Amb. Rufus D. Neufville
It is disheartening that two lawmakers from the ruling party would elect to waste the precious time of the Supreme Court and the Legislature by presenting a bill to impeach Associate Justice Kabineh Ja’neh purely on hearsays and falsehoods. It is even more disturbing that powerful forces in the Executive expect the Senators to put their hard-earned reputations on the line by wrongfully removing an Associate Justice and undermining the integrity of the courts.
Reading the petition for the impeachment of Justice Ja’neh is incessantly annoying. The entire document is soaked with unsubstantiated claims. It is a gathering of baseless allegations. The drafters of the bill of impeachment went on a fishing expedition in the life of a judicial official and wrote down all the street gossips and rumors. They even disgustingly disregarded constitutional immunities for Justices and included legal opinions expressed by the Associate Justice as grounds for impeachment. The spirit of that petition is revenge because the accused wrote the dissenting opinion against the interest of the CDC in the case Liberty Party versus NEC (2017). Justice Ja’neh opined in his dissent that if the National Elections Commission admits to incalculable degree of irregularities and fraud, the election results should be voided. This decision divided the country almost in half and remains a subject for legal debate. The current impeachment trial is designed to clear the Supreme Court of any vote that could go against the ruling party in subsequent elections.
The ruling establishment is conscious of the fact that Judges are protected under Article 73 of the 1986 Constitution: “No judicial official shall be summoned, arrested, detained, prosecuted or tried civilly or criminally by or at the instance of any person or authority on account of judicial opinions rendered or expressed, judicial statements made and judicial acts done in the course of a trial in open court or in chambers, except for treason or other felonies, misdemeanor or breach of the peace. Statements made, and acts done by such officials in the course of a judicial proceeding shall be privileged, and, subject to the above qualification, no such statements made or acts done shall be admissible into evidence against them at any trial or proceeding.” As a means of circumventing this protection for Judicial officials, the petitioners disregarded Associate Justice minority opinion which is the background and resulted to unfounded allegations.
Petitioners are relying on Article 71 of the Constitution: “The Chief Justice and the Associate Justices of the Supreme Court and the judges of subordinate courts of record shall hold office during good behavior. They may be removed upon impeachment and conviction by the Legislature based on proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery or other infamous crimes.” The phrase “proved misconduct” is key in this provision. Proved misconduct cannot be attained, as the petitioners would think, by the mere lobbying of a majority voting bloc in the Senate. For if impeachment is that easy, the President or any powerful citizen would be capable of “sacking” Justices by and through their Legislative majority. Removal of a justice is not a normal legislative process where a majority voting bloc can change green to blue even if all the Chemistry Professors disagree. It requires more than just “having the numbers” on the floor of the Senate. There must be strict adherence to the fundamental rights of the accused especially the right to due process in its most expansive form.
It is important to indicate that the right to trial by an impartial jury cannot by discounted simply because the jurors are Senators. Authorities have defined an impartial jury as “one that has no opinion about the case at the start of the trial and that bases its verdict on competent legal evidence.” Black’s Law Dictionary Eighth Edition. The Chief Justice must therefore consider the following issues: 1. Whether Senators who openly supported the impeachment of the Associate Justice before the matter reached the Senate can sit as impartial jurors? 2. Whether Senators who directly or indirectly participated in a case relating to any of the counts in the petition can sit in as impartial jurors? These issues border on the right of the accused to a fair trial.
In addition to substantive and procedural due process, the misconduct for which a Judge can be impeached must also be viewed within the context of its materiality. A test of materiality must be required to prevent stirring up impeachment petitions. Absent a test of materiality of misconduct, all Justices are candidates for impeachment by Legislators or their powerful patrons in the Executive. It would just be a matter of finding any misconduct—including misconduct that can only be avoided by heavenly Angels—and using it as a basis for an impeachment bill. Take for example, a judge arriving at a meeting late or falling asleep in a public place is liable for misconduct. Or, let us say that a Justice is caught in a societal problem to which all men are prone even with exercise of reasonable care. Would such situation (or misconduct) be material to warrant impeachment? This is the vulnerability of judicial officials the framers of the 1986 Constitution willfully avoided.
Assuming, without admitting, that the accused bought a real property from a person who put himself up as the owner of said property but was not. So, what? Do you know how many Liberians have been deceived by those fraudsters? It is to solve this widespread problem that an Act Against Criminal Conveyance of Land amending Chapter 15 Subchapter B, Section 15.21 (4) of the Penal Law creating Subchapter AB, section 15.23 was finally printed into handbill on September 2, 2014. Liberia has struggled to implement comprehensive land policy or laws to address land problems. Sometimes one bad surveyor will survey the same piece of land for several people and even counter checking at the National Archives on the validity of the deed would still prove inadequate. Do not rush to conclude on the character of a man when he is involved in land quarrel in Liberia. This does not suggest that the unsupported accusation in the petition should matter.
The records show that accused bought real property in 1997 when he was not a member of the Supreme Court. One of the petitioners stated during the discussion in the lower house that the Justice used his power as a Judge to get the property. Do you see the shenanigans? Do you see the mendacities? Do you see the impossibility for a man appointed in 2006 as Associate Justice to have used the power of said office in 1997? These trumped-up charges are only good for a soap opera, though with serious constitutional consequences.
This writer is not arguing that Justice Ja’neh is a saint or that he possesses all the virtues of Mother Teresa. He, too, has shortcomings. The argument here is that you must have good reasons to impeach him. And those reasons must not be beclouded in a thick smoke of political revenge. Neither will it be fair for one Associate Justice to carry the weight for decisions of the Supreme Court; especially when the Court sat en banc. Here, we will not support any effort to remove an Associate Justice because of his opinion expressed in the exercise of his official duties. We abhor the destabilization of the Constitution and the independence of the judiciary.
Judicial Cannon Number Sixteen emphasizes the independence of judges. It instructs that “a Judge should not be swayed away by partisan demands, public glamour or consideration of personal popularity or notoriety, nor be apprehensive of unjust criticisms.” It is worrisome that some Judges may not uphold this cannon when even an Associate Justice can be impeached because of his legal opinion. Former US Judge Andrew Jackson impressively summarized the importance of judicial independence, “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.”
It is also important to mention that the 1847 Constitution of Liberia did not provide adequate protection for Judges as the 1986 Constitution. Most judges ruled in the interest of powerful politicians for fear of removal. The vulnerability of Judges to officials of the True Whig Party contributed to the Coup in April 1980 in which Chief Justice James Alexander Adolphus Pierre was unjustly executed. The protection of judicial officials in the 1986 Constitution is deliberately designed to protect the peace. Public perception, albeit untrue, that to remain on the Supreme Court Bench one must meet the same standard set for cabinet ministers (will and pleasure of the President) is the worst thing that can happen to any court system. It would also be the greatest affront to the well-settled doctrine of Separation of Power.
Now, let us take a brief look at the legislative history of the petitioners and their petition. Representatives Ascarious Gray and Thomas Fallah are executive members of the ruling party, Coalition for Democratic Change (CDC). Both men have no history of raising any issue in the Legislature without the direct approval of President George M. Weah. Both men have shown no interest in resolving land matters in the country. The petitioners are not on record for showing any concern for activities at the Supreme Court until now. More interestingly, the legal team defending the bill of impeachment is the exact same legal team for the ruling CDC. Do we still need to unmask the hidden face? Many pundits and observers of legislative politics in Liberia have reached the conclusion that President George M. Weah is the MAN behind the impeachment of Associate Justice Ja’neh. The writer of this article holds similar view given the fact that the petitioners are patent surrogates of the President.
Speaker Bhofal Chambers and team will fail to prove that the accused violated a single provision of the Constitution as contained in their bill of impeachment. This exercise is a political project of the ruling party in which some lawyers have become unwitting participants. Breaking down the bulwark of an independent judiciary and suffocating the media are signs of dictatorship. All the gains we have made as a nation in getting the hands of the Executive away from judicial functions would be flushed down the toilet if this plot should succeed. This is especially disturbing at a time when the government should be concentrating on the unacceptable economic degradation of our people.
Finally, it is worth emphasizing that the massive condemnation of the impeachment trial is not a product of love for Associate Justice Kabineh Ja’neh. This is simply about the integrity and independence of the judiciary, something all good citizens must fight to uphold. If you allow the Executive to take one inch of your territory, a demand for the entire territory will come sooner than later. The trial of a brother lawyer is politically motivated and replete with untruths. Good Senators must therefore cut that useless impeachment bill into tiny pieces and trash it in the dustbin of history.
About the Author: Amb. Neufville is the Executive Director of the People Action Network (PAN-Liberia). he can be reached via [email protected] or +231777477395.