Legislative Restriction On CBL Officials
Versus
Claims Of ‘Equal Protection’ And ‘Due Process’ Violations

A. Background

Recently, the Liberian Legislature amended the Act creating the Central Bank of Liberia (CBL). The Amendment limits and restricts, within a specified time-frame, all present and future governors and deputy governors of the CBL from contesting for elected offices as long as they remain officials of the CBL. Furthermore, the Amendment provides that they shall not be qualified to contest any elected office until three years, consecutively, after the end of their tenure at the CBL, or after their resignation therefrom.  The Amendment, which has been passed by the Legislature, and awaiting presidential approval reads: "The Executive Governor of the Central Bank of Liberia and members of the Board of Governors shall be prohibited from contesting political office(s) while serving in their respective offices and shall not be qualified to contest any electable office within three years consecutively after the expiration of their tenure and in his/her resignation from the Central Bank of Liberia."

Since the action by the Legislature, condemnations have come from several Liberians including lawyers, political activists and the student community, terming the Legislature’s action as gross abuse of legislative power and violation of articles 11, 18, 20 and 21  of the Liberian constitution. They have called on President Ellen Johnson Sirleaf to veto the Amendment.  Yet still, other Liberians have hailed and welcome the Amendment, terming it as an “energized legislative awakening” to fight waste of public resources and control unfair advantages in competitive politics.

The Amendment has already being passed and presented to the President for signature. An overwhelming majority of lawmakers is in favor of the Amendment. Therefore, it is highly likely that, even if the President of Liberia were to veto the Amendment, as being requested by some Liberians, two-thirds majority of the Legislature would still ensure that the Amendment becomes Law.
As may  likely be the case, this situation holds possibility to create perfect pretext for constitutional challenge before the Supreme Court of Liberia, should the Amendment pass into law. Whether or not the Supreme will sustain or strike down the Act is a decision yet to be made.  In the face of this confusion, it is important that the Liberian National Bar Association provides a ‘guiding opinion’ on the constitutionality of the legislative action before the case is ever brought before the Supreme Court. For now, the Supreme Court cannot issue advisory opinions, and will not do so until the issue is brought before the Court under the “case and controversy” doctrine.

Additionally, individual lawyers in and outside Liberia,  and students of Constitutional Law at the Louis Arthur Grimes School of Law need to get involved and clarify some of the confusion permeating prevailing public perception.  According to belief and information, Cllr. Charles Walker Brumskine, Cllr. Cyril Jones and Cllr. Tiawan Gongloe are three of Liberia’s best Constitutional Lawyers. Gongloe has already declared that the Act violates the Equal Protection Clause under Article 11 (c) of the Constitution , rightly or wrongly. We look forward to Brumskine and Jones to educate the public as well.

My layman attempt here is to shed light on what I believe to be the application of the law as it exists today, supported by relevant statutory and case law.  In this piece, I argue that the Amendment restricting CBL officials from participation in political activities, until three years after their tenure, is in furtherance of government’s legitimate public policy interest, is supported by well-established constitutional case law, and does not in anyway violate the Equal Protection and Due Process clauses of the Liberian Constitution. Furthermore, ex post facto and bill of attainder doctrines  are inapplicable to the facts and circumstances of the Amendment. In short, the Amendment is constitutionally permissible.

All legal citations are provided in the text of the document, and other references are found in the footnote at the bottom of the pages.

 In keeping with Liberia’s Reception Statute, as found in 15 LCL revised, Ch. 3 §40 (a) and (b), I have used case law from courts of the United States to the extent that existing decisions of the courts of Liberia are inadequate or non-existent. In Liberia, when the statutes and existing decisions of Liberian courts are inadequate or non-existent to address any issue of law and rules, case law from courts in England and United States of America, is, when applicable, considered Liberian laws. TRADEVCO v Mathies et al, 39 LLR 637, LRSC 32  (1999); MPC et al v  National Election Commission et al, LRSC 1 (2011); Houssenini v Jawhary, LRSC 44 (2005); RL v Leadership of LNBA  et al, 40 LLR 635, LRSC 26 (2001; RL v Leadership of LNBA et al, 40 LLR 635, LRSC 26 (2001); Fallah  v RL, LRSC 14 (2011);  Arnous et al v Firestone Plantations Co., LRSC 8; 37 LLR 785 (1995

B. Controlling Questions

Basically, this little write-up addresses four questions:

1. Whether the Amendment, which restricts a named group of CBL officials from participating in political activities, violates the Equal Protection Clause, as provided for under Article 11 (c) of the Liberian Constitution, which states that “[a]ll persons are equal before the law and are therefore entitled to the equal protection of the law”?
2. Whether the Amendment deprives Governor Mills Jones and his deputies of their right, liberty, property or privilege without due process as contained in Article 20 (a) which states that [n]o person shall be deprived of life, liberty, security of the person, property, privilege or any other right except as the out come of a hearing judgment consistent with the provisions laid down in this Constitution and in accordance with due process of law?
3. And if the Amendment is found not to violate Article 11 (c), and Article 20 (a) of the Liberian Constitution, whether the Act would be overcome by restrictions against enacting  ex post facto laws and bill of attainders, as provided for under Article 21 (a) of the Liberian Constitution?
4. And, even if the Amendment does not violate any of the above constitutional provisions, does the Liberian Legislature have the power to restrict public officials from political participation, where such participation subjects or is likely to subject public financial resources to the likelihood of abuse by the public official; and where such political participation has the likelihood to disadvantage other Liberians with political interests who are not similarly situated to supervise public resource?

Because claim of Article 18 (equal work and equal pay) violation seem irrelevant to the issue under discussion, any discussion on Article 18 would seem superfluous (needless).  I have therefore decided not to spend any research time on Article 18, even though the argument was raised by some students in support of Governor Jones.  

C. Summary of my Argument

1. Equal Protection

The Amendment to the Act Creating the Central Bank of Liberia, which restricts the political activities of its governors and deputy governors, does not violate the Equal Protection Clause of the Liberian Constitution, because the restriction does not legally discriminate against the governors and his deputies, nor impair their fundamental human rights in any way – two basic requirements which are determinative of Equal Protection violation. To be legally discriminatory or impair fundamental human rights, and thus violate the equal protection clause of the Constitution, constitutional law requires that the legislature’s action must have:

1. Classified against the bank officials on the basis of their race, alienage, national origin, or violated their fundamental right including the right to vote, travel or privacy (provided the legislative action is not seeking to achieve a compelling public policy interest of the government, and the action of the legislature is not narrowly tailored to achieve the government’s interest); or
2. Discriminated based on the gender of  the bank officials (provided the legislature’s action against the bank officials is not substantially related to an important government’s interest.); or
3. Discrimination based on education, age, disability and welfare status of the bank officials (provided the legislature’s action is not rationally related to any conceivable government interest).

As can be expected none of the legally cognizable rights named above is present in the case of the CBL officials. There is no discrimination against them on the basis of race, gender, alienage or national origin; neither are they been restricted from travel, from voting, or from marriage. Even if the CBL officials claim that their right to vote includes the right for them to be voted for, this argument would be fatally flawed, as no one has right to be voted for. Assuming, but not admitting, that the CBL officials would claim political participation as a right, and that the legislative Amendment violates that right, I submit that their claim on this issue may seem valid. However, they absolutely have no right to employment at the CBL, neither is their right to political participation inextricably bound to the privilege of employment at the CBL. They may either chose to forego their employment in order to enjoy their right to political participation; or wait three years after their employment to enjoy political participation.

Furthermore, even if the statute restricting the political activities of CBL officials violated any of the rights listed above, the Amendment would still be justified to be constitutionally valid because it would be found to serve legitimate government interests, including an interest in the efficiency, integrity, discipline and loyalty of public officials; and above all the interest to protect public resources from influencing electoral politics, and destroying leveled-playing field in competitive politics.  

 In the United States, a federal court construing a Louisiana statute ruled that a “Louisiana statute which restricted the right of judges to become candidates for non-judicial office, either in party primaries or in general elections, was justified by the state's interest in maintaining the integrity of the state judicial system, held that the restriction imposed under the statute did not violate the equal protection right of judges.  Even though the above reference involve judicial officials, the same public policy interest rational controls for executive officials. In  our case, the Liberian legislature has a legitimate, compelling, significant and important state interest to protect the integrity of the country’s banking sector, and prevent Liberia’s competitive politics from unfair advantages – in which public officials in charge of public finances could be preferred by voters because of the public officials ability to dish out public money ( in the form of loans) to potential voters.

Additionally in several cases on point, the United States Supreme Court has held, on multiple occasions, that statutes which prohibited or restricted named-or-ascertainable-group of public officials from engaging in political activities did not violate the officials’ equal protection guaranties; reasoning that to treat such public officials (like in our case - the governors of the CBL) different from other public employees (like Finance, Maritime, LPRC or NPA officials) constitute a reasonable classification. Emphasis mine.

Finally, the US Supreme Court found that an Oklahoma statute prohibiting political activities by state civil service employees did not violate the equal protection clause by reason of its applicability to classified service employees while leaving unclassified personnel free from such restrictions. “The state legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated, adding that a state can hardly be faulted for attempting to limit the positions upon which such restrictions are placed.”

1. Due Process

First, it is well established in United States Case law that a statute, which prohibits public employees from using their official authority or influence to coerce political action, or interfere with an election, did not deprive the affected employees of their right without due process.

Second, the legislative Act does not deprive the CBL officials of any right or privilege. Admittedly, it is a privilege to be governor and deputy governors of the CBL, just as any other qualified Liberian. Likewise, the CBL officials have right to be qualified and contest electable position. But they do not have any constitutionally guaranteed right to contest any electable office while serving as governors or deputy governors or immediately upon leaving office, or immediately after resignation. It is a matter of public privilege bestowed by the state, to enable an official to occupy one position of public trust and at the same time contest for public office, especially where the former position involves supervision of public funds that can be spent at will.  The state has the right to take this privilege away.

And because the CBL officials are entitled to the privilege to work both at Central Bank and contest for electable office (if and when permitted by the state), the current legislative action DID NOT fully bar the officials from contesting for public office. Rather, the action of the legislature in fact allows the CBL officials to seek public office, but they may ONLY be able to do so three years after the expiration of their tenure at the CBL. This action serves a legitimate and important public policy interest of preventing public money from abuse. 

Lastly, here, the element of deprivation is lacking. The legislature did not deprive the bank officials. There is a literary and legal difference between depriving and person of a right, and requiring him to do or achieve certain things before enjoying that right. For example, marriage is a fundamental right. But girls are required to reach the age of 18 before contracting marriage. Driving is a privilege, which others may argue, is guaranteed under the due process clause of the constitution, if the term “privilege” is construed to be all encompassing. However the Vehicle and Traffic Law puts the driving age at 18 years.  Those denied early marriage until 18 years, and those not issued drivers license until age 18 years can yell but will not succeed on claims of equal protection and due process violations, because there is a legitimate state interest served by the restrictions on marriage before 18 years and acquiring driver’s license before 18 years.  Depriving a citizen of the privilege to drive a vehicle is different from requiring him to reach the age of 18 before acquiring driver’s license.

In the case of the CBL officials, they are not deprived of any privilege, they are only required to comply with the time requirement (political cost) that goes with accepting appointment as governor or deputy governors. They may choose to resign three years to their tenure if they wish to contest electable position.  The legislative ban does not, in anyway, deprive the officials of the privilege but rather extends the time-frame and widens the gap between the time the officials must be able to dish out public money to influence potential voters, and the time they must actually take part in elections.  The fact that the legislature does not include officials of the Ministry of Finance and other agencies of government supervising public money is legally irrelevant. They legislature may so choose to do so at anytime.

1. Ex Post Facto and Bill of Attainder

It is utterly out of mark and clearly unthinkable that any claim of Ex Post Facto law and Bill of Attainder violation will suffice either by construction, analogy or inference.  An ex post facto law only covers, retroactively, a punitive effect of a crime. In the CBL official’s case, no crime is involved so Ex Post Facto argument is inapplicable. The legislative Amendment is not punishing the CBL officials for any acts they committed previously, which acts were legal at the time the acts were committed, but are now being declared illegal – so that the CBL officials need to be punished retroactively (for the past acts).   Similarly Bill of Attainder applies to named individuals or easily ascertainable members of a group in such a way as to punish them without judicial trial. The bank officials seem to have a little bit of grip here because the act identifies them as named individuals and they are ascertainable members of the bank’s leadership.  But certainly the bank officials are not being punished, they are only been regulated and restricted, a permissible practice under the law.  Spending additional research time on this issue is also needless and superfluous because of its apparent irrelevance to the issue at bar.

1. Legislature’s Lawmaking, Regulatory and Oversight Power

The Governor of the Central Bank is appointed subject to the consent of the Liberian Senate, a branch of the Legislature. The Legislature has the power to make any law that is proper and necessary for the proper execution of the mandate of the Central Bank of Liberia. The power of the Legislature includes the power to prescribe a code of conduct for officials of the Central Bank of Liberia to restrict their activities when such activities seem to run contrary to government’s public policy interest, or constitute conflict of interest.

No doubt, the Central Bank and its officials owe duty to the Liberian people through the legislature. The Central Bank is the banker, depository and fiscal agent of the government and people of Liberia, and as such, its officials owe fiduciary duty of trust, integrity and loyalty to the people of Liberia, represented by the Legislature. The duty of loyalty and integrity includes a requirement to refrain from acts and conduct that run contrary to the public policy interest of the government. Understandably, it is the public policy of the Government of Liberia to ensure that those public officials serving as trust of public resources are prohibited from using the resources to gain comparative advantage against other Liberians, in achieving political leverage in a way and in such a manner that undermines competitive politics and create unleveled playing field. This, the legislature did in the present case.

D. THE ARGUMENT

1. THE LEGISLATURE HAS THE POWER TO RESTRICT PUBLIC OFFICIALS FROM PARTICIPATING IN POLITICAL ACTITIVITIES IN ORDER TO SERVE A SIGNIFICANT GOVERNMENT INTEREST; AND SUCH RESTRICTION DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION, NOR APPLY TO DISCRIMINATORY ACTIONS THAT ARE SO PROHIBITED.

1. A statute restricting political activities of public officers or employees does not violate the Equal Protection Clause of the Constitution.                                                                                                                                                       

Statutes which prohibit the political activities of public officials do not violate the equal protection clause simply because they are applied against a classified group of public officials while other public officials in similar category are exempted from such restrictions. Broadrick v Oklahoma, 413 US 601, 37 L Ed 2d 830, 93 S Ct 2908 (1973).  Elder v Rampton, 360 F Supp 559, affd 413 US 902, 37 L Ed 2d 1020, 93 S Ct 3062 (1972), State ex rel. McKittrick v Kirby, 349 Mo 988, 163 SW2d 990 (1942), State ex rel. Gonzales v Manzagol , 87 NM 230, 531 P2d 1203 (1975), Haines v Commonwealth, State Civil Service Com.  58 Pa Cmwlth 640, 428 A2d 759 (1981)

In Broadrick, a statute prohibited a named group of public officials… from “becoming  members of a political party's committee or of a political club, or taking part in the management or affairs of any political party or in any political campaign, except to express an opinion and to cast a vote. The US Supreme Court found that an Oklahoma statute was constitutional and did not violate the equal protection clause.  Said the court: “the state legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated, adding that a state can hardly be faulted for attempting to limit the positions upon which such restrictions are placed.”

In Elder, the court held that statute that prohibited political activities by state-merit-employees but which excluded from its restrictions approximately 9 percent of the personnel directly employed by the state did not deny equal protection to those who came within the terms of the statute. Stating that the “merit of the claim depended on whether there was an appropriate governmental interest suitably furthered by the differential treatment. “

The court in McKittrick held that a government restriction prohibiting public employees from taking an active part in political campaigns, serving as officers of political organizations, circulating political petitions, working at polls, and the like, and providing further that such employees could become candidates for public office only after resigning their employment, did not violate the equal protection clause of the Constitution.

In Manzagol, the court held that a statute which prohibited certain type of classified employees from holding political office,… from becoming officers of a political organization during their employment did not deny civil service employees equal protection of the law

In Haines, the court held that a statute which prohibited employees from engaging in political activities did not create unconstitutional classifications between those who were in the classified service and those who were not. Stating that it was “undisputed that the state had a legitimate interest in promoting the efficiency and integrity of civil service employees by insulating them from political pressures. The court stated that it believed that such a state interest was also sufficient to support the statute's differing treatment between employees.”

In each of these cases, the contention has been that the proposed statutes deprived petitioners of liberty, property or [privilege] interest without equal protection of the law.  In all cases, courts have maintained that there is no liberty or property interest in a position of employment

1. The Equal Protection Clause of the Liberian Constitution applies only to constitutionally cognizable discriminatory government’s actions, and government conduct that impair fundamental rights; such action is not present in the CBL case

All persons are equal before the law and are therefore entitled to the equal protection of the law. Lib. Const. Art. 11 (c).  In interpreting the constitutional provision, the Supreme Court of Liberia said “Equal Protection of the law means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and in their pursuit of happiness.” RL v Leadership of LNBA et al LRSC 26; 40 LLR 635 (2001). Similarly, the Court said  “Equal Protection of the law means that no person shall be subjected to any restriction in the acquisition of property, the enjoyment of personal liberty, and the pursuit of happiness which do not generally affect others; that no person shall be liable to others or greater burdens and charges than such as are laid upon others; that no greater or different punishment is enforced against a person for a violation of the law.” i.d . However, in Center for Law & Human Rights Education et al v MCC et al LRSC 20; 39 LLR 32 (1998), the Supreme Court said that  “We find that the exercise of municipal powers to promulgate regulations and/or exercise police power to regulate a class is not a violation of the equal protection clause of the Constitution”.  It is evident here that the Liberian Supreme Court was taking cue from the numerous decisions in American case law.

In all other cases in which the Court applied the Equal Protection analysis, the Court found equal protection violation in deprivation of someone’s liberty by prolong detention without hearing, Feleku v RL, LRSC 49; 30 LLR 189 (1982) 1982), denial of right to bail, Zuo v Morris et al, LRSC 32; 37 LLR 604 (1994), substantive right not affected, and opportunity provided to seek redress. Wolo v Wolo, LRSC 12; 5 LLR 423 (1937), Fazzah Bros v Collins,  LRSC 1; 10 LLR 261 (1950), guarantee of fair and impartial trial, Tolbert v RL, LRSC 33; 30 LLR 3 (1982), right to be present in court, Davye et al v Badio et al, LRSC 11; 38 LLR 241 (1996). The cases do not mention whether or not, restricting the political participation of public employee violate the Constitution. So we turn to the United States courts for guidance.

In cases providing Equal Protection interpretation, the United States Supreme Court and lower federal courts found equal protection violation in discrimination against same sex couples, Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), only when there is no legitimate state interest, Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006),  restriction on the right to procreate, Skinner v. Oklahoma, 316 U.S. 535 (1942).

In addition, the US Supreme Court identified, as potential Equal Protection violation, discrimination based on race, Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986), based on alienage, Bernal v. Fainter, 467 U.S. 216, 104 S. Ct. 2312, 81 L. Ed. 2d 175 (1984), Nyquist v. Mauclet, 432 U.S. 1, 97 S. Ct. 2120, 53 L. Ed. 2d 63 (1977), based on national origin, Jana-Rock Const., Inc. v. New York State Dep't of Econ. Dev., 438 F.3d 195 (2d Cir. 2006), fundamental right violation, Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996), based on gender, United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996).

Case law in Liberia and United States have not been able to find statute restricting public officials from participation in political activities as violation of the Equal Protection Clause. In fact, the US Supreme Court held that claim of equal protection violation (like in the case concerning only the CBL officials), under which plaintiff alleges that she has been treated differently from other similarly situated persons without any rational basis, but does not allege that differential treatment was due to plaintiff's membership in particular class, does not violate equal protection and is not cognizable in public employment context. Engquist v. Oregon Dep't of Agr., 553 U.S. 591, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008). 

1. A STATUTE WHICH RESTRICTS OR PROHIBITs PRUBLIC OFFICIALS FROM PARTICIPATION IN POLITICAL ACTIVITIES DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE CONSTITUION.

a). Amendment does not deprive CBL officials of any life, liberty, property or privilege interest; claim of due process violation do not extend to regulatory restrictions to serve public interest.

No person shall be deprived of life, liberty, security of the person, property, privilege or any other right except as the out come of a hearing judgment consistent with the provisions laid down in this Constitution and in accordance with due process of law. Lib. Const. Art. 20 (a). The Supreme Court of Liberia consistently maintained that due process is “the law of the land, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial." Wolo v Wolo, LRSC 12; 5 LLR 423 (1937). Thus to deprive any official of office or to deprive any person of his property or other right, without notice, an opportunity to appear and cross-examine witnesses adduced against him, to produce witnesses in his own behalf, and to be heard in person, by counsel or both, is to deprive such official of office, or person of his property or other rights, without "due process of law," and is therefore unconstitutional” Wolo v Wolo [1937] LRSC 12; 5 LLR 423 (1937). And since the Liberian Supreme Court has not define  the term “deprive, we turn to the courts of New York for guidance. To “deprive” means to take, altogether, a seizure, dispossession of the owner. Sh.trpless v. Philadelphia, 21 Pa. 1G7, 50 Am. Dec. 759; Wynehamer v. People, 13 N. Y.407; Munn v. People, 09 111. 88; Grant v. Courter, 24 Barb. (N. Y.) 238.

There is nothing in the above legal citations that prevent or precludes the legislature from enacting regulatory amendments. Such amendments are only unconstitutional if and when they seize, dispossess or take altogether the life, liberty, privilege and property interest of a person without a court hearing. In the case of the CBL officials, the legislative amendment DID NOT take (altogether), seize or dispossess them of anything. It only restricts  the time when (prescribed time frame) they must seek voters endorsement after dishing out public money to the same voters.

b) Amendment which prohibits public officials who use their official authority or influence to coerce political action, or interfere with election, do not deprive the affected employees of their liberty and property without due process
“A statute which provided that no person holding office or employment in the classified service was to become a candidate for elective office or take an active part in any political campaign or organization, or circulate or seek signatures to any petition provided for in any primary or election law or act as a worker at the polls, or distribute badges, colors, or indicia favoring or opposing a candidate for election or nomination to a federal, state, county, or municipal public office was held constitutional and did not violate due process requirement. Swinney v Untreiner (1973, Fla) 272 So 2d 805, cert den 413 US 921, 37 L Ed 2d 1043, 93 S Ct 3064. A city charter provision which prohibited civil service employees from being candidates for nomination or election to any public office was clear and unambiguous and therefore not unconstitutional for due process violation. Mortillaro v Louisiana, 356 F Supp 521 (1972)

In Swinney, the statute specifically set out the prohibited political activities, the court declared, adding that there could be no doubt about what constituted prohibited activity within the terms of the statute.

1. Because of Government’s Public Policy Interest, Multitudes of Federal Employees are Prohibited from Political Activities under the United States HATCH Act.

The United States HATCH Act prohibits certain federal executive branch employees from engaging in partisan political management or partisan political campaigns. There is no reason why similar public policy rational should not be applied to Liberia.

III. THE AUTHORITY OF THE LEGISLATURE TO CONSENT TO EXECUTIVE APPOINTMENTS AND PROVIDE OVERSIGHT ON EXECUTIVE APPOINTEES INCLUDES THE POWER TO REGULATE GOVERNMENT OFFICIALS’ CONDUCT -  WHICH RUNS CONTRARY TO THE PUBLIC POLICY INTEREST OF THE STATE, ENCOURAGES CONFLICT OF INTEREST, STIFFLES COMPETIVE POLITICS ON A LEVELED PLAYING FIELD, AND OFFERS UNFAIR POLITICAL ADVANTAGE TO MANAGERS OF PUBLIC FINANCIAL RESOURCES.

a). The Legislature has the power to consent to, and provide oversight over high-level presidential appointees, including the appointment, oversight and regulation of the governor and deputy governors of the Central Bank, before and after such appointments become effective

The President shall nominate and, with the advice and consent of the Senate, appoint high-level officials in government. Lib. Const. Art. 54. Each of the four Governors [of the Central Bank] shall be appointed by the President on a staggered-term basis, subject to confirmation by the Liberian Senate. National Bank Act, 6 LCLr. Sec. 12.  Like the United States Congressional oversight power, Liberian Legislative oversight authority is implied and not enumerated in the Constitution . Even though oversight responsibility is implied, it has traditionally allowed the legislature of Liberia, as in the case of the United States Congress to “review, monitor, regulate and supervise government agencies, programs, activities, and policy implementation by the agencies of the Executive Branch. Consistent with its lawmaking, oversight and regulatory authority, the legislature of Liberia prohibits certain operations of the Central Bank to ensure that public resources are not disadvantaged, abused and misused. National Bank Act, 6 LCLR. Sec. 44. Additionally, pursuant to its regulatory oversight and in a bid to protect the public policy interest of government, the legislature prohibits officials of the central bank from engaging in actions which have semblance of outside interest and  conflict of interest.  i.d at  Sec. 11 (2) (3),17

The power of the legislature to consent (through confirmation) to the appointment of CBL governors is undisputed and unambiguous. Similarly, the oversight and regulatory authority of the legislature over the CBL and its officials requires no contestation in this instance. Clearly, the regulatory and oversight authority of the Legislature extends to prohibition against CBL governors from engaging in actions that suggest conflict of interest or promote conflict of interest.  

However the construction of the statute does not explicitly extend the regulatory and oversight authority of the legislature to restrict CBL officials from seeking elected office while they are in the employ of the Bank or within three years after their tenure, or resignation. Even though the Constitution and statutes do not explicitly give the Legislature any such authority, the Constitution and statutes also do not prevent or preclude the legislature from effecting such restriction against CBL officials.  What is not explicitly prohibited by the law is implicitly permissible under the law.

By analogy and inference, the fact that the legislature has regulatory authority to prevent CBL governors from engaging in outside interest that may subject public resources to possible abuse, it goes to say that the legislature is not precluded from preventing CBL officials from engaging in political activities while in office or within three years consecutively thereafter, to the extent that the legislature may deem such political activities as subjecting or having the potential to subject public financial resources to abuse. It is an elementary principle of Constitutional Law that the legislature may enact any law so long as such law is not expressly prohibited by the Constitution, and so long as such law is not inconsistent with any of its provision. Thus, the current legislative Act banning CBL governors squarely falls within the Legislature’s lawmaking, regulatory and oversight powers and authority.

b).  It is within the lawmaking power of the Legislature to make any law that is proper and necessary to enable public official to execute the duties of their respective offices in a way and manner that is not against public policy, and constitute conflict of interest.

The Liberian Constitution provides that the Legislature has the power to make all other laws which shall be necessary and proper for carrying into execution … all other powers vested … in any department or officer thereof. Lib. Const. Art. 34 (d)(l). Furthermore, the Constitution prohibits public officials …”whether elected or appointed to any public office, [to] engage in any other activity which shall be against public policy, or constitute conflict of interest. Lib. Const.  Art. 90 (a).  In the event any public official acts contrary to public policy and engage in conflict of interest, “[t]he Legislature shall, …prescribe a Code of Conduct for all public officials and employees, stipulating the acts which constitute conflict of interest or are against public policy, and the penalties for violation thereof.”  Lib. Const. Art. 90 (c)”. According to the Free Online Dictionary, conflict of interest arises when a “public official or fiduciary who, contrary to the obligation and absolute duty to act for the benefit of the public or a designated individual, exploits the relationship for personal benefit” .When such situation arises, the constitution requires the legislature to formulate and promulgate code of conduct which includes “set of conventional principles and expectations that are considered binding on any person who is a member of a particular group.”

Public office in Liberia is a public trust, Lib. Const., Art. 97 and public officials are fiduciaries for the people they serve. Katz v. Brandon, 156 Conn. 521, 535, 245 A.2d 579, 587 (1968); County of Cook v.Barrett, 36 Ill. App. 3d 623, 627, 344 N.E.2d 540, 545 (1975). As fiduciaries, public officials are held to a high standard of conduct, which must always be guided by rules of good faith, fidelity, and integrity. Trist v. Child, 88 U.S. 441, 450 (1874); Terry v. Bender, 143 Cal. App. 2d 198, 206, 300 P.2d 119, 125  (1956).   In Liberia, the 1986 Constitution prohibits public officials  (elected or appointed) from … misuse of government resources, …". Lib. Const. Art. 5 (c); engaging in acts against public policy, …and shall not benefit… directly or indirectly, on account of any duty required by Government. Lib. Const. Art. 90 (a) and (b).

The Central Bank is the banker, fiscal agent and advisor to the Government of Liberia, and its officials owe fiduciary duty of trust and loyalty to the public. National Bank Act, 6 LCLR. Sec. 39. As fiscal agents of the Republic, governors and deputies of the Central Bank subscribe to an oath of fidelity. National Bank Act, 6 LCLR. Sec. 18. Consequently they owe fiduciary duty of trust and loyalty to the Liberian public. Under the agency theory, CBL officials are agents of the principal (the Government) elected by the people, and are therefore amenable to the people whom they serve. State ex rel . Nimon v. Village of Springdale, 6 Ohio St. 2d 1, 4, 215 N.E.2d 592, 597 (1966). Clearly, the above legal authorities have established that the legislature has the authority to safeguard Liberia’s public policy interest, and combat real or potential conflict of interest.

Here, Governor Mills Jones and his deputies are public officials. They are required not to act contrary to public policy, or engage in acts that promote conflict of interest. Even though not explicitly authorized by the Act creating the Central Bank, Governor Jones has orchestrated a loan system that targets potential voters throughout the country, and he has even received elaborate honoring programs, and rousing welcomes (from potential voters who are beneficiaries of his loan scheme) with banners and placards depicting political pro-Jones slogans (see, Frontpage Africa, http://www.frontpageafricaonline.com/index.php/politic/736-jones-mystique-conspiracy-clouds-2017-presidential-talk), and reminiscent of the triumphant entry of Jesus Christ into Jerusalem, and the 1996 entry of rebel leader Charles Taylor into Monrovia.  Through patronage, university students were seeing wearing solidarity t-shits during the funeral of Governor Jones’ mother. Liberian officials are typically noted for dishing out state resources to groups for political premiums.

As Governor of the Central Bank of Liberia, Dr. Mills Jones who according to information and belief holds a PhD in Education and not in Banking, Finance or Economics, has a professional interest to ensure that the principal goals of his office are to protect the financial resources of Liberia and serve the public trust. By the way, the true educational status of Dr. Jones could not be verified as the Governor has taken down his profile on the Central Bank website. (see http://www.cbl.org.lr/content_main.php?sub=profile, retrieved on February 22, 2014 at 21:11 US Eastern Time).

However, the Governor’s professional interest to safeguard Liberians’ financial interest has the likelihood of being unduly influence by his political adventurism, and could undermine his professional judgment in the financial sector of Liberia. By his appearance at events that have characteristics of political mobilization, coupled with news reports (yet to be denied) that the Governor has ambition to contest for Liberia’s presidency in 2017, the Governors’ maneuvers suggest motives  for political promotion which may render him to favor (in the granting of loans) individuals and regions which are likely to give him votes in 2017. This action by the Governor is not wrong in itself. However, it is objectionable because its  burden on government’s public policy ( of creating level-playing field for all political contestants) substantially outweighs the privilege of the Governor to contest for elected office while serving at, or immediately after serving at the CBL. I concede that it is the right of the governor to contest for electable office, but it is not his right to contest for such office while serving as official of the central bank. This is a matter of privilege to which he can mount no legal claim.