Liberia: The Pain is Profound

By Charles Kwalonue Sunwabe, Jr.

The Perspective
Atlanta, Georgia
June 12, 2012

In the post Cold War era, scholars of democracy have maintained that the democratization process would amount to a “vain and impossible” undertaking, if a functional democratic culture is not established from the onset of the democratization process. Thus, as part of a democratic political culture, the various actors who so often constitute the political spheres of democratizing states must be willing to embrace, submit to the norms of democratic institutions and be held accountable. Viewed from this perspective, democracy constitutes, what Mississippi State University’s political science professor, William Hay, once described as a “liberal representative government under law, sustained by a political culture that accepts open disagreement and demands accountability”. Professor Hay’s definition emphasizes the roles of institutions in the making of a banal and utilitarian democracy.

In the democratization process, representative institutions grow out of particular challenges, problems, crises, unsolved issues of social justice, and conflicts - these maladies, if unresolved tend to plague societies for prolong periods of time, before they can result in full flesh brutality. In the African context, these challenges are habitually manifested in the domain of wars, violent demonstrations, and spontaneous ethnic tensions. Globally, particularly in the twenty-first first century, democratic institutions have evolved to accommodate societal challenges: they have equally embraced and incorporated the opinions and views of citizenry in the formulation of democratic systems that not only accommodate, but render the personal aspirations of political actors, constitute communities subservient to the rules of law. As follows, as a process, democratization involves a deeper participation of the governed - the emerging instructions, including institutions changes that are the results of the expressed views, needs, and opinions of the totality of the society.

In the Liberian context, an argument can be sustained to the effect that what exists under President Johnson-Sirleaf does not remotely resembles or represents institutional democracy. Liberia, under President Johnson-Sirleaf, is an awful and execrable “pseudo democracy” that is marked with the same old sordid African elites’ mentality. From the very onset, institutional transformation in Liberia was supposed to target three central institutions, including the Liberian judiciary, the mass media systems, and the educational system. Globally, and specifically in the African context, the roles of the judiciary in the democratization process is supposed to be paramount. This is so because the democratization process often involves competing interests that borders on conflicts. The role of the judiciary in this conflict-proned environment is one of reconciling competing interests, and addressing political disputes authoritatively.

As noted above, the democratization process can be conflict prone. As Amy Chua has argued in her 2003 study, World on Fire: How Exporting Free Market Democracy Breads Ethnic Hatred and Instability, “democratization[emphasis added] often shift power to majority groups with real or imagined grievances against market domination minorities . . . tensions generated by economic dislocation have a greater impact in multiethnic society that lack cohesion.” In contemporary Liberia, power has not shifted to the majority. Instead, a minority settler (including a select few elite indigenes) population has always ruled and dominated Liberia; however, they have reinforced their grips on state power in present-day Liberia. This minority ruling elite consists of some bad elements of the descendents of freed American slaves who claimed to have established Liberia in 1847. As previously stated, a tiny but mainly erudite segment of the indigenous majority constitutes a cardinal part of this corrupt cartel. Combined, these sycophants constitute a “lethal and venally” corrupt group of minority policymakers that have the penchant for self-enrichment and aggrandizement at the expense of badly needed and beneficially-directed reforms.

Where political, economic, and social corruption threaten to disrupt the democratization process (as in President Johnson-Sirleaf’s Liberia), an evolved and predictable judicial institution is supposed to act as a buffer to the political system. Thus, a reformed judicial institutional buffer can promptly resolve disputes and arrest tenuous situations before they can degenerate into full scale schisms. In other words, it can ensure greater and wider rights for the entire citizenry. Apart from this function, developed and functional judicial institution tends to control the corrosive and inevitable competition that characterized democratizing states. In contemporary Liberia, political competition is routinely articulated through a blatant appeal to virulent ethnic rhetoric - ethnic groups are routinely exploited by the charlatans who resolved to solidify their grips on state power. Apparently, however, when the judiciary is functional, it has the ability to cement critical and badly needed links between the citizenry and their government, thereby exposing and limiting the corrosive and exploitative impacts of political crooks - charlatans (crooks - charlatans are simply held accountable under the law for acts that fall outside of democratic institutional arrangements). This has the calming effect of enhancing governance beyond the political capital, and can ensure stability and deeper ties between the government, and other core groups that operate at the periphery of the democratizing state.

Without a strong and predictable judicial institution, democracy exists nominally - political competition brings about or reinforces civil strife. Additionally, governmental legitimacy cannot be derived from the populace, and government becomes grotesquely dysfunctional and fundamentally flawed. Johnson-Sirleaf’s Liberia typifies this description! It would be intellectually dishonest on my part to assert that Liberia had a functional judiciary prior to the civil war. To make a case, the Liberian judiciary was always a corrupt and inept kangaroo judicial system. An impartial judiciary did not exist in pre-civil war Liberia and still does not exist today under Africa’s first female president. Note that what did not exist in the past needs not be reformed - it can only be built from the bottom up by laying a solid foundation. The salient point is that Liberia needs to develop a current functional judiciary that will help develop and sustain its democracy.

To be efficient and held in high esteem by the proponents of democracy, judicial institutions must strive for impartiality in the implementation and interpretation of the laws - including substantive criminal and international laws. More importantly, the judiciary must help consolidate democratic gains in an egalitarian mode. In the Liberian case, the criminal judicial system takes central stage - the country has one of West Africa’s highly codified criminal codes. But, the application of the laws of Liberia is reflective of an unwilling, corrupt, nepotism induced and subservient judiciary. Cases involving corruption and other acts that violate the laws of Liberia are seldom prosecuted.

In circumstances where evidence overwhelmingly implicates high ranking government officials, a pathetic defense, led by President Johnson-Sirleaf is often mounted. For example, in a 2009 case of corruption involving the former Liberian finance minister, Augustine Kpehe Ngafuan, President Johnson-Sirleaf was swift to mount a robust, but yet feeble defense of the then accused minister of finance. President Johnson-Sirleaf took to the airwaves, in defense of the accused minister, and asserted that she would put “her neck on a shopping board” in the minister’s defense because, according to the president, the finance minister was simply not a corrupt person. The president went as far as to accuse her then auditor general, John Morlu, of filing a politically motivated corruption report. But, current evidence emerging from a post Ngafuan Liberian Finance Ministry bespeaks of an Ngafuan era that “rein of unrelieved and ruinous” corruption. Note that in a democracy, investigating and prosecuting corrupt practices are not the job of the presidency; but, rather, it is the duty of an impartial judiciary to initiate, investigate, and act on accusations of corruption. In the instant case, the president’s hurried defense of the finance minister in concert with the ministry of justice’s failure to initiate an independent inquiry into the report implicating the then finance minister reinforces the commonly held Liberian notion that the Liberian judiciary is an extension of the Liberian presidency. In my view, the Liberian judiciary is simply not credible, independent, and neutral.

It is an established fact that in the democratization process, “the judicial system is an implement through which greater understanding of the democratizing environment can be gained”. Again, in the Liberian framework, the judicial system is disgustingly corrupt, incompetent and lacks the capacity to prudently apply the laws of Liberia. Liberia’s dominant political elites are not held accountable for their transgressions against the laws of the state. For example, justice is bought in today’s Liberia by the highest bidder. Judges routinely and openly solicit bribes in exchange for judicial leniency and favorable opinions. The vast majority of Liberian lawyers are not immune from the corrupt practices that have sadly come to characterize the Liberian judicial system. Zealous advocacy, a cardinal legal norm, has been replaced in modern Liberia with a weird scheme that has lawyers functioning as “middle persons” procuring bribes, fees, illegal mining licenses, and contracts on behalf of presiding judges, persons, and multinational corporations.

The jury system is yet another modern day cancer in Liberia. For example, the jury pool in every major criminal case is the same—not surprisingly, the verdict is often the same: Not guilty! Again, it is simply a case of the highest bidders getting the best decisions. Liberia’s jurors are now infamously named “professional jurors”. The acronym “professional jurors” is used to deride the immense wealth accumulated by the same select group of jurors. After all, the nefarious acts of rendering pre-determined judgments for cash have its societal consequences. Yet, mansions are being built and continued to be built with proceeds that are sought and paid to jurors in exchange for favorable judicial decisions. The only judicial competition taking place in today’s Liberia has to do with who gets a bigger share of the judicial corrupt pie—judges, lawyers, and jurors fight it out to the very end.

It is my contention that a judicial system that does not have the capacity and the ability to impartially enforce the law is often dismissed and resented by the citizenry. In some instances, corrupt and incomplete “institutional arrangements” such as the one existing in Johnson-Sirleaf’s Liberia are extremely difficult to improve. Two reasons account for the inability to improve moribund and bankrupt institutions. First, they are perceived as illegitimate by the populace; thus, the populace is generally disinterested in their maintenance. Overtime, a disillusioned public loathes and reacts to a corrupt judiciary by taking matters into its own hands. Tragically, Liberia is now at this crisis point - countless citizens including political parties are now taking matters into their own hands. Secondly, sustained corruption and ruinous acts of bribery impede the enforcement powers and prestige of the judiciary. When this happens, international aid, more budgetary allocations and other targeted reforms become mere publicity stunts. In such a case, there is nothing left to be redeemed - the institution is simply beyond redemption. In the Liberian case, the judiciary is a mafia like empire - aid in the form of the usual misplaced and misapplied Western largesse will not spare the Liberian judiciary. The cancer can only be cured by replacing it with an entirely new and transparent judiciary.

Of course, it would be disconcerting on my part to criticize the Liberian judiciary without an iota of evidence. Recently, institutions, including the United States’ Department of State, Amnesty International, Judicial Watch and the UN dismissed the Liberian judiciary as “extremely corrupt”. Liberia’s chief justice, Johnny Lewis, tends to agree with this international assessment of his judiciary. But the Chief Justice did not assume responsibility for his own roles in the corruption of the Liberian judiciary. In a classic African elitist’s fashion of shifting blames, the Liberian chief justice opted to denounce and deride the clerks of the Liberian court systems as the primary culprits of the corruption of the Liberian judiciary. Accordingly, the clerks were principally responsible for the corruption of both the court and the jury systems in President Johnson-Sirleaf’s Liberia. Sadly, level-headed Liberians considered the chief justice’s statement to be yet another hyperbole - note that the Liberian public does not take the chief justice seriously. In Monrovia and its environs, Justice Lewis has an established reputation as a consummate alcoholic.

Apparently, Chief Justice Lewis is not alone in agreeing with the international community that the Liberian judiciary is grossly corrupt. During one of her many visits to the United States of America, President Johnson-Sirleaf candidly noted that the Liberian judiciary was corrupt and posed great challenge to her quest to prosecute corruption cases. But, when faced with citizens’ demands for justice, the very President Johnson-Sirleaf referred her fellow citizens to the same court system that she did not think was competent to try, dispense, and render impartial justice. In one particular instance, it appeared that the Liberian president did not trust her own courts after all. Again, when faced with fresh threats of demonstration in November 2011, she promised to bring in Nigerian soldiers to brutalize her own citizens. And, if the brutality did not work, this time, she promised to send her citizens to the international criminal court in The Hague for a threatened demonstration that the president viewed as “enticing” political violence.

In writing this article, I have not set out to merely criticize the Liberian government of President Johnson- Sirleaf. I am not remotely interested in an unwarranted and unprovoked bashing of my beloved place of birth. But, sadly, Liberia is fast descending into yet another abyss of chaos. Our country is at a critical juncture and there is a pressing need to advocate for reforms! The actions and policies of the current government in concert with the government’s abysmal failure to embark on serious institutional reforms have despondently reversed the marginal gains made in Liberia by the international community since dictator Charles Taylor was forced out in 2003.

President Johnson-Sirleaf is unserious about the rule of law, accountability, and justice for all. In my view, this is not a government of change! This government operates like a “furtive band” of bandits and crooks. Governmental bribes, kickbacks, fraudulent contracts and the mortgaging of national mineral resources’ assets under the guise of job creating (for the benefit of a selected few) are the order of the day. We cannot sit back idly and by our inaction participate in the making of another Liberian bloodbath. Towards this end, I in concert with other visionary and reform-oriented Liberians, make the following proposals that need to be acted upon:

(1) To address some of the critical issues that I have delineated here, there is an urgent need to seek intervention from both the international community and the Economic Community of West African States (ECOWAS). It is about time that we petition the international community to act promptly to prevent renewed conflicts in Liberia. To be blunt, the Liberian judiciary needs to be placed under international trusteeship. The current Supreme Court and subordinates courts have miserably failed.

(2) As I have argued here and elsewhere, the justice system is pivotal in the promotion of democracy, and in sustaining peace—when it is dysfunctional and prone to bribery and corruption, citizens are often denied justice, thus forcing them to take matters into their own hands. When this happens, conflicts of far-reaching consequences are the inevitable result. We are now at this tragic point in Liberia—it is time to replace the mafia court with a functional court system that is built and centered on respect for and enforcement of the rule of law for all. I am aware that there might be constitutional challenges to my proposal; however, this needs not prevent prompt action in this respect. Note that in the past, the very international community has intervened when necessary and has suspended relevant portions of the Liberian Constitution principally to prevent war and protect Liberian humanity. Sadly, we are at this point again and Liberians need protection from their own court system—justice is notoriously and routinely subverted in today’s Liberia.

(3) Additionally, all mining concessions and contracts that were procured by fraud, including farm land seized from “indigenous people” and mortgaged to Sime Darby, a Malaysian firm operating in Liberia’s Grand Cape Mount County (http://www.youtube.com/watch?v=85ldLyUWGs8), should be submitted to the international community with the aim of quashing these nefarious contracts. Under both Liberian substantive mining laws and international contracts law, the people of Liberia are not bind by contracts that were knowingly procured by offering bribes and other forms of inducements to members of the Liberian Legislature, including other government representatives. President Johnson Sirleaf’s assertion to the effect that once her government enters into an agreement with a foreign entity, the agreement cannot be nullified is false and incredibly misleading.

(4) Lastly, Liberians should demand directly from the international community a war crimes court that will address impunity in Liberia. Liberian warlords, including individuals who materially contributed to the Liberian civil war should be held accountable under international criminal law, for the various crimes committed against humanity. There will be no peace and stability in Liberia without a neutral war crimes court that will try all parties to the Liberian conflict—note that perpetrators of crimes against humanity are incompetent, and cannot legally, morally and ethically decide how the crimes that they and their emissaries committed against humanity in Liberia are addressed. We, the victims of these two heinous civil wars do not need to ask President Johnson-Sirleaf, wait for her grandstanding before we can demand justice on our own behalf. The Nuremburg’s principle entitled us to justice and we must peacefully demand it from the international community. The time has come for Liberian warlords, their surrogates and African presidents who played a role and materially benefited from the Liberian civil war, to be held accountable.