The Code of Conduct, An Incomplete Law
The epitome of a literate society is one where citizens get the full rhythm of the beat, not just a little bit of the sound bites. These days, the buzz phrase on the tongue of most Liberians, is “the Supreme Court has ruled that the Code of Conduct is constitutional,” therefore it is officially now a law of the land. On the contrary, legal minds would say, “not so fast,” let’s get to the fine prints of the Supreme Court’s ruling.
Here at Radio Wish, it is our official policy not to publish a piece of story, until we have exhausted all avenues of inquiry and fully vetted. For instance, when the news broke out that the Supreme Court has handed down its ruling on the Code of Conduct Legislation (COCL), we saw other news outlets naming names of people whom they already have condemned as guilty parties in circle of public opinions. That is something this agency will never do. We are not a court house, but a medium that shapes public opinions.
Nonetheless, earlier in March 2, 2017, the Supreme Court of Liberia rendered its opinion on a petition for a declaratory judgment against one Selena Mappy-Polson, who serves as the Superintendent of Bong County, Republic of Liberia. In this case, Selena Mappy-Polson was the petitioner, while the Government of the Republic of Liberia was the respondent. This was a majority opinion (3 to 2), and was delivered by Justice Ja’neh.
The basis of the petition was for the Honorable Supreme Court (SC) to decide whether or not Part V, Section 5.1 of the Code of Conduct was constitutional.
Thus, Section 5.1 of COC states that:
["All Officials appointed by the President of the Republic of Liberia shall not:]
Engage in political activities, canvass or contest for elected offices;
Use Government facilities, equipment or resources in support of partisan or political activities;
Serve on a campaign team of any political party, or the campaign of any independent candidate.”
Section 5.2 of the legislation further reads that:
[Wherein, any person in the category stated in Section 5.1 (Emphasis supplied)
Any Minister, Deputy Minister, Director-General, Managing Director and Superintendent appointed by the President pursuant to article 56(a) of the Constitution and a Managing Director appointed by a Board of Directors, who desires to contest for public elective office shall resign said post at least two (2) years prior to the date of such public elections;
Any other official appointed by the President who holds a tenured position and desires to contest for public elective office shall resign said post three (3) years prior to the date of such public elections.
However, in the case of impeachment, death, resignation or disability of an elected official, any official listed above, desirous of canvassing or contesting to fill such position must resign said position within thirty days following the declaration by the National Elections Commission of the vacancy.
Sections 14.1 on “Infringement of the Code:
14.1. [A breach of this Code of Conduct shall evoke, relevant to the particular officer, the disciplinary processes as contained in the standing Orders of the Civil Service, this Code of Conduct and other relevant rules, regulations and laws in force.]
Section 15.1 providing sanctions for Infringement of the Code of Conduct Act:
[Sanctions for any breach of this Code of Conduct shall be those prescribed by the Standing orders of the Civil Service or any other laws governing the public service. Notwithstanding, depending on the gravity of the offense or misconduct, one or more of the following penalties may apply:] Dismissal; (b) Removal from office in public interest; (c) Reprimand; (d)Fine or making good of the loss or damage of public property/assets; (e) Demotion (reduction in ranking); (f) Seizure and forfeiture to the State of any property acquired from abuse of office; and (g) Interdiction/suspension from duty with half pay.
Essentially, all of the above, ranging from Sections 5.1, 5.2, 14.1 and 15.1 constituted the bases of Petitioner Selena Mappy-Polson’s request to the supreme court. To say the least, Madam Mappy-Polson brilliantly presented her qualms with the above provisions.
Consequently, the core of her contentions lies in the following constitutional provisions:
The eligibility requirements for the President and and/or the Vice president of Liberia are stated in Article 52 of the Constitution while those for legislators are stated in Article 30 of the Constitution.
Article 52 of the Constitution states the requirement of a president or vice president as being (1) a natural born citizen of Liberia; (b) having not less than 35 years of age; (c) being the owner of unencumbered real property valued at not less twenty-five thousand dollars; and (d) being a resident in the Republic ten years prior to his elections. Regarding eligibility to contest for a legislative position, Article 30 of the Constitution categorically declares as follows: “Citizens of Liberia who meet the following qualifications are eligible to become members of the Legislature:
For the Senate, have attained the age of 30 years and for the House of Representatives, have attained the age of 25 years; (b) Be domiciled in the county or constituency to be represented not less than one year prior to the time of the election and be a taxpayer.” The foregoing are the only eligibility/qualifications requirements for being a president, vice president or legislator. In fact Article 30 is categorical that all Liberians who meet these requirements “are eligible”.
So, since all of the above provisions are duly supported within the constitution of Liberia, petitioner plea to render them unconstitutional was unconditionally denied both in law and in fact.
On the contrary, here is where some of us are missing the mark. Yes, the Supreme Court has clearly made it known that all of the provisions in the Code of Conduct are fully supported in our 1986 Constitution under Chapter 11, Article 90. However, by themselves laws are unenforceable without a clearly written regulation (how to) that includes definition of terms, to avoid ambiguity and confusion in line with the true intent of the framers of the law.
For instance, in the matter involving the prohibition of a number of contestants in the elections of 2005 and 2011 on the grounds that those contestants failed to certify the residency clause, the Supreme Court disagreed with the petitioners, that the law does not say “ten years consecutively.” Therefore, it is conjectural to suggest that, that was what the framers intended. The court further ruled that, the term is ambiguous.
One of the respondents, Kenny Sandy contended that he has lived in Liberia for about seventy-five percent of his life. The court therefore held that unless the constitution is amended to clarify the meaning of the phrase as contained in Article 52(c) of our constitution which says, that "No person shall be eligible to the office of President or Vice President unless that person is a resident in the Republic ten years prior to his election."
Accordingly, the Supreme Court further said that, “the provision does not require a citizen wishing to contest the position of President of Liberia to be a resident for ten consecutive years as contended by the petitioners; that the provision is unambiguous and needs no interpretation; and that the petitioners interpretation to that effect that it means ten consecutive years prior to election has a deliberate ulterior motive designed to misinterpret the provision.”
Hence, in and of itself, the Code of Conduct cannot be used solely without firstly defining all unambiguous terms, and drafting a how or regulation on how the law will be executed.
This position has also been supported by a law professor and former Attorney General of Liberia, Counselor Benedict Sannoh. In his interview granted to a local radio station, the learned Counselor said, “that without firstly establishing a nationally accepted regulation, the Code of Conduct remains unenforceable, particularly on where the buck starts or stops. Do we run to our supreme court to clarify every ambiguous term or disagreement regarding this law?
More so, as a matter of law, can a citizen be barred from contesting the 2017 presidential election on account of a law that is not in existence now, a non-governing law during the periods when these people are serving their various positions, without offending the principle of Ex post facto articulated under Article 21 of the Liberian Constitution? Can you really punish someone for a law that is in transition?
The ex post facto principle, articulated in Article 21(a) of the (1986) Constitution, says Inter alias: "No person shall be made subject to any law or punishment which was not in effect at the time of commission of an offense...." An authoritative legal source, Black’s Law Dictionary, Sixth Edition, at page S80, defines ex post facto law as "[a] law passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed....". [Emphasis supplied).
What happens after a regulation shall have been drafted? That regulation, under law will have to go through a national referendum. Upon acceptance, the full law including the regulation and definition will be published by the Foreign Ministry as the law of the land, before you can hold anyone accountable under the Code of Conduct.
What do we mean? As of now, COC has not provided a section on how the law or rules and regulations will be promulgated or enforced. Is it going to be enforced by The Civil Service Agency as the primary responsible party, the Election Commission, or the courts?
How would cases be transmitted for prosecution arising from violations of this Act to the property parties to be handled in line with the law? Would such a regulation be free and clear from acts of deprivation of the right of would be violators?
A clear regulation will also consist of stringent standards, appropriations and sources of funding the implementation of the law. Would the enforcement of this law be placed under ECOM, Civil Service Agency, either way, there is need for the creation of annual General Appropriations Act as well.
There is also a need for “Separability Clause.” Any law should also consist of a “repealing clause,” that will be able to repeal or modify sections of this law that we all may one day agree are reprehensible.
Finally, just when would this law be effective and officially published in the Gazette or other means of general circulation?