here’s where things become sticky. The Senate by law cannot conduct an impeachment trial presided over by the Chief Justice, According to Article 43 of the constitution: “No person shall be impeached but by the concurrence of two-thirds of the total membership of the Senate.”
Additionally, under Section 2.7 of the Judiciary Law, “no Justice of the Supreme Court shall sit on any case in which he is interested or has made a ruling as a Justice presiding in Chambers in connection with an application for a remedial or extraordinary writ or on which he sat while a judge of a lower court.
Section 2.8. furthers that “when more than two Justices of the Supreme Court cannot sit on a pending case, the Chief Justice shall direct the Clerk of the Court to notify the President, who shall make ad hoc appointments to reconstitute a quorum from among the judges of the circuit courts.
Legal experts say, the fact that J’aneh is already recused from the proceedings and the fact that Nagbe is awaiting October Term of court to be seated, things could get murky down the road. While three out iof five members of the bench makes a quorum, if the three sitting fail to come to an agreement – and from the look of things, that seems to be the case, judges from the lower court would be needed to break the deadlock.
The billion dollar question is, would the Chief Justice be willing to preside over a process, some of his associates feel disrespected the bench? The bench has held many in contempt before over similar disregard for the highest court in the land. Whatever happens in the coming days could not only make or break Associate J’aneh’s future, but could probably pave the way for what many fear could be a full-blown constitutional crisis.