The Sie-A-Nyene Gyapay Youh Bench Has A Take-Off Moment in the Chairman Martins Case, Will It Seize It?

The Perspective
Atlanta, Georgia
November 16, 2022

Sie-A-Nyene Gyapay Youh

Liberia has a new Chief Justice, a lady, and she breathes fiercely. Chief Justice Youh promised one thing at both confirmation and induction: that as the statue that guards the Temple of Justice in Monrovia her bench will be blind as to whosoever comes, justice will flow freely. “I am renewing my commitment to continue to dispense justice without fear and favor…” she stated at the opening of Liberia’s apex court last month.

Prayers answered! Chief Justice Youh has barely sat down then comes a case that is pregnant with political overtones as it involves the workings of the legislature. The Chairman of the Liberia Anti-Corruption Commission is challenging the constitutionality of the Amendments of the Act creating the entity which amendment requires him to re-apply for a job he already holds as a tenured officer whose removal must be for a cause.

The former prosecutor, Kla Martins, current Chairman of the anti-graft institution has few years remaining on his mandate as per Section 5.4 of the Liberia Anti-Corruption Act of 2007 and he now argues that the amendment requiring him to re-apply for a job for which he was appointed, confirmed, and commissioned constitutes a constructive removal. And he now pleads that he can only be removed for a cause through conviction by a court, not by an amendment.

Chairman Martins is not only claiming that the amendment violates his rights as it despoils him of accrued vested interests under the Act but critically also raises the pertinent constitutional issue of ex post facto law prohibition in the Liberian Constitution. In other words, he is simply inquiring of the Youh Bench as to whether a law, newly made, can adversely affect a right lawfully gained under the same statute when the removal criteria have not been met;  and further, whether such action does not violate Articles 20, 21 & 25 of the constitution of Liberia since his incumbency accrued rights to him personally as a contract of tenure was consummated.

This presently brings the Youh Bench to the issue of precedent that relegates certified constitutional issues from the Chamber Justice to the full bench to that of statutory issues in many opinions of the court.  It is worth noting that while Liberia has enjoyed expansive democratic growth as results of repeated democratic elections since 2005 and the legislature is asserting its role in the governance of the country however the judiciary seems cast in the past as there is a tendency to use case laws from oppressive undemocratic eras in our history like Massaquoi vs. the Republic, 1933 and LBDI vs. Holder, 1981 to evade the apex court tackling contemporary constitutional controversies.

Paradoxically the court has repeatedly overlooked the context that Justice Cephus Mabande penned the LBDI Opinion in 1981; at that time the constitution of 1847 had been abrogated by the junta that overthrew President Tolbert on April 12, 1980, and Liberia was governed by military decrees issued after the putsch.  An astute jurist who had advocated the wearing of traditional African shirts and gowns to court, Justice Mabande knew that the People’s Supreme Court was not the same as the constitutional supreme court of Liberia since the constitution was abrogated.

Clearly, the absence of the vital overarching tapestry of the constitution by the action of the junta the justices of the so-called People’s Supreme Court wisely set the rule to mitigate the grave absence thus the primacy of statutes and procedures before constitutional issues in the LBDI Case. Now we have a worrisome legal enigma that unlike in 1981 we are fully under a constitution yet the apex court instead of tackling constitutional issues would cite the junta era precedent to avoid rendering an interpretation of the constitution ignoring the fact that the jurists on the makeshift apex court were engaged in legal creativity.

In 2010 and 2011 the Lewis Bench was tasked to determine whether a joint legislative resolution meets the constitutional requirement of a constituency threshold number as dictated by Article eighty. Earlier in 2009, the Liberty Party challenged the appointment of the Major of Zwedru City as unconstitutional claiming it violates the statute of the city and the constitution; and also claimed that it gives additional powers to the president more than that envisaged by the framers of our constitution.

It is important to note here that Article eighty mandates the legislature to set a specific number as the successor to the 20,000 persons per constituency in the constitution. This requirement was to meet a core democratic standard, to quote the constitution, “…so that every constituency shall have as close to the same population as possible…” The joint resolution fundamentally failed as it did not set a number, yet the court declared that to interpret Article eighty was a political question relying on Massaquoi vs Republic of 1933! But this same Lewis Bench dared an opinion in Speaker Snowe’s removal which universally is the ultimate political question; so Snowe resigned realizing that the court lacked the power to enforce its ruling – it could not compel lawmakers to withdraw a vote of no confidence in him as speaker.

The astounding irony in the city major case is that the most vilified President, Charles Taylor conducted mayoral elections in 1999 consistent with laws; but the much-glorified President, Ellen Sirleaf government successfully moved the court to grant her the power to appoint majors. Today the legislature has given statutory strength to the judicial law of the Lewis Bench and its far-reaching ramification on our democracy is self-evident – the all-powerful presidency is resurrected from the grave of the first republic by judicial fiat.

Thus, the impact of two major decisions by the Lewis Bench on our nascent democracy was to take huge steps backward. The court granted powers to the president to appoint all majors thereby extending the pervasive control of the presidency by revoking the election clauses in all city statutes in Liberia, and by the threshold cases, the court also created unequaled electoral constituencies. As a result, we have constituencies with populations of over 100,000 while other constituencies have populations of 28,000 contrary to Article eighty standard.

My concerns are simple: when will the Supreme Court of Liberia have a rule that all constitutional issues that are certified by the Justice in Chambers must be addressed?  And why does the Supreme Court continue to sidestep constitutional issues that are duly certified by the Justice in Chamber when these were the reasons for the certification from the Chamber Justice in the first place?

Inarguably, Liberia is a true post-conflict nascent democracy that is experiencing vibrant growth in politics, economics, commerce, society and technology as well hence the need for concomitant growth in the interpretation of the constitution. The constitution as the organic law of the state is the foundation and superstructure of rule of law and good governance but whenever its interpretation in matters of politics, commerce, and all spheres of activities in the lives of the people is postponed from time to time indefinitely it tends to negatively impact the democratization process.

So, I am excited that the Youh Bench takeoff moment has arrived in the Martins case: it is established that the Justice in Chambers has ‘certified’ constitutional issues in this matter for the attention of the full bench under the new chief justice’s leadership. It is a fitting opportunity for the court to interpret the constitution and lay down the rule to govern the making of amendments by the legislature of the statutes that create autonomous public institutions such as LACC, particularly with regard to the rights of tenured personnel where the intended amendment affects employment contracts and rights.

Certainly, whether this bench will tackle the certified constitutional issues placed before them by their colleague in chambers or not will set the tone for the new judicial era: it can be new times in new tones or new times in old tones.

Worlea-Saywah Dunah served from 2006 – 2018 as a Member of the House of Representatives of Liberia and stood down in 2017, he served as the Chairman of the Judiciary Committee and Head of the Legislative Delegation to the ACP-EU Joint Parliamentary Assembly. Currently a Partner at Century Law Offices in Monrovia, Liberia since 2018. Email: saywahd@yahoo.com