Rule of Law: The Single Greatest Challenge for Lasting Peace
The Analyst (Monrovia) I. Introduction
ANALYSIS
January 20, 2006By B. Ignatius George, I
If it were said that Liberia is at the cross-roads, this is the time. Liberians went to the polls on October 11 and again on November 8 last year to fill the leadership vacuum created by the premature departure of Charles Taylor and to fulfill the constitutional requirement for filling governance vacancies through the conduct of free, fair, and democratic elections nationwide. Amongst 21 candidates, Liberians selected the candidate of the Unity Party, Madam Ellen Johnson-Sirleaf, to head the nation for the next six years. There were many reasons for this overwhelming choice for a long-time opposition front-bencher, good governance activist, and reformist, to head the postwar administration that is expected to initiate solutions for Liberia's numerous problems. The President's academic and political credentials aside, it is the promise to break with the past and set this nation on its wheels afresh was central to reasons for her selections that the world agree set aside the traditions of Africans politics. No wonder President Sirleaf's inauguration on January 16 did not only attract, but it also caused the largest ever convergence of world leaders to the to war-ravaged capital city of Liberia, Monrovia, where accommodation is a nightmare and where electricity and safe-drinking water are rear gems. The question of leadership is now settled, inauguration having sealed the process. But a number of challenges bordering on the consolidation of peace and the reconstruction of the country after years of devastating warfare remain. Key amongst them is the establishment of the rule of law. Some say the challenges should be the reestablishment of the rule of law, suggesting that the rule of law existed but was destroyed. This argument should rather be left alone in order to look forward to the question of how the rule of law can be used as the conduit for the maintenance of peace, reconciliation, and the reconstruction of this country. But just what is the rule of law and what constitute it? Have Liberians actually lived under the rule of law? What did the past look like? Did the transitional period relieve the past and dramatize it in full force? What are the issue that relate to the establishment of the rule of Liberia in postwar Liberia and what is the way forward? The Analyst, this week, brings these questions and issues into focus.
II. The Rule of Law
But just what is the rule of law and what constitute it? For the sake of this discussion, the rule of law is the prevailing national order of business and social transactions in which the law, as interpreted by an independent, competent Judiciary, is the final arbiter between the rights of the people and the expediency of the power-that-be vis-à-vis the overall good of the nation. It is the central thrust for good governance. This is to grant that law is all the rules of conduct established and enforced by the authority, legislation, or custom of a given community, state, or other groups. Proponents say where the law rules, national growth, peace, democracy, and the socio-economic and political welfare of the people is guaranteed and protected. Where it is absent, they say, the reverse and even the worst happen, leaving the citizens distrustful and cynical of their leaders and national institutions, and distrustful of and vindictive towards one another. When this happens, the international community, mainly the business and donor community, takes cues and more and more the country in question is isolated and despised. This is the situation that confronts Liberia with increasing intensity both in the past and now. Liberians are unanimous that this situation must end, that their country having denounced arbitrariness and embarked on the restoration of pluralistic and participatory democracy must not continue to face international isolation because of the lack of the rule of law. But what prompts this unanimity amongst Liberians?
III. Lessons From Past
Some Liberians argue that Liberia once practiced the rule of the law before sliding back into arbitrariness. The reasons advanced for this sliding back, though, lacking as much in substance as the argument itself. But the skeletons from the nation's closets indicate otherwise and are rather instructive about what happened and what lessons must therefore be learnt in order to help shape the future. Reviews of the past are consistent that this nation actually existed on practiced formalism and a set of expediency of the powers that were tempered with the selective application of the law. It was actually the rule of formalism, rather than of the law whereby laws were laboriously enacted but were left to gather dust in favor of expediency, that governed official interactions in Liberia and determined the relations between the governors and the governed.
According to the reviews of the past, the laws never really ruled. The check-and-balance doctrine of the republic form of administration was never scrupulously followed. The president made appointments in government allegedly "with the advice and consent of the Liberian Senate" without actually consulting that body of the people's representatives and put his nominees forward to be cross-examined and rejected or confirmed in keeping with the Constitution of Liberia.
It is required of the Chief Executive (the President of Liberia) to report to Parliament annually on the state of the nation's security, economy, and foreign relations. The reasons being to provide the condition for ensuring that the fiscal budget designed by the Executive and confirmed by the National Legislature at the onset of the fiscal year was adhered to, to the least details. But there is no incident to support any suggestion that that constitutional provision achieved its objectives in the past. What was the accepted practice was that the President read the report, the Parliament clapped, and when the session is over, members of parliament proceeded to the Executive Mansion to enjoy the President's patronage and largesse. That closed the chapter, year after year for God knows how long, on budgetary allotment for that fiscal year and the tale of the doctrine of check-and-balance through which the nation's resources and job placement were supposed to be managed.
The Judiciary is supposed to be part of the tripartite system of check-and-balance but all incidences point to the conclusion that the Judiciary actually was the whipping boy of the three branches of government. Constitutionally, the President is authorized to make judicial appointments from the level of the Chief Justice and the associate justices to the justices of the peace. He has no dismissal power, but he or she may not renew the reappointment of a justice of the peace; that is the law. He or she has no place in deciding legal matters whether it involved the state or private individuals, whether the state is the complainant or plaintiff. But there is no question that past presidents did openly interfere with the Judiciary and manipulated court decisions.
The courts actually postponed hearings in which the state is a party litigant for as long as it took for its prosecutors or defense counsels to gather evidence while the plaintiff panted in vain for the reassignment of the case or while the defendant rotted in detention. In most cases, this situation was resolved with a despondent plaintiff left to lick his or her wounds, or a defendant set free by presidential pardon or general amnesty granted erratically at the pleasure of "His Excellency" the chief patron of the state.
Whether it is the President or any of his lieutenants or judges or legislators, the ordinary citizens stood no chance of winning a court case, let alone to press for his or her right under the Constitutions and statutes of Liberia. These officials barricaded themselves behind laws that never existed, and using these laws, endowed themselves with the right of way. It is like what President Samuel Doe told defense minister, Gray Allison, who was being prosecuted on allegations of attempting to overthrow the government: "I am the rock and you are the egg. If I fall on you, you will break; if you fall on me, you will break." In practice, past officials of government actually ordered, for no constitutional or legal grounds other than the vain show of self-importance, the arrest and detention of citizens without bothering to revert to the courts. What is worst about this practice was that there existed no counter powers within the Republic of Liberia (that of the Chief Executive aside) that was potent enough to overturn such orders. The citizens picked up and detained under these circumstances lost all rights and privileges as citizens until the order is reversed by the giver at his or his own volition and time. Whenever a minister, legislator, judge, or any other government functionary detained an individual, the cause of detention irrelevant, no law enforcer dare release the victim unless otherwise countermanded to do so.
The police, too, had their own ways of demonstrating their powers against the hapless citizens. The police made no secret of being the plaintiff and judge at the same time or showed remorse for such anomaly of law enforcement and the criminal justice system, keeping citizens in detention beyond the constitutional time for detention without charge and/or trial. These illegal detentions were only oftentimes reversed by superior countermands or the offering of bribes or jailbreaks and escapes. These abuses extended throughout the country as far down as to the town or quarter chief, his or family members, and staffs. In other words, the practice was so all-encompassing that it became a culture. Elected and appointed officials, their lieutenants, and even their family members were law unto themselves, the laws and gospel, as they say.
They abused the people with impunity, leave and enter government without proper credentials and vetting system. Anyone can see why the presidency or inclusion in government is the obsession of Liberians many of who had been victims of official arbitrariness.
Of course all of this teaches that these vicious practices, having brought Liberia down to its knees, ought to be reversed and replaced with total adherence to the rule of law. In passing, it must be said that tried as it did, the two-year transitional administration of Chairman Gyude Bryant failed miserably to reverse the culture of impunity and restore the rule of law also. Now the opportunity has presented itself for what was not achieved to be achieved. First, there are issues relative to the establishment of the rule of Liberia in postwar Liberia that must be resolved. But just what may be these issues?
IV. The Issues
The issues that confront the restoration of the rule of law in postwar Liberia are manifold. They concern getting the present legislators to shed some of the trappings of the past, which attracted a large number of them in the first place to the National Legislature, in order to enact a code of conduct for public officials that will help put a lid on the practiced and shameless disregard for the rule of law while wasting public funds on the creation of new laws annually.
The other issues regard the much-sung judicial reforms that are necessary to put the Judiciary on equal constitutional footing with the other two branches of government such that it will be empowered to perform its constitutional duties and responsibilities without interference and exclusively on the basis of the law, legal precepts, and judicial opinions. In so doing, perhaps it will be a good thing to blend customary and statutory laws so that one citizen of this country will not be subjected to two sets of law, which are sometimes counteractive, contradictive, and counterproductive, for the growth and development of this country and this society that is hovering at the edges of reversion to the contradictions of the past and violence.
The envisaged reform of the Judiciary, and the presumed reordering of the criminal justice system that goes with it, must go hand-in-hand with the reform of the security forces. The reformed and restructured security forces will reject arbitrariness, adhere to the standards of the criminal justice system, and ensure that the accused for whatever reason except as provided by law, is not detained beyond forty-eight hours without charge or trial. The security forces and courts so redeemed must be depoliticized so that no voice other than that of the law has the commanding lead over their functions and responsibilities to the Liberian people and the international community.
V. The Way Forward
If there is code to be enacted to guide the conduct of public officials toward adherence to the dictates of the law; if there is the police and army that must be reformed and restructured; if the functions and responsibilities of the security forces must be depoliticized to make the law the central determinant of official practices, then the way forward is just those. If Liberia must reenter the realm of the comity of nations as a responsible member, if internal security must back and consolidate the peace gained over the last two years, and if this nation must grow and develop with international cooperation and assistance, the establishment of the rule of law is a must in Liberia. There are no detours, no beating around the bush, no stalling, and no hoping that the international community will ignore the shrapnel of lawlessness and pump its resources into the development of a nation stubbornly anchored in arbitrariness just to please a few outlaws. There is no doubt that it is only when there is the rule of law that the citizens will interact freely with their leaders, trust their legal, agro, security, education, health, and business institutions as instruments of national endowments. It is only when there is a rule of law that the citizens will feel protected by their organic laws, live and freely acquire wealth, and work for the growth and development of their nation without resorting to subversive activities in order to find respite from oppressive and suppressive rules and expediencies. This is possible, isn't it? What do you think?
