The Liberian Peace Process: Continuing Challenges For The Future (Part I)



By Philip A. Z. Banks, III

The Perspective
Atlanta, Georgia

October 6, 2004

On August 21, 2003, more than one year and one month ago, the warring parties to the Liberian conflict selected Mr. Charles Gyude Bryant and Mr. Wesley Momo Johnson as Chairman and Vice Chairman, respectively, to head the National Transitional Government of Liberia. The new government, amongst other things, was charged with the responsibility of ensuring the scrupulous implementation of the Comprehensive Peace Agreement, executed on August 18, 2003, one week after the “resignation” of Mr. Charles Ghangay Taylor as “President of Liberia”. In these new developments, as constitutionally problematic as they were, our nation seemed primed to begin anew, to move from the relegated new characterized status of a “failed state” to a new era of statehood. We were prepared to forget that in the days prior to his “resignation”, Mr. Taylor was not constitutionally Liberia’s President since, by August 7, 2003, he had already served the full length of the six-year term prescribed by the Liberian Constitution†, and that in light of that fact the succession of Mr. Moses Z. Blah to the presidency was itself not constitutional.

The Liberian people were also prepared to blind themselves to the fact that the selection of Mr. Bryant and Mr. Johnson by the warring parties and their induction into office on October 14, 2003 were extra constitutional and illegal, as was the document that facilitated those events. The Liberian people accepted, as they had done in the past, that in the interest of peace and the restoration of stability to the Liberian nation, they would forego the concerns they had for the way in which the new government was structured and about the persons who would comprise it, hoping, perhaps even against hope, that the new leadership would demonstrate that although they did not have a mandate from the people, they were deserving of their trust, the same as if they had gotten a constitutional or legal mandate from them. Liberians hoped that the new government would address those issues rather than focus only on the holding of elections and thus returning the country to face the same problems that led to the war; that the new government would not assume that an elected government would have the motivation to address those problems. One year later, I have become deeply concerned that we may be losing the opportunity of lifting our country from the ashes of war and destruction to one of peace, stability, prosperity, and democratic restoration, and that we may again be on a course of inflamed discontent that could hurt our chances for a nation and people at peace with themselves.

I am concerned that with only one year left for the holding of free and fair democratic elections, the National Transitional Government of Liberia has still been unable to demonstrate a serious commitment to the peace process; that it has failed to articulate a clear vision for putting into place or supporting the institutions, systems and reform measures critical to a smooth transition and vital to a peaceful and stable Liberia; that it has failed to show that it has the capacity, the resolve and the competence to design and execute a truly functional good governance program; that it has failed to impress upon the Liberian people and the world community at large that it is familiar with the art of governmental functionalism; that it has been unable to identify and pursue those critical immediate national priorities so commonly associated with a nation emerging from a violent conflict such as ours; that it has not manifested a commitment to uphold and adhere to the rule of law or to abide by the principles of accountability and transparency (especially in the operations of the nation’s finances and the utilization of its resources); that it has failed to make evident a program to combat the endemic corrupt practices that continue to plague our nation; that it has shied away from taking any steps, either by some constitutional or other national process to vest it with legitimacy, or to eliminate the root causes of the national discontent; that it has failed to exert any meaningful attempts to reform our justice and judicial process so that it guarantees equal access to justice and protection from abuse; that it has failed to exhibit a clear understanding of its mandate or the extent thereof, ignored certain aspects of that mandate, and transcended other aspects of the mandate. Perhaps more worrisome is the fact that the Government is conducting the affairs of the State in a manner that puts the peace process, the Liberian nation-state, and the Liberian people at great risks.

No one doubts that the National Transitional Government of Liberia faces enormous challenges, both for the present and the future. There were constitutional, political, social and economic failings that had contributed to our zeal with which we had sought to destroy ourselves and our nation, and which a constitutional government would be reluctant to address, as to do so would have affected the extent of its power; there were legal and judicial factors that went to the core of our justice system and access to justice for all our people, and which had fueled some of the discontent that kept the war ignited; and there were problems entrenched in our educational failings, our business direction, our agricultural and other economic driven sectors. A competent government did not need a specific outline of those problems in the mandate to be able to address them. It was important that the Government acknowledged that it faced those challenges, because it was only by that acknowledgment that the government could seek solutions to those underlying problems.

We know, as well as does the Government, that it does not have a mandate from the Liberian people; it was neither elected by them nor formed through a democratic constitutional elective process; its officials were not appointed on the basis of merit or competence, and most of them are not acquainted with the concept of governmental functionalism, of how a government operate, or of the principles and practices of good governance; many of its officials are of questionable integrity and honesty, and they command only contempt, rather than respect, from the Liberian people and the world community; many of those officials have looming over their heads accusations of murder and other acts that rise to the level of serious crimes and breaches against humanity; and the government is engulfed in an inner turmoil of accusations of corruption, mismanagement and the plundering of the nation’s resources, at the expense of the Liberian people.

These are real challenges for the Government, aside from those imposed by the mandate of the Comprehensive Peace Agreement. Under the circumstances, the Government needs to demonstrate that it has the resolve to correct not only the ills it inherited from the past, but also the ongoing ills which have characterized its reign, whether imposed on it directly or indirectly by the Peace Agreement or brought upon it by its own actions or inaction; it must not only show that it is fully committed to the peace process, but it must also articulate a plan that redirects its priorities from a thirst for luxury and the corrupt to re-emphasizing the health, sanitation, education, electricity, agricultural and like priority needs of our people; it must show that it has a plan to reform of our judicial, justice and public service systems for the betterment of our people. If it is blinded to those challenges, then we, as Liberians, have the duty to speak out and to demand a change. We must speak out when there is a need to; we must pose the challenge when it is warranted; we must require answers from our leaders when we have doubts or when their responses pose more questions than they provide answers; we must highlight past ills and dissect any present course which could undermine the integrity of our nation and people; we must call the government’s attention and take it to task when we see that its actions are inconsistent with the basic tenets of the rule of law; we must impress upon it that we are not blinded to its many negative actions and that our past silence must not be taken for stupidity, as past governments have often attempted to have us believe; and we must take ownership of the process and seek those corrective measures that would diminish the impetus for violence which the Government’s actions could be inviting.

I had determined, in years past, to stay away from matters that could be viewed as political. I was wrong in that determination, for it deprived my country of the benefits of my views the same as other Liberians who failed to speak when the nation needed to hear their voices. We can no longer afford to sit on the sideline while our nation bleeds and cries for help; we must attend to its wounds and sound the alarm before we again approach the edge of disaster. We cannot remain silent when the actions being pursued by the Government are destroying the very fabric of our society and threatening our national survival. Our decision to speak out must never be motivated by a desire for a government job, as many of our compatriots have done. We must care sufficiently for our country and about its future to want to take the risks to ensure that the Government ceases to pursue a course that could inhibit the restoration of peace and democracy to our country, compromise our nation’s integrity, render it incapable of lifting itself from the scars of war, or discourage the correction of the ills of the past --- ills (and attitudes) that had plunged our country into near annihilation.

Too often in the past we were accused of encouraging the ill pursuits of our government by our silence. We were fearful of those governments’ insensitivity to and intolerance of our views. We are told that our inability or reluctance to engage those past governments in meaningful dialogues on the wrongdoings being committed in our society and against our people deprived our nation of the benefits that normally accrue from the exchange of ideas --- ideas vital to its development efforts. We were silent, for example, when the Constitutional Advisory Assembly was illegally vested with the authority to tamper with the Draft Constitution and to delete from that sacred document those valued provisions that sought to establish institutions that would guide our democracy, guarantee proper checks and balances, ensure more adequate mechanisms for accountability, provide greater avenues for transparency, and strengthen our legal and judicial institutions to protect our freedom; we were silent when the then Elections Commission pursued an extra legal course that ensured the rigging of the 1985 national elections and deprived our people of the right to determine their leadership; we were silent when the courts, including the Supreme Court, generally perceived as the branch of the government that has the responsibility to protect the sacred rights of the people, became the biggest threat to our evolving quest for democracy; we were silent when we saw our nation on a course of self-destruction, when we saw our people being abused and massacred, our children being killed or turned into unthinking human killing machines, our females were being raped, maimed, and exposed to ridicule, our rights and our freedoms being curtailed and trampled upon, our national pride being sold, stolen, or mortgaged away, our national resources being badly managed, looted and squandered, and corruption being made the order of the day.

We are reminded that by our silence we accepted everything that was bad, degrading, indecent, inhumane, violative of the ethics of democracy, and disrespectful of the rule of law and of human dignity. We are reminded even more that our silence may have encouraged ECOMOG to lend a blind eye to the massive looting that occurred in our country. We are now faced with the same dilemma: The United Nations, we are told, needs a clearer focus so that Liberia does not become, for the second time, a United Nations failure which could cause us to again resort to the scars of war. We must let the lessons of the past guide us in ensuring that our present Government, the NTGL, and the institutions charged with the responsibility of protecting the electoral process do not repeat the acts of disservice, perpetrated in the past upon our nation and our people.

I believe that by these discussions amongst ourselves, the government and the United Nations included, we can fully participate in determining the future of our country; that we can help both the Government and the United Nations redirect their focus. I hope also that in this new environment in which we, the Liberian people, have determined to reclaim our right to free speech, Liberian leaders, however they were able to attain State power, will take up the challenge. No international involvement, no matter how genuine and sincere, can substitute for us in that resolve. We cannot and should expect that our friends and the world community should want peace for us more than we want peace for ourselves. Accordingly, in the next series of articles, I shall endeavor to examine some of the shortcomings that have characterized our peace process, and as appropriate, suggest ways in which we could make the maximum of the time left before we proceed to elections. There is no better place to start than with the Transitional Government’s understanding (or misunderstanding) of the mandate conferred on it by the Comprehensive Peace Agreement.

The Mandate: Phase I: The Powers, Duties and Obligations Conferred.

Although we are fully acquainted with the mandate conferred on the Transitional Government by the Comprehensive Peace Agreement, I find utility in a reminder of precisely what the Peace Agreement mandated the Government to do within the two year period allowed for putting into place the appropriate governmental institutions and returning the country to elective civilian democratic rule. Under the Agreement, the National Transitional Government of Liberia is mandated to do the following:

(1) Ensure the scrupulous implementation of the Peace Agreement.

(2) Perform normal state functions as well as (a) see that the Ceasefire Agreement is implemented; (b) oversee and coordinate implementation of the political and rehabilitation programs enunciated in the Peace Agreement; (c) promote reconciliation to ensure the restoration of peace and stability to the country and its people; (d) contribute to the preparation and conduct of internationally supervised elections in October 2005, for the inauguration of an elected government for Liberia in January 2006. (Article XXII)

(3) Reconstitute the Supreme Court. (Article XXVII)

(4) Constitute a Governance Reform Commission and a Contract and Monopolies Commission, both established by provisions of the Peace Agreement, establish a Truth and Reconciliation Commission, and consider the establishment of an Independent National Commission on Human Rights. (Articles XII, XIII, XVI, XVII)

(5) Appoint cabinet and sub-cabinet ministers, utilizing the procedures provided for by the Peace Agreement and its various annexes. (Article XXVI)

(6) Ensure the establishment of an effective administrative and security infrastructure to monitor and support the implementation of the humanitarian guarantees and relief specified in the Peace Agreement, and attend to other humanitarian matters specified therein. (Articles XIV)

(7) Reconstitute the National Elections Commission, and request the United Nations, the African Union, ECOWAS, and other members of the international community as appropriate, to jointly conduct, monitor and supervise the next elections in the country. (Articles XVIII and XIX).

(8) Design and implement a program for the repatriation, reintegration and rehabilitation of refugees, internal displaced persons, vulnerable groups or war victims. (Articles XXX, XXXI)

From a review of the above-enumerated responsibilities and the grievances that culminated in our resort to war, aside from the selfish motives for power and illegal economic self-enrichment, there is no disputing the enormity of the mandate imposed on the new leadership of the NTGL. Indeed, one could conclude that the timeframe stated for the completion of those tasks easily required an eighteen-hour workday, inclusive of Sundays and holidays, if the programs anticipated by the Agreement were to remain on course. Yet, the new government showed no appreciation for the magnitude of the mandate. The first indication that the new leadership did not understand the magnitude of the mandate came in its interpretation of when it would assume power in Liberia.

The Mandate: Phase II: The misinterpretation to the time for seating of the Government.

Article XX of the Peace Agreement allowed for an interim period for the transfer of power from the Taylor Government to the Transitional Government. The article stated, at sub-section (a), that “with the exit of President Charles Taylor of the Republic of Liberia, the GOL shall be headed by the Vice President for an interim period” and at sub-section (b) that “the Vice President shall assume the duties of the current President for a period not beyond 14th October 2003, whereupon the Transitional Government provided for in this Agreement shall be immediately installed.” The article was interpreted to mean that the Vice President of the Taylor Administration was empowered to act as President until October 14, 2003 and that the Transitional Government could not be seated until that date. On the basis of that misinterpretation, indulged in by the Transitional Government, the Chairman and Vice Chairman were not sworn into office until October 14, 2003. I submit that the Peace Agreement did not state that the Vice President should not turn over the presidency until October 14, 2003. A review of the relevant phase of the article clearly supports this conclusion. It empowered the Taylor Vice President to act as President “for a period not beyond October 14, 2003”, clearly indicating thereby that at any time prior to October 14, 2003, the “Acting President” could have been required, at the request of the NTGL to turn over the Government to the new leadership of the NTGL. Therefore, at any time from the date of the selection of the Chairman and Vice Chairman to the leadership of the proposed Transitional Government, they could have been inducted into office. Had the Peace Agreement intended otherwise, it would clearly have stated that the “Acting President” shall turn over the power of the government to the NTGL “on” October 14, 2003, rather than the words “not beyond October 14, 2003”. Indeed, Article XXI, which spoke of the date of the inauguration of the Transitional Government used the word “by”, not “on”, indicating that the new government could be seated at anytime up to but not beyond October 14, 3003.

It is true that the Transitional Government could have waited until October 14, 2003 to be seated. However, that wait would have been of its choosing and not due to any misinterpretation of the Agreement. This is important because had the Transitional Government believed that it could have taken over power sooner than October 14, 2003, it would have to explain why it had to wait until October 14, 2003 for the Chairman and Vice Chairman to be inducted into office; it would have had to explain why, given the enormity of the tasks imposed on it by the Peace Agreement, it had chosen to wait for two months before commencing its work; it would have had to explain why it needed a two-month period which it barely did anything with, except to lay in wait; It would have had to explain why, if the object of the continued siege of Monrovia --- a siege which caused the loss of hundreds of innocent civilian lives --- was to have the Taylor Government removed from power, it would want that Government, absent Mr. Taylor, remain in power for another two months; it would have had to explain why it wanted to allow Mr. Taylor another two months to continue his influence over the nation, at the risk of derailing the peace process; it would have had to explain why it would be disposed to allow Mr. Taylor’s officials to remain in power for another two months to continue the acts of abuses and corruption for which Mr. Taylor had been forced to “resign”, and especially in the absence of any mechanism for accountability; it would have had to explain what was the utility in demanding the immediate “resignation” of Mr. Taylor if the Government over which he continued to exert influence would remain in control of the nation for another two months; and it would have had to explain why, in the face of the massive looting which was occurring in Monrovia, with a Taylor leftover government on the ground, it had elected to stay away for another two months. We now know that the delay allowed Mr. Taylor to continue to exert directly continued influence over the country for another two months, enabled his officials to utilize the additional time to continue to squander the nation’s resources, created the opportunity for the almost total looting of public facilities amounting to millions of dollars; and provided impetus for the warring parties to continue their military hostilities in the hope of gaining more bargaining power with which to confront the LNTG when it was finally inducted into office.

In misinterpreting the Agreement, the NTGL relieved itself of providing explanations to any of the enquiries mentioned above. It is difficult to determine whether the misinterpretation was deliberate or due to incompetence. Nevertheless, the Government needs to know that the misinterpretation was costly for the nation and its people, in terms of time lost that otherwise could have been utilized efficiently had the Government been seated earlier than October 14, 2003, in terms of dollars lost as a result of the massive looting of public facilities and institutions, and in terms of lives lost as a consequence of the continued fighting amongst the warring parties for optimal bargaining positions. But there is another concern. Assume for the moment that the leadership of the new government and their advisors were correct in the interpretation of the Peace Agreement, they still had a period of two months within which to undertake all of the pre-induction activities. Stated another way, what did the leadership of the NTGL do between August 21, 2003, when the Chairman and Vice Chairman were selected by the warring parties to head the NTGL, and October 14, 2003, when they were officially inducted into office?

The Mandate: Phase III: The costly inactivity of the NTGL.

We know that following the selection of the Chairman and Vice Chairman of the NTGL, a Transition Team was set up and a new cabinet level portfolio (Chief of Staff) was established without, at the time, legislative concurrence. This was a disregard for the rule of law even before the Government was seated, but I shall not stress the issue at this time. We know also that the Transition Team did not see itself as an initial crises team, as indeed it could not, but rather as a power broker team. We know further that its primary focus --- as was the focus of the new leadership --- was on whether sub-cabinet positions should be filled by the new leadership or by the warring parties, a situation which prompted a United States based purported spokesperson for LURD to ask why the so-called representatives of civil society were arguing about jobs since they had not participated in the killing of our people. We know additionally that following the setting up of the Transition Team, many of its members, including its Chairman, then traveled abroad to be with their families. What were they thinking, a friend asked of me at the time? Was it out of immaturity, ignorance, incompetence, negligence, or the arrogance of power, he enquired? He tried to make the case that Mr. Bryant and those who surrounded him should have known of the complexity of the government he had campaigned to lead, and of the problems it was likely to face, given the nature of its structure and composition. He argued that they had had the chance not only to participate in the negotiations, but hopefully, to also analyze the level of competence of the participants representing the warring parties who were soon to occupy some of the most important key positions in the government. That analysis should have prepared the new leadership for initial interaction and contacts with the warring parties and thus avoid the exchanges that subsequently ensued regarding the division of sub-cabinet positions. Not to have done this background analysis, critical in the complex environment in which the government was expected to operate, evidenced lack of knowledge in the art and rudiments of governance, a lack of appreciation of the complex nature of the government, and a lack of focus.

I suggest that given the tasks which the government was expected to perform, the timeframe within which it had to perform those tasks, and the conditions in Liberia, both with regards to the people and the state institutions, what the new Government needed was not a Transition Team to indulge in fanfare, but a Crisis Management Team to immediately begin a review of the nation’s problems (or to establish sub-teams to undertake such reviews), to formulate programs and identify the national priorities in the light of those problems; it needed a Crisis Management Team to advise it on the scope of its mandate and on the articulation to the Liberian people and to the world of the Government’s perception of the immediate national needs for the relief of the people; it needed a Crisis Management Team to advise it on alerting the Liberian people of the Government’s plans for the nation, of how it intended to address their grievances, of how it intended to seek their welfare, and of how it intended to utilize their resources; it needed a Crisis Management Team to advise it on informing a skeptical world of how the Government intended to operate in the volatile environment in which it would soon find itself; it needed a Crisis Management Team to advise it on announcing and giving notice to the outgoing government that it would be held accountable for any looting or other acts committed by its officials and supporters during the interim period, or for any chaos occurring during the period; it needed a Crisis Management Team to advise it on providing warnings to business institutions and individuals to cease entering into any further contractual commitments with the outgoing government, or to notify them that such contracts would not be honoured by the new government; it needed a Crisis Management Team to advise it on how to proceed with the immediate composition of the Commissions specified by the Peace Agreement and how it intended to support the efforts of those critical institutions; it needed a Crisis Management Team which, by its initial workings, would have provided advice to the Government on putting in place the mechanisms that could later have forestalled the thirst for vehicles as a first national priority, in preference to health, sanitation, electricity, humanitarian efforts, and like undertakings. In all of this, the new government-in-waiting failed to demonstrate maturity, seriousness of purpose, and commitment, leaving instead all the critical needs of the nation for the international community to determine and pursue.

Whatever may have been the reasons for the government’s inactivity or its lack of initiative, we now know that as a consequence of the delay, millions of dollars were lost, through looting and other activities. We can take the scenario to still another level. Assume for the moment that the leadership of the government-in-waiting did not comprehend the need for a Crisis Management Team, could it not have commenced in honest the process of organizing the government? For example, although the Peace Agreement allowed the parties three days, following the induction of the Chairman and Vice Chairman into office, within which to submit the lists of names for cabinet portfolios, the Chairman or his designees could have commenced a negotiation process within days of his selection, such that nomination to those positions would have been rendered only a matter of formality. Rather than engaging in arguments about sub-cabinet positions, they could have commenced immediate consultations with the parties, especially on the appointment of top-level cabinet positions. The warring parties already knew who their nominees were for the major positions in the government. If their lists were not available at the time, the leadership of the NTGL-in-waiting could have negotiated a timeframe for the submission of the lists, or, if cooperation was not forthcoming, they could have pressured the parties, publicly, to submit such lists within a given timeframe. I do not believe that the parties, especially those engaged in military hostilities, would have opted for delaying taking control of the government bureaucracy, since at the time they had made clear to the Liberian people and the international community that the object of the war was to attain state power and secure jobs. In any event, if the parties failed to cooperate, the leadership of the NTGL owed themselves and the Liberian people the duty to document the failure, with copies to the appropriate national and international bodies, and an appeal to the latter to apply the maximum pressure on the parties to gain their cooperation. In all of these the leadership failed to demonstrate the expected leadership capability.

But the appointment to cabinet portfolios of persons recommended by the warring parties, although important, was not as critical as putting into place the institutions needed to design the framework and system for good governance, accountability, transparency, combating corruption, legal and judicial reform, public sector reform, government integrity, procurement procedures, and like measures necessary for lasting peace and stability in Liberia. It was important that the new leadership should have initiated the setting up of those critical institutions, stipulated in the Agreement, even if the parties to the Agreement did not see those as a priority. The Peace Agreement, at Articles XVI and XVII, for example, established two Commissions: The Governance Reform Commission (GRC) and the Contract and Monopolies Commission (CMC). The Articles did not require that the Chairman establish those bodies or that the Transitional Legislative Assembly take action to give birth to them.

The Articles themselves gave birth to the Commissions, outlined their mandates, stipulated the number of persons that would constitute their membership, and specified the manner in which the members were to be selected. In the case of the Governance Reform Commissions, Article XVI required only that the nominees be drawn from a list provided by civil society organizations, and that the Chairman submits the names to the Legislative Assembly for its confirmation. In the case of the Contract and Monopolies Commission, Article XVII required only that the nominees be members of civil society and that their appointments were subject to the approval of the Legislative Assembly. The Government could have commenced consultations immediately with civil society organizations were purportedly represented at the Conference in Accra. Consultations could therefore have occurred in that locality. But the team could otherwise have come into Liberia for greater consultations if there was a need to (and I believe that there was such a need). With due diligence, the lists of nominees could have been ready within two or three weeks of the selection of the Chairman and Vice Chairman. This would have allowed ample time for the Chairman to confer with persons whose names had been recommended, make the necessary amendments as determined by their acceptance or refusal to serve, and determine upon a final slate of persons whose agreement to serve had been obtained. Consultations could also then have been held informally as soon as the leadership of the Assembly was selected so that approval could easily have been secured as soon as the Assembly met formally for business. The members of the two Commissions could have been inducted into office within a few days of the induction of the Chairman and Vice Chairman into office. What were our new leaders thinking? Or more appropriately, why were they not thinking?

Had the government taken those initial steps in constituting those Commissions, it could have forestalled some of the events that were later to cast aspersion on its reign and its integrity. In the case of the Governance Reform Commission, key personnel could have been identified and their services secured immediately upon the formal constitution of the membership of the Commission to prosecute its mandate and engage the international community for additional funding; matters of accountability and transparency, mismanagement, budgetary and fiscal reforms and responsibilities, decentralization, electoral reform, legal and judicial reform of the justice system, corruption, procurement procedures, public service reform, and the like could have become immediate subjects of review, public information, studies and recommendations; an initial monitoring of expenditure of public resources and identification of priorities could have been undertaken; and the oversight stipulated by Article XVI(c) could have been put into place, or at lease initial guidelines prepared to put government institutions and agencies on notice not only as to what was expected of them, but also that they would be exposed for any mismanagement or corrupt acts.

The mandate of the Commission did include ‘ensur[ing] transparency and accountability in governance in all government institutions and activities, including as the Public Ombudsman.” The inactivity of the government could have averted the LPRC dividends debacle, especially the manner in which the Chairman utilized the proceeds from the dividends declared by the LPRC. The dividends declared by the LPRC did not belong to the Chairman; they belong to the Government of Liberia. It was not his to use as he saw fit, outside the budgetary process and in the face of the government’s negligence in adhering to the clear mandate of the peace Agreement relative to the Governance Reform Commission. It is such unilateral pursuits and the taking of liberties with the national resources that have provided the impetus for some of the violence experienced in our society. The establishment of the Governance Reform Commission was intended to eliminate or minimize such pursuits, create a system of order in the public domain, and ensure accountability, transparency, equity, honesty, fairness and respect for the rule of law.

A second critical failure by the Government was the delay in constituting the Contract and Monopolies Commission. Like the Governance Reform Commission, the Contract and Monopolies Commission was established by the Peace Agreement and required only that the Chairman submit the names of nominees to the Legislative Assembly for approval. Like the Governance Reform Commission, consultations could have been had immediate following the selection of the Chairman and Vice Chairman and the names submitted to the Legislative Assembly immediately following the induction into office of the Chairman and Vice Chairman. It is important to note that the Peace Agreement mandated, as a part of the functions of the Contract and Monopolies Commission, “ensuring that all public financial and budgetary commitments entered into by the NTGL are transparent, non-monopolistic and in accordance with the laws of Liberia and internationally accepted norms of commercial practice;”…. “Publishing all tenders in the media and on its own website to ensure maximum competition and transparency. The Commission shall also publish on its website the result of tenders as well as a record of all commercial entities that have participated and succeeded in reviewing contracts.”

To date, even after its late constitution, the Commission remains inoperative because of the lack of financial support from the government for its operations. In the meantime, the various institutions of the government, the Executive Mansion included, are embarking on an array of agreements and contracts. In violation of the Peace Agreement, in disregard for the principle of transparency, and without submitting the process to competitive biddings, they have concluded contracts ranging from the purchase of over priced luxury vehicles (I understand to the value of between US$3 million and US$8 million), to oil exploration agreements, to agreement for the purchase of buses, to the granting of clearances for certification of concessionaires, to the granting of frequencies for cellular phones, to the sale of the Buchanan iron ore, and even to the sale of the Liberian Ambassador’s residence in London, England, only to name a few. In all of these there has been no Commission involvement, no accountability, and no legislative oversight, except for the vehicles that the Legislative Assembly sought.

Even more disturbing are reports of local newspapers that in the case of the sale of the Buchanan iron ore, wherein some Liberian organizations had filed in the Supreme Court of Liberia a petition for the issuance of a writ of prohibition against the Government to prevent the shipment of the ore, and wherein the Supreme Court had ordered the issuance of a writ of prohibition prohibiting the export of the iron ore until a hearing was had and a determination made, the Government had chosen to ignore the Supreme Court writ and had ordered the ore shipped. There are no indications as to what the Supreme Court did after this clear affront to its authority. What is clear is that a failure by the Court to take seriously the matter could have serious implications. Not surprisingly, the Ministry of Justice has remained silent at this disregard for the rule of law. Do we believe for a moment that the Government of China would have done the same thing faced with the same events? The government still has to give an account as to how the funds were utilized and to open the records to public scrutiny, and the Ministry of Justice still has to investigate the incident and determine whether the law was violated, and if so, to proceed with the prosecution of the violators.

The recent allegations made by Mr. Bennie regarding the misapplication of public resources, the Government’s failure or refusal to call for an audit of the Ministry of Finance, and the Ministry of Justice failure to conduct an investigation into the allegations, provide another clear example of the government’s disregard for the rule of law. Recent news reports of the action by the Minister of Public Works in physically storming the General Services Agency Offices with the demand that he too be supplied vehicles, evidence a further clear example of what can ensue when the government shows a disregard for the rule of law. How can the Government encourage the Liberian people to adhere to or show respect for the rule of law in the face of such violations by it? The “rule of law” concept does not apply only to apprehending common criminals; it extends to and encompasses every aspect of the government’s behaviour or conduct that violates the practice of good governance and its disregard of adherence to the societal norms, in the instant case the Peace Agreement and the statute laws of the land.

The Government should be contemplating establishing a corruption commission, not promoting corruption; it should be formulating programs to strengthen the judiciary, not how to destroy it; it should be encouraging our people to show respect for and adherence to the rule of law, not how to abuse or violate it. No member of the government, whether the Chairman, the Minister of Finance, the Governor of the Central Bank, the Minister of Commerce, and/or like officials, should be above the law, and when they transgress the law, we must speak to the issue so that they are aware that we know the wrongs they are committing, and that the world knows it also. Perhaps now the Governance Reform Commission can assert some strength and address some of the ills of governance within the government, or it could be perceived as nothing more than another government bureaucracy whose design, like other agencies, is to see how much funds it can accumulate for its members, and leave the nation in the same desolate state that it met the nation.

As far as the sale of the Ambassador’s residence in London is concerned, there are still debates as to how much the property was sold for, where the proceeds are, and by whose ultimate authorization the residence was sold. Neither the Ambassador nor The Minister of Foreign Affairs has the authority to dispose of the nation’s property without the express approval of the Chairman. The question therefore is whether the Chairman knew of the sale? If he did, he must justify to the nation the necessity of disposing of the nation’s property. Does this government expect that a future constitutionally elected government should secure a new residence in London, after this government, which doesn’t have a mandate from the people, has chosen to sell off the ambassador’s residence? This is only one of the examples of how the Government perceives its mandate, which for now seems to be primarily the sale of Liberia’s resources, with no accountability and no transparency. We have seen absolutely no desire or commitment on the part of the Transitional Government to addressing the problems that precipitated the war. Given the conduct exhibited to date by the government, the nation could suffer disastrously if the United Nations now lifted the sanctions, as advocated by the Government. We can only hope therefore that the United Nations will not agree to the request and will thus protect the interest of the Republic.

Perhaps the greatest concern must be the Government’s failure to legally establish the most critical Truth and Reconciliation Commission. This most profoundly indicates the Government’s lack of commitment to the process and to resolving the national grievances. We know that unlike the Governance Reform Commission and the Contract and Monopolies Commission, which were out rightly established by the Peace Agreement, this is not the case with the Truth and Reconciliation Commission whose establishment is left to the Legislative Assembly or to some governmental ingenuity. Whereas the Peace Agreement states that “A Governance Reform Commission is hereby established” and “A Contract and Monopolies Commission is hereby established, it states at Article XIII of the Truth and Reconciliation Commission that “A Truth and Reconciliation Commission shall be established…”, clear indication that the latter shall be established by some future act by the Transitional Legislative Assembly, upon the initiative of the Government or by Assembly itself. This Commission, according to the Agreement, would have the task of providing us with the opportunity and the forum to bring reconciliation and forgiveness to ourselves and to help us avoid another war, growing out of the acts committed in the course of the civil war and perhaps even before. A further clear indication that the Commission was to be established by some formal act following the signing of the Peace Agreement, the composition of the composition and the criteria for selection of its membership were left to be determined by that future act, not by the Agreement, as was done in the case of the other two Commissions mentioned above.

Yet, after almost a year into the existence of the government, and with only one year remaining before the nation goes to elections, the Government has not seen it fit to design legislation for passage by the transitional Legislative Assembly. Isn’t reconciliation amongst the Liberian people a priority for the Government? To date, we are told that some persons have been named to a Commission. How could the Government begin to name members to a non-existing Commission? How did the Government determine the number of persons who would constitute the membership of the Commission, in the absence of legislation or other legal action? What criteria did the Government use in determining who would or should serve on the Commission?

More than an oversight, the Government’s failure to have the Truth and Reconciliation Commission established in accordance with law was more than just an oversight; it was a further demonstration of the incompetence of the Government. In fact, the only priority we have seen from the Government so far has been the establishment of those agencies that could be used to conclude long-term contracts and pursue oil deals, and a plea for the lifting of sanctions that would enable the conclusion of more contracts to make more funds available for the public functionaries and create disastrous consequences for a future constitutional government --- actions that are bound to lead us back to war. What then will this Government leave us as its legacy, a friend asked? Without waiting for an answer from me, he uttered, “corruption, a disregard for the rule of law, incompetence and a recipe for a future war, unless we can begin to apply the pressure and insist on the change to aver those consequences”. I could hardly dispute that conclusion, at least for the moment. This is why it is important that we take ownership of the process and let the world know that we are not prepared to see it fail or to see another war overtake our land.

In Part II, I shall endeavor to further outline where the Government has failed to implement the provisions of the Peace Agreement and analyze the various priorities, as we all should, which the government should be directing its focus and regarding which the United Nations, well-meaning nations, and international institutions must now play a key role so that we stay the course.

About the Author: Counsellor Philip A. Z. Banks, III holds a Master of Laws degree from the Yale Law School, Connecticut, U.S.A. He served as Minister of Justice and Attorney General of Liberia during the reign of the Interim Government of National Unity. He is a professor and former Dean of the Louis Arthur Grimes School of Law, University of Liberia, and served as Director of the Legal and Research Department of the National Constitution Commission which drafted the 1986 Constitution. He has authored and chaired the core of editors that have compiled and edited the Liberian statutes and Supreme Court Opinions. He is also the author of a three-volume Treatise “Liberia: World Corporate Domicile: Treatise, Statutes, Cases and Legal Materials”.

†The Liberian Constitution states, at Article 50, that: “The President shall be elected by universal 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 immediately following the elections.” Because of an unexplained desire to rush the transition, Mr. Taylor was sworn into office on August 7, 1997. His term of office therefore legally expired on August 7, 2003. There are two thoughts which could be pursued: (1) that between the period August 7, 1997 and January 5, 2003, he was acting in the position illegally and therefor3e all acts done during the period were illegal, or (b) that his term expired on August 7, 2003 and therefore any acts performed thereafter were illegal. Other scenarios could be advanced but those would distract from the focus of this article.