Activist
We have offered another side of the argument. The relevant legal citations in defense of our divergence are also attached.
For starter, the decision of His Honor Chief Justice Yamie Quiqui Gbeisay to have ordered and conducted personnel verification and credential audit is commendable. But his latest decision to recommend his son for judicial appointment and to even defend such appointment may vitiate his previous effort for reform if caution is not taken.
What did Chief Justice Gbeisay say in defense of his son’s appointment as an associate magistrate?
Abridged: “The Constitution gave power to the president to appoint all presidential appointees. What the law does not give, it holds. I recommended my son. The president appointed him. The president was not wrong to appoint my son. I did not do anything wrong. No law is against it. I give an example. You are a resident judge. Your husband is assistant minister for taxation. His brother is a member of the Good Governance Commission. So, what’s wrong with Gbeisay’s son serving in the government. If you show me any law that I violate, I will resign.”
Let’s deal with it in piecemeal:
1) “The Constitution gave power to the president to appoint all presidential appointees. What the law does not give, it holds.”
Here, the CJ premised his argument by thinly and indirectly evoking the Doctrine of the Separation of Power which emphasizes the executive authority of the president to appoint associate magistrates. In the latter part, the CJ relied on the Principle of Legality to say, “no law disqualifies his son from being recommended or appointed an associate magistrate (Rephrase).”
A simple counter to the CJ’s justification is the Restrictive Principle which is largely intended to prevent actions that lead to the abuse of power. The same Constitution that grants such a presidential power to appoint also rebukes “Nepotism” and “Conflict of Interest” as an abuse of power (Ref: Article 5 and Article 90 of the 1986 Constitution). The Constitution is very expressive and explicit on the question of Nepotism and Conflict of Interest. So, the Chief Justice cannot definitively say that no law prevents him from recommending his son as an associate magistrate. Let’s break it down for everyone.
The Law:
Article 90(a) and (b) of the Constitution are crystal clear: a) “No person, whether elected or appointed to any public office, shall engage in any other activity which shall be against public policy, or constitute conflict of interest.”
b) “..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.”
Furthermore, Article 5(c) states, “…take steps, by appropriate legislation and executive orders, to eliminate sectionalism and tribalism, and such abuses of power as the misuse of government resources, nepotism and all other corrupt practices.”
It is a conflict of interest for the son (associate magistrate) of the referee (chief justice) to play under the whistle (gavel) of the CJ. It can be almost entirely assumed and/or concluded that the referee (CJ) may not red card his own son (magistrate) if his son plays or commits a foul (e.g., ethical breach) because of the blood relationship that exists between them.
The CJ said, “I recommended my son.”
Just by recommending your son is a red flag which points to “personal interest” (conflict of interest) and nepotism (preferring a family or relative for a public position).
Additionally, Rule 8 of the Code of Moral of Professional Ethics Governing the Legal Profession in Liberia detests conflict of interest.
To make the case beyond this point, Section 9.6 of the 2014 Code of Conduct Law (Use of Office for Private Interest) states, “No Public Official or Employee of Government should use an official position to pursue private interests that may result in conflict of interest.”
To know whether the CJ is wrong on this issue, we must first understand what “Conflict of Interest” constitutes in line with the plain text and the interpretation of the law (e.g., the spirit and intent).
Section 1.3.6: Conflict of Interest: is when a public official, contrary to official obligations and duties to act for the benefit of the public, exploits a relationship for personal benefit.
The CJ recommended his son to benefit from a presidential appointment even though there are other qualified or more qualified lawyers that could be recommended for appointment. How was the recommendation even done? Did it pass the merit-based and ethic test?
What about nepotism? Let’s get to it. What does the law say about it?
Section 1.3.16: Nepotism: when a public official appoints, employs, promotes, or recommends for advancement family members in any agency of Government or branch of Government in which he/she works.
Did the CJ say that he recommended his son? Yes, he said that. The first sentence of 1.3.16 says “…when a public official recommends a family member…”
Such action constitutes nepotism and is in violation of Section 9.7 which states: “A Public Official may not appoint, employ, promote, advance, recommend, or advocate for appointment, employment, promotion, or advancement, in a civilian or military position in the agency or branch of Government in which he or she is serving or have jurisdiction or control…”
In addendum, does the CJ have jurisdiction or control over a branch of government as Section 9.7 emphasizes “jurisdiction over a branch of government”? Yes, the CJ is the Head of the Judiciary like the President is the Head of the Executive. So, his action to recommend his son while having jurisdiction and control over the Judicial branch clearly violates 9.7.
The justification by the CJ that his son can serve as an associate magistrate while he is the Head of the Judiciary is similar to President Boakai justifying that his son can serve as the Governor of the Central Bank of Liberia while he Boakai is the Head of the Executive branch. The CJ would have made a much more compelling case or argument had his son been appointed for a position within the Executive branch or the Legislative Branch.
This is why his analogy of the husband of the President for Trial Judges cannot hold in this case because her husband and his brother were appointed and are both serving in a different branch of government. Besides, she is not the referee or the head of the Judiciary. She is just a judge that reports to the CJ or a higher authority within the Judiciary. Note: There’s no evidence that she recommended them for positions in within the Executive like the CJ recommended his son.
An Important Caution To The Chief Justice:
The CJ has good intentions to reform the Judiciary evident by his recent directive to conduct personnel verification and credential audit. But his latest decision is an own goal that must be reversed to safeguard judicial integrity and preserve public trust. If the CJ insists and does not withdraw his recommendation for his son’s appointment, this could be captured in multiple international reports which would eventually erode the credibility, integrity, and independence of the Judiciary that he presides over.
His son serving as an associate magistrate while he is the Chief Justice defies the legal principles of ethics, expediency, and even legality as explained in our divergent opinion. The laws are crystal clear on two frontiers of infraction in this case: Nepotism and Conflict of Interest. You cannot be the referee while your son is a player. How do you even uphold and/or apply the principle of fairness?
Flashback:
When ex-President Sirleaf appointed her son, Rob Sirleaf, as the Board Chairman of NOCAL, she argued that “there’s no law that prevents that.” We provided a counterargument that she was wrong. The years after that appointment, multiple international outlets captioned: “Abuse of Power: Nepotism and Conflict of Interest, etc.” That was the beginning of her failure.
Honorable CJ, it is not yet late to correct this. Get it right, we advise. If nepotism and conflict of interest were bad yesterday, they are also bad today. We cannot justify it. Doing so would place us under the guilty gavel of moral decade and two-facedness. And we cannot afford to assume such a weight. So, we have summoned the courage to call for corrective measure. Please listen to us, Honorable Chief Justice.
Liberia First. Liberia Forever.
About The Author: Martin K. N. Kollie is a Liberian activist in exile. He is a student of law.
