REVISTING THE WAR CRIMES COURT DEBATE: NO CONSTITUTIONAL AMENDMENTS REQUIRED IN THE CREATION OF WAR AND ECONOMIC CRIMES COURT

Comments & Analysis By Cllr.  Sayma Syrenius Cephus, Esq., certified counsel, European Criminal Bar Association (ECBA), International Criminal Court (ICC), African Court on Human & Peoples’ Rights (ACtHPR), Arusha, Tanzania, and European Fraud and Complaisance Lawyers (EFCL)
   When I appeared before the 54th Legislature, two years ago to give an expert opinion on the possibility of creating War and Economic Crimes Court,  I first viewed my position at that time  and given the presence of diverse political interest, I strongly  contended that  a marathon  of constitutional  amendments  that would include articles 2, 27(b),  54(c ), 34( e) and 66  is required as critical   prescriptions for the establishment  of a War and Economic Crimes Court in Liberia.  My exposition, which I suspect was warmly applauded across the political divide was nothing but a sheer oversight of the enormity of the constitutional powers that the framers of the 1986 Constitution   have vested in the people of Liberia under Article 1. And so, after a careful review and analysis of my earlier   presentation before the Honorable Liberian Senate, including many other public circles, preferring the establishment of the Transitional Justice Commission (TJC) rather than a War and Economic Crimes Court, I am constrained, after a careful reflection, to correct some of the flaws and hasty generalizations contained in that exposition. This I believe will put me on the side of history when the moment of reckoning shall come.  The truth is, there are no constitutional amendments required for the establishment of War and Economic Crimes Court in Liberia. The framers of the 1986 Constitution have vested in the people of Liberia massive constitutional powers to do whatever they feel or want for their own benefit and safety. Article 1 of Chapter 1, titled: “STRUCTURE OF THE STATE”, expressly states: “All power is inherent in the people. All free governments are instituted by their authority and for their benefit and they have the right to alter and reform the same when their safety and happiness so require. In order to ensure democratic government which responds to the wishes of the governed, the people shall have the right at such period, and in such manner as provided for under this Constitution, to cause their public servants to leave office and to fill vacancies by regular elections and appointments.” Under this article, there are seven (7) direct powers and eight (8) supplementary powers vested in the power of Liberia for the smooth governance of the Liberian State and for their own wellbeing.
Under Article 1 of the 1986 Constitution, the Liberian people have:
1.                  All Power
2.                   Power to establish “All Free Governments” (are instituted by their authority).
3.                  Power to make the government to attend to their benefit and happiness. That benefit includes but not limited to their joy, satisfaction, enjoyment, celebration, their approval in any manner, form and shape as to how they should be governed, why, when, where, and under what condition;
4.                  Power to ensure democratic government; that power to ensure include but not limited to providing the requisite safeguards and guarantee to make the democratic space competitive and peaceful at all times;
5.                  Power to determine the government which responds to their wishes;
6.                     Power (the right) at such period to alter;  and that constitutional right include but not limited to the power to  remove,  change, set aside,  and scrap;
7.                   Power (the right)  to reform and that also includes but not limited to right to modify, upgrade, and strengthen in any manner form and shape for their well being.
These constitutional reforms and alterations processes  become mandatory  if the people expressly believe that their  (1)Safety and  (2) happiness are dependent upon them. The same Article 1 also grants unto the people the auxiliary (supplementary) power and right to:
1.      ( Power) to  “Cause their public servants to leave office;
2.       Power to “Fill vacancies by regular elections;  and that includes the right to  canvass freely for votes, debate critical issues, express their views freely without any hindrance, and hold accountable public officials on promises made,  among others;    and
3.       Power “To make appointments. i.e. appoint qualified and competent Liberian citizens and professionals with the requisite experience and vision to lead. These rights are auxiliary or supplementary to the extent that they are not directly exercised except through an electoral (Article 77(b)) or appointing process or in a representative capacity through the executive branch (Article 54).
When the people of Liberia institute a government for their own benefit and safety, they then have the unfettered and exclusive sovereign power and  right to alter and reform that very government when their “safety and happiness so require”.  The key words under Article 1 of the 1986 Constitution are:   “alter and reform”, which means the people have the right to alter or the right to reform their government. Democratic governments are governed by sound laws and orders for the benefit and safety of the people.  While a democratic “alteration” of a government by application of  law may require a constitutional amendment or change, pursuant to Article 91 of the 1986 Constitution, notwithstanding, a democratic “reformation” of a government under the same principle from all intents and purposes,  does not necessarily require any constitutional amendment or a change.  The emphasis  for the establishment of the War and Economic Crimes Court is placed on the process of “reforming” the law vis-a-vis the government to be broadminded–it  has nothing to do with “altering” the law or the government. Hence, the constitutional question of amending  Articles 2, 27(b), 54(c ), 34( e )  65, and 66, in my considered opinion  is imprecise, and legally  flawed,  to say the least.
I strongly submit that the  constitutional context in which the word “reform” is distinctly used in Article 1 of the 1986 Constitution, refers to, and is construed to mean   “ to adjust, modify, upgrade, and strengthen” –the law vis-à-vis the government. Although the words: “reform and alter”,   are literally synonymous in context but they are separate and distinct in their interpretations, prescriptions, and applications under Article 1 of the 1986 Constitution. For instance, a ratification of a treaty or any convention is considered as part of the reform process of incorporating and expanding our  Liberian laws; it does not require any constitutional amendments or changes of any key constitutional provisions to incorporate any treaty, convention and international agreement into our domestic laws.  Article 2 of the 1986 Constitution expressly states: “This Constitution is the supreme and fundamental law of Liberia and its provisions shall have binding force and effect on all authorities and persons throughout the Republic. Any laws, treaties, statutes, decrees, customs and regulations found to be inconsistent with it shall, to the extent of the inconsistency, be void and of no legal effect. The Supreme Court, pursuant to its power of judicial review, is empowered to declare any inconsistent laws unconstitutional.” A treaty or convention or decree already ratified by the legislature is, and cannot be considered to be inconsistent with the 1986 Constitution. Its ratification is intended for the expansion, adjustment and reform of our laws in order to conform to international judicial standards and best practices (Art.34 (f).
 That said, it is public knowledge that in 2004, the  leadership of the then  National Transitional  Government of Liberia (NTGL), which was the  constituted authority at that time, entered into, concluded and signed for and on behalf of the people of the Republic of  Liberia the Rome Statue that created the International Criminal Court Court(ICC). And during that same period, the Transitional Legislative Assembly (TLA) ratified and deposited the Rome Statute, thus incorporating it into the laws of Liberia. The object and purpose of that process was for the establishment of a War Crimes Court.  Therefore, the conduct of both the executive and legislative branches was consistent with the foreign policy objective of the Republic as in keeping with the Rome Statute(Art. 57). The conduct of the executive under Article 57 and the ratification of the treaty under Afrticle  34(f) of the 1986 Constitution by the legislature, has, in principle   confirmed and affirmed Liberia’s readiness to establish the War and Economic Crimes Court. The signing and ratification process  was  never challenged in any court of competent jurisdiction; hence, the Republic of Liberia had approved the establishment of a War and Economic Crimes Court as in keeping with the Rome Statute. The ratification process is part of the reform power vested in the people but this power is duly exercised or is being exercised by the legislature on their behalf.
For the sake of this argument, let us provide more clarity. The President of the Republic of Liberia under Article 57 of the 1986 Constitution is vested with the power to serve as the Chief Architect of Liberian foreign policy. Article 57 expressly states: “The President shall have the power to conduct the foreign affairs of the Republic and in that connection he is empowered to conclude treaties, conventions and similar international agreements with the concurrence of a majority of each House of the Legislature.” Now, a   government instituted by the people under Article 1 of the 1986 Constitution is headed by a   president, who, under Article 57, is “…empowered to conclude treaties, conventions and similar international agreements…”. And when these treaties, conventions and international agreements, are concluded and signed by the president, the legislature, pursuant to Article 34(f) is constitutionally mandated “to approve the selfsame treaties, conventions and such other international agreements which have been negotiated and signed on behalf of the Republic.” The power of the president is simply to enter into, conclude and sign all treaties, conventions and international agreements while the legislature as direct representative of the people is clothed with the power to approve and ratify all treaties(Art. 34(f).
 Now, the Rome Statute was   entered into, concluded and signed in 2004   pursuant to Article 57, and ratified by the legislature consistent with Article 34(f).  The purpose of executing that treaty by the government at  that time was for the benefit and happiness of the Liberian people.  By so doing, the government warranted, covenanted and committed the people of Liberia to the establishment of a War Crimes Court.  The reason for this is that the ICC is not a court of first instance; instead, it ought to be the court of last resort provided however, the governments is unwilling, unable or lack the will power to arrest and prosecute perpetrators of war crimes and crimes against humanity. The only legal impediment that the ICC faces is that it cannot exercise jurisdiction over war crimes committed in Liberia prior to the ratification of the Rome Statute in 2004. Besides, by ratifying the Rome Statute, the government unwittingly invoked the principle of complementarity, and this in my opinion, means the legal foundation for the establishment of a   War and Economic Crimes Court has been in existence from the conduct of the two branches of the Liberian government since 2004.  Therefore, the argument that the court cannot   be established at this time, in my earnest opinion,    is fundamentally flawed.   The actual argument is not that the court does not exist in principle by the conduct of both the legislative and the executive branches of the government in 2004 but whether actualizing its creation now in practice is expedient in the face of the current political volatility of the Liberian State.  The greatest fear is not political or economic. No, far from it.  The creation of the court in practice may trigger a serious national security crisis of immense proportion, and it has the potential to destabilize the Liberian state, undermine national cohesion, and to a large extent, re-factionalize Liberian state  on ethnic and political lines.  The court will be a recipe for division and instability and this will not be good for Liberia and the West Africa sub-region.   In the last generation, significant progress has been made in the areas of national reconciliation, reintegration and forgiveness–families, tribes and political rivals that were once on opposite sides of the political divide at each other’s throats are now united into common purpose(s) for political interests. There’s a new paradigm shift in the national politics of Liberia that incrementally favors changes through the ballot box by ushering in a new political climate of tolerance and coexistence, rather than through a retributive process.
Quite impressively, people who initially fought along tribal and factional lines are now fighting through political party lines—they are living together, institutionally reasoning together, with some running for public offices; while others have already been elected representatives of district and counties.   The wounds and scares of war have healed—the court will only help to re-freshen them.  Lest we forget, divisions initially formed on tribal and ethnic lines have been obliterated by the push to be one family looking after each other’s interests. There’s a new generation of voting age that was born either during after the war. This generation of Liberians does not know the painful history, or the terror narratives of the war; some were born unto former foes, rival tribes, and factions. How do we deal with this situation?   There’s no more name calling, and the ember of hatred of trying to truncate each other’s  right for political purposes no longer exists. The greatest challenge now is how will this new phenomenon of establishing a War and Economic Crimes Court that refreshes the healed wounds fit in?   How do you deal with the once fearsome  “Butt Naked” of the erstwhile Liberia Peace Council(LPC), who has been reincarnated on the proverbial  “Damascus road”,  and like Saul who later  became Paul, and is now dubbed as  Evangelist Joshua Blyee,  and is  winning  souls  for Christ’s kingdom?  Or better still, how do you deal with the case of Dr. George S. Boley, the former Liberia Peace Council (LPC) leader who is representing the people of Grand Gedeh in the House of Representatives?  Stretching the argument further, how do you deal with   Mr. Prince Y. Johnson, who is now the “political godfather”—a patriarch of Nimba County? The Mano and Gio nations, which are rated amongst the leading tribes in Liberia, revered and love him— they look  to him for direction and guidance politically.   Mr. Johnson was twice elected by his people in 2005 and 2011 as senator, and will again be elected in 2023. And because of the love he has for his people, he has built for them a university to mold the minds of Liberian youths.
 Moreover, many of the young men and women who will be or are attending the Prince Y. Johnson University are children who were either born during or after the war. How do you deal with war stories that will seem more of a fiction to this new generation of Liberians than the struggle for a progressive life— education?  The debate between the proponents of the court and the opponents is characterized by mixed-messaging. The supporters of the court are not interested in any form of real debate by looking at larger issue which is Liberia’s stability; instead, they have weaponized the debate to frighten key supporters of the government who are former warlords in order to render the government politically vulnerable in time for the ensuing 2023 elections.  On the other hand the government already obfuscated with the war crimes court drumbeat has lost focus—there’s no effective counter argument from the government for two basic reasons. First there’s an intellectual brain-drain to do battle the proponents of war crimes, and second, there is some degree of timidity to present any counter argument due to the enormity of the debate and the players involved.  Rather than saying the creation of the court poses a serious national security problem to Liberia’s stability as already outlined, the government contemplated or is contemplating a “Transitional Justice Commission”, which is more of a replica of the erstwhile TRC, only intended to buy time. 
 Therefore,  it is my candid opinion  that the great loser in a campaign of this sort will certainly be the current government. Its policy of political cooptation to dine and bed with people “perceived” as potential defendants in a possible war and economic crimes trials will crumble if it continues to play spectator to the debate. Of course, this will be a great victory for the campaigners of the court. And were that to happen, former   warlords will treat the government’s action as the greatest betrayal!
Further,  I hereby rescind my earlier  argument that a  Court of such a nature and character will rival the final arbiter doctrine  of the Honorable  Supreme Court of Liberia on all factual, constitutional and remedial issues whether by remedial process or on appeal under Article 66. This argument which was cleverly designed to evade a number of critical questions, during the questions and answers period at the Liberian Senate was absolutely groundless, and has no legal basis. The legislature having established the Court by the ratification of the Rome Statute in 2004 consistent with Article 34(f),  the final decision to create the  Court under Article 34(e ) by the 54th legislature   will simply conform to the   constitutional right vested in the people of Liberia under Article 1.   The court   will not be in any conflict with the powers granted the Supreme Court of Liberia under Article 66 of the 1986 Constitution;  it would  not be a court of a PARALLELL JURISDICTION OR  AUTHORITY as it is being erroneously argued in some quarters, but a HYBRID  COURT of  COMPLEMENTARY JURISDICTION OR  AUTHORITY, with  primacy  constitutional  safeguards, powers  and responsibilities   to try specifically war and economic crimes by the use of   both local and international  laws,  international best practices and standards as in keeping with the Rome Statute already ratified under the 1986 Constitution.  Further, creating a court of this nature by the legislature is part of the express reform right granted the people of Liberia under Article 1 to amend, upgrade, and strengthen in any manner form and shape; any law or statute for their own well being and this will not be inconsistent with the supreme organic law of the Republic.
As regards the question of what becomes of section 17.1 titled:” Qualifications for admission to Bar” under the Judiciary Law of Liberia which states: “A person applying for admission to the Bar as an attorney must be a citizen of this Republic, have attained the age of twenty-one years, and be examined and licensed to practice as prescribed in this chapter” this may require a statutory alteration in the form of a repeal or amendment to conform to the will of the people under Article 1. Once the happiness and benefit of the people have been addressed under Articles 57 and 34(f) of the 1986 Constitution for the creation of the court, the issue of who qualifies as a lawyer to practice is secondary. In closing part of this argument, let me submit that the War and Economic Crimes Court in Liberia has been created in principle since 2004 when the Rome Statute was ratified consistent with Article 34(f) of the 1986 Constitution but in actuality, it remains an idea only good on paper and excellent to debate on radios and televisions. TO BE CONTINUED.

 The answer to the question of what needs to be done to actualize the establishment of a War and Economic Crimes Court in Liberia is simple.  It does not require a Political Will as it is being construed;  instead, it requires a judicial action and this can be done by means of a petition for a writ of mandamus to compel the Liberian government to establish the court as in keeping with the earlier actions of the NTGL. The decision to establish the court is a public duty that is devolved upon the government of Liberia by statutory laws and the 1986 Constitution. Since it is  a public duty by law, mandamus is the appropriate remedial process.  The Supreme Court of Liberia has held in the case: RL v Leadership of LNBA et. Al., 40 LLR(2001)  635, syl. 22 & 23 that :

(1) . “Mandamus is a judicial proceeding to coerce the performance of duties devolved by law upon public officials; and

(2)   Where mandamus is sought, the petitioner or relator must have specific legal rights, the enjoyment, protection, or redress of which the discharge of a duty on the part of the respondent is necessary, and the writ of mandamus will not be issued at the instance of one who has no such right.

 The court further held   that: “Mandamus should be resorted to only for the purpose of enforcing the legal duties of a public nature, which arise from an office, station or trust, and are ministerial in character.” A petition seeking the establishment of a War and Economic Crimes Court is intended to enforce legal duty of a public nature to which the government of Liberia has already subscribed by the ratification of the Rome Statute. TO BE CONTINUED.

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