The rule of law, Liberians generally believe, holds the key to the combat of corruption and the eradication of the culture of impunity.
But the recent reported application in court of a law that appeared to have no legislative basis has brought the rule of law, as foolproof panacea, under new scrutiny regarding authenticity and manipulation.
The Analyst has been looking at the General Auditing Commission’s (GAC) complaint to the Supreme Court.
GAC says its investigation has discovered that certain laws, which have no legislative basis, were been applied to by certain public officials and party litigants to undermine the fight against corruption, and it is calling on the Supreme Court to levy appropriate sanctions against those responsible.
The complaint and recommendations were contained in Auditor General John S. Morlu’s October 19, 2010 communication to Chief Justice Johnnie N. Lewis.
Bogus Laws: As anti-corruption obstacles
In the communication, AG Morlu complained that the anti-corruption drive of his commission was being systematically undermined by the use of “purported laws” by auditees and others to duck convictions.
The common characteristics of the purported laws, he told Chief Justice Lewis, were that they bear no authorized signature and that they were passed during parts of Liberian war years when the legislature was not active.
One law was passed between 1990 and 1997 while the others were passed in 2002, 2003, and just before the end of the tenure of the National Transitional Government of Liberia (NTGL).
For instance, he said, the Education Law of AD 2001 was actually approved on January 8, 2002 and produced into handbills four months later on April 15, 2002.
He said not only has the conflicting dates raised questions about the authenticity of the law but also that it has created what he called accountability problem at the Ministry of Education between the Deputy Minister of Administration and the Deputy Minister of Instruction.
“It is difficult to hold either responsible for personnel management at the Ministry. Again, this law is in conflict with the Civil Service Standing Order and Chapter 10 of the Executive Law of 1972,” AG Morlu said without further comment regarding the conflicts.
Another law, which he said was impeding the auditing process and making it difficult to track corruption, was the Act Creating Customs Broker Association.
“This Act legislated officials by name. For instance, “John Brown” is the President. The Deputy Minister of Revenue and NPA Managers have relied on this law to give undue credence to this bogus organization and individuals getting containers and the goods out of the port,” the AG said.
The Act Creating the Sapo National Park, another law that he said Senate Senior Stenographer J. Sayfurth brought to his attention, was passed on August 20, 2003 when the House was not in session and after Taylor departed Liberia on August 11, 2003.
“No Session was held from 19 July 2003 until 15 October. The NTLA’s first official meeting was on 15 October 2003. The law was not in the journal, therefore was not read publically, and debated in plenary. Senior Stenographer J. Sayfurth therefore concluded that the Sarpo National Park Act was a bogus law,” AG Morlu told the Chief Justice.
A recent drama at a magisterial court in Monrovia, according to AG Morlu, highlighted the negative impact bogus laws were having on the criminal justice system, the fight against corruption, and the rule of law drive of the country.
Bogus Laws: As tools for ducking convictions
“Most recently, the Government of Liberia won a corruption case against Albert Bropleh, former Chairman of the LTA. But the next day another law was presented that apparently led the judge to reverse the jury verdict,” said AG Morlu.
The court reversal occurred even though the Solicitor General of the Republic of Liberia noted in his minutes that neither he nor the judge had prior knowledge of the law that supported the counterargument that led to the overturn of the jury’s verdict.
He said even the defense lawyers, who prayed the acquittal of their client based on that law, later, admitted that it fell short of the necessary legal requirements for application in court.
AG Morlu did not say why the judge upheld the reversal despite what they knew about the legal basis of the counterargument, but he said an investigation of legislative background of the law itself turned out interesting discoveries.
“The Ministry of Foreign Affairs presented a Handbill Copy of the law; although the law was not signed by either Chairman Bryant or the President neither have we seen the endorsement copy which is supposed to have been signed by the Chief Clerk James R. Kaba who is now deceased and the then Acting Speaker George Koukou. The law was purportedly passed on 14 January 2006, two days to inauguration and printed into Handbill on 16 February 2006,” he said.
But he said further investigation revealed that there was no trace of the passage of the law at the National Legislature.
“There is therefore no Legislative History for this law as far as our research show. Interestingly, for your information Cllr. Garlawolo who presented the law was a member of the NTLA, and served as Chairman on judiciary,” the GAC boss said.
In his view, that Cllr. Garlawolo used the law in court in defense of his client knowing full well that it has a checkered legislative history indicated that his action was premeditated and designed to make a guilty man go scot-free.
“Cllr. Galawolo should be made to produce material justifications and documentary evidence as to the legal existence of this law, as it is clearly evidenced by the journal that this law was never introduced or discussed in plenary,” he said.
Given that the law was not on the January 2006 journal of the NTLA, the question that Cllr. Garlowolo needed to address was how the law got passed on January 14, 2006.
He said GAC’s investigation has discovered that the NTLA passed five laws on its last sitting on January 12, 2006 and thereafter ended plenary to revert to “Executive Session to discuss our welfare”.
“Hon. Chief Justice, there is also no ENGROSSED BILL for this law and Covering Letter from the Chief Clerk of the House of Representatives transmitting this supposedly passed law to the president for signature. “
“There is also no ENGROSSED BILL for this purported law that Cllr. Garlawolo presented to reverse the verdict. There is no evidence that this law is CODIFIED,” he said.
Even though Cllr. Garlawolo appeared to bear greater responsibility for the use of the law in court, AG Morlu said other accomplices in the deal should be reined in for questioning.
“There is also a need to investigate officials of the Ministry of Foreign Affairs to determine how this unrecorded and purported law was printed into Handbill and placed in the archive at the Ministry of Foreign Affairs without the signatures of Chairman Bryant, Acting Speaker George Koukou and Chief Clerk James Kaba,” he said.
He said there was a need for the Foreign Ministry staff to present recording logs for the bill in case it was argued that the bill did not have authorized signatures due to the constitutional forfeiture rule contained in article 35 of the 1986 Constitution of Liberia.
“These purported laws are indeed undermining our efforts to fight corruption. There is a need to punish people who manufactured laws and dating them during the last days of the NTLA and the war years. This is also unduly complicating the judicial process.”
“This issue might appear as ‘small’ issues but they have serious implications for transitional justice, the war against corruption and impunity and efficiency of Government operations,” AG Morlu said.
According to him, there was a number of reasons for which the issue should not be considered small.
“Accepting this law introduced by Cllr. Galawolo means legalizing an illegal law that has no Legislative History. It also means criminalizing the judiciary and the rule of law. Cllr. Galawolo should be accountable for submitting to court this purported law,” he said.
Not only that, he said: “There is also a need for Judicial Review of the Judge’s decision to reverse the verdict and all cases adjudicated on the basis of this purported law. This would be fundamental fairness in the dispensation of justice in Liberia.”
He said it was a strange phenomenon in Liberia for a practiced legal practitioner to present what he described as a “crooked law to acquit a client that is being prosecuted for corruption”.
“It is also strange for a judge to accept and reverse a verdict on a crooked law introduced after a jury verdict, a law that the judge and defense counsel had no knowledge existed prior to the verdict. It is further strange that a law not enrolled or engrossed and with no legislative history can be printed into a handbill and stock at the Ministry of Foreign Affairs,” the GAC boss said.
Meanwhile AG Morlu has dispatched copies of the communication to President Sirleaf and other institutions whose work would be affected as the result of these laws, including the US Embassy and the European Commission.