By: Bill K. Jarkloh
Emails: email@example.com; firstname.lastname@example.org
Although the President, Ellen Johnson Sirleaf has expressed support to the Truth and Reconciliation Commission (TRC) at its launching and had promised to appear, her latest decision that she would not appear before is elating. It is unquestionable to state that the Constitution of Liberia – past and Present - immunes the President from judicial actions unless through impeachment for offenses against the organic laws. For instance, the TRC – in the execution of its mandate – uses the power of subpoena usually ascribed to courts of law to compel appearance of witnesses in the docks. Besides, the President’s appearance would expose her to questioning that could leak state secrets to the disadvantage of the country. This is why it becomes bothersome when reports lately stated that Information Minister Laurence Bropleh reemphasized the President’s commitment to appear before the commission if she is called upon.
The President’s Commitment and Its Consequences
The appearance before the Truth and Reconciliation Commission by President Ellen Johnson Sirleaf is gravely consequential. It could warrant impeachment of the President to the joy of her opponents and critics. However, others may argued that the President, in pledging support to the TRC, also consented to appeal before the TRC to share knowledge about her participation in politics during the period of time under review – 1979 to 2003.
On March 13, 2008, the Voice of America’s James Butty published an interview with Liberia’s Information Minister Laurence K. Bropleh in which the Information Minister said President Ellen Johnson Sirleaf says her support for the country’s Truth and Reconciliation Commission (TRC) remains unwavering. But before then, the president had earlier changed her mind from previous statement when she said she’s writing a book to be released next year, which is going cover all what she would have told the TRC.
“Let me make it emphatically clear that President Ellen Johnson Sirleaf is committed to total reconciliation of this nation, Liberia. She is committed to understanding and helping people understand that the methodology by which we can reconcile our nation, that process can really begin effectively with the Truth and Reconciliation Commission. This government has supported that commission financially; morally the president was there at the opening of the TRC. And the president is committed to being at the TRC, if she is called, and she is not backing down from that,” Minister Brobleh tol Mr. Butty.
But this position of the President as stated by the Minister is highly questionable. It is questionable because all it does is to put the President against the Constitution, reference to Article 61 which immune from any suits, actions, or proceedings judicial or otherwise and from arrest, detention or other actions on account of any act by him while President of Liberia pursuant to any provision of this Constitution or any other laws of the Republic.
There is no support of a commission that, including the TRC that should lead the President to abrogating any clause, phrase sentence or paragraph of the Constitution just to satisfy either critics of supporters. As it is know, the President swore to protect the Constitution when she took her oath of office on January 18, 2006. So there isn’t any room or alibi that can be used to evade the protection given the presidency – the President in particular, for doing so constitutes an impeachable offence.
Truth Commissions & the case of Liberia’s TRC
Liberian TRC is one of at least 34 truth commissions which have been established in 28 different countries of the world since the mid-1970s. Some of these commissions are officially named "Truth and Reconciliation Commission", like the one in Liberia, while others have different official names. Truth commission is the term commonly used to refer to all of them.
In Africa, eight countries other than Liberia have established truth commissions. South Africa has had three truth commissions, including the Truth and Reconciliation Commission established in 1995. Other African countries which have established such commissions are: Uganda (1974), Chad (1991), Nigeria (1999), Ghana (2002), Sierra Leone (2002), Democratic Republic of Congo (2003), and Morocco (2004).
Negotiations were ongoing to establish a truth commission in Burundi; it is not up to press time, known whether the truth commission of Burundi has been established. However, while other countries may structure their laws and Constitutions in a way that would subject their presidents to judicial actions while in office, the Liberian constitutions and laws are on the contrary. Apparently, the appearance of President Sirleaf at the TRC would be recorded in the Liberian history as the first president to face a quasi judicial forum or a commission.
Article 61 of the Constitution expressly provides that “The President shall be immune from any suits, actions, or proceedings judicial or otherwise and from arrest, detention or other actions on account of any act by him while President of Liberia pursuant to any provision of this Constitution or any other laws of the Republic. The President shall not, however, be immune from prosecution upon removal from office for the commission of any criminal act done while President.” [Arthur Dennis Article -In the President Ellen Sirleaf’s Appearance before TRC: I Beg to Differ – Published on August 11, 2008 in the Liberian Journal on Line Magazine] - This provision of the Constitution would not allow the President to be subjected to such quasi-judicial powers that are being exercise by the Truth & Reconciliation Commission of Liberia.
As a matter of fact, the language under this immunity clause is crystal clear. In the first understanding of the Constitution, Article 61 provides that no private citizen, public agency or commission, has the power to arrest, detain, or file a lawsuit or judicial proceedings against a sitting President; that is by provisions in the Constitution, the House of Representative is the only forum empowered to summon a sitting President for judicial proceeding.
Secondly, the clause (President shall not, however, be immune from prosecution upon removal...) means if the President was removed from office for committing a criminal act while in office, he is not entitled to such immunity and lastly the Constitution is completely silent on the immunity for a sitting President for wrongs committed in private or public life before ascending to office. On the basis of these variables, it is rational for one to see that the President’s appearance before the TRC is lawfully inconceivable, considering that the Constitution is the supreme and organic law of the land and any other law that runs contrary to it is notwithstanding.
America and Ghana: Lessons for Liberia
Constitutional crisis similar to the one concerning the appearance of the President at the TRC hearings developed in America and Ghana, and resolutions of these crises in the two countries, I believe, should serve as Liberia’s guide. In May 1994, one Paula Jones filed a lawsuit against President Bill Clinton for sexual harassment for an act which allegedly took place before Clinton entered office.
The U. S. Supreme Court ruled on that MATTER. In its ruling, the federal Supreme Court held that although the constitutional immunity in the United States does not protect a sitting President for civil acts he committed before entering office, however, to preserve the honor of the presidency, Pula was requested to wait until President Clinton left office.
This legal precedence is a law to day in Liberia. In our case here, preserving the dignity of the Presidency of Liberia is not a matter of compromise as it was in the United States in 1994. It is here a matter of adhering to Constitutional guidance and principles of the Liberia law.
Ghana also experienced the same constitutional crisis. The citizens witnessed several brutal incidents under the regime of President Jerry Rawlings. However, in the interest of peace and security, they waited until he left office in 2001 before he was summoned to testify before the National Reconciliation Commission, which in this case is called the TRC.
It is therefore lawful for the president to resist any attempt to have her cited before the TRC while she still occupies the Liberian presidency. Those who have the other side of the cone, calling her to appear before the TRC should know and understand clearly the constitutional implications and the morale values of the presidency that would be dragged into the mud. For me, the hold their peace, for even if the TRC’s statute of limitation expires before she leaves, they would even take Madam Sirleaf to court if testimonies regarding her political life in the years 1979-2003 were importantly convicting and of interest to them. On the other hand, the may simply complain to the Supreme Court for the legal interpretation of the President’s appearance before the TRC for the purpose of their call. But let me warn that it will not be surprising fro some others to file a petition of impeachment before the House of Representatives, picking bones with the president for betraying and violating the Constitution, an act which is definitely impeachable.