By Socrates S. Saywon – The Center for Transparency and Accountability in Liberia (CENTAL) through its State of Corruption (SCORE) Report 2021 on the Judiciary outlined the issue of corruption that entangled that branch of the Liberian government.
According to the report, 28% of Liberians said that court services are most prone to corruption – the court services rank fourth among services more prone to corruption. Court services are dispensed by the Judiciary—the branch of government concerned with the interpretation of laws. There is an absolute prohibition of corruption within the Liberian Judiciary.
The SCORE report which was launched Tuesday 28th, September 2021, in Monrovia, stated that the corruption level is high with the majority of the respondents not having confidence in the Executive, Legislative, and Judiciary branches of government to fight the corruption.
The report indicated with support from the Government of Sweden through the United Nations Development Programme (UNDP), forty (40) Billboards detailing court costs, fees, and fines have been posted at courts in every county, including all sixteen (16) Circuit courts and magisterial courts in densely populated areas. It is expected that the Billboards would address exploitation by informing persons seeking court services about amounts to be paid into government revenue for court processes.
And through that, CENTAL disclosed that the American Bar Association (ABA) also supported the Judiciary in erecting signs against bribery and facilitation payments at various courts. In order to address delays in the resolution of cases, the Division of Case Management was recently created to track cases through the judiciary, beginning with when they are filed to when they are finally disposed of. Clerks of the different courts are currently undergoing training on using the system.
The report further narrated that the Judicial Canons regulate the conduct of judges as regards their professional duties, while the Code of Moral and Professional Ethics governs the conduct of lawyers as regards their fellow lawyers, the courts, and their clients. Judges who breach the Canons are subjected to disciplinary measures through the Judicial Inquiry Commission (JIC), while lawyers who breach the Code are probed by The Grievance and Ethics Committee (GEC) of the Supreme Court.
Corruption Undermine The Judiciary
Despite these frameworks, according to the report, however, the scourge of corruption continues to undermine the Judiciary, thereby resulting in the subjection of impoverished Liberians to prolonged pretrial detention, erosion of confidence in the judicial system, and contributing to the violation of fundamental rights (Yelloway, 2020). For instance, according to sources, CENTAL indicated that Section 13.5 of the Criminal Procedure Law is being used by judges to extort monies from criminal defendants. The section provides that the Court can release a criminal defendant without bail where it is of the opinion that said defendant will appear as required.
According to the report, defendants who should ordinarily benefit from this section often benefit under the condition of bribe payment. Also, law school graduates who pass the bar examination are demanded to pay questionable fees before they are allowed to take the oath of lawyers. Those who do not comply stand the risk of not being licensed to practice law.
Further CENTAL indicated in its report saying while the Constitution provides for an independent Judiciary, impediments stand in the way of realizing judicial independence. The imperial power of the President to appoint officials of the entire Judiciary creates a situation where the independence of the Judiciary has become a mirage.
According to the International Crisis Group, the judicial branch has always been little more than an appendage of the Presidency, with successive Presidents appointing all judicial officers and removing those showing any independence (ICGWPCW, 2006).
And although Chief Justice Francis S. Korkpor has stated that the appointment of a Judge by the President requires selecting and vetting, President Weah recently withdrew an appointment to a Judgeship in Bong County following backlash from the Liberia National Bar Association (LNBA) and the Bong County Bar Association over the qualification of the appointee as well as lack of involvement by the Bar (Hot Pepper, 2021) (News Public Trust, 2021).
The report added that the Independent National Commission on Human Rights of Liberia has also lamented that there is no independent constitutional or statutory framework established to vet the competency, integrity, and qualification of would-be judges in Liberia, and absent this framework, the Judiciary is prone to political influences from an imperial presidency which has haunted the Judiciary throughout the historical development of Liberia and eroded confidence (INCHR, 2019).
For example, the report revealed when Stipendiary Magistrate Ernest F. Bana of the Monrovia City Court ruled on November 4, 2019, disagreeing with government lawyers in a matter pertaining to a writ to close down the Roots FM 102.7 radio station, President Weah replaced him three days later (Mamos Media, 2019).
On July 5, 2019, also, in the midst of a widely publicized corruption and bribery trial, Supreme Court justice Joseph Nagbe, who had just been appointed to the Supreme Court following the retirement of Justice Philip A.Z. Banks III, visited Criminal Court C during the testimony of the defendant, Senator Varney Sherman, causing Judge Peter Gbeneweleh to pause proceedings while Nagbe and Gbeneweleh held a private meeting in chambers, CENTAL report narrated.
The report further said that Justice Nagbe, a former senator, had previously co-chaired the Senate Judiciary Committee with defendant Sherman before being confirmed as a Supreme Court justice by the same committee. Many observers saw Nagbe’s visit as an attempt to influence the decision (U.S. State Department, 2019). Barely four (4) weeks later, the Judge ruled that the Prosecution did not prove the allegation of Bribery, Economic Sabotage, Criminal Conspiracy, Criminal Solicitation, and Criminal Facilitation as alleged in the Indictment, and restored the Constitutional and Statutory Rights of the Defendants (Heritage News, 2019).
Kabina M. Ja’neh’s Episode
In November 2020, the report indicated that the ECOWAS Court of Justice found that former Associate Justice Kabina M. Ja’neh’s right to a fair hearing and right to work was violated when he was impeached in March 2019 for granting a writ of prohibition of collection of levy/taxes of US$0.30 (Road Fund) imposed on the pump price of petroleum products. The Court has ordered reparation payment in the sum of US$200,000 as well as reinstatement as an Associate Justice or, in the alternative, grant him retirement with full pension benefits (LawCare Nigeria, 2020). Justice Ja’neh has already been replaced at the Supreme Court. The removal is only the third in the country’s 174-year history—the first in 1914 and second in 1987.
The Liberian Constitution expressly provides that statements made and acts done by judicial officials in the course of a judicial proceeding shall be privileged and not admissible into evidence against them at any trial or proceeding and that judicial officials can only 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 (Liberian Constitution, 1986).
Interestingly, the Senate acquitted former Justice Ja’neh of charges of official misconduct and gross breach of duty but held him for a judicial act (Frontpage Africa, 2019). Different accounts point to how this result may have been achieved. Senator Oscar Cooper accused Pro Temp Albert Chie of changing the rules of the voting at the eleventh hour. Senator Sando Johnson blasted the Chief Justice for not reading a complaint filed by him and two (2) other Senators alerting that Rule 63 of the Senate rules had been tampered with.
“We adopted Rule 63 and Rule 63 says, ‘For every Senator going to vote, there will be a form to be filled out with their name and [they] must sign it.’” Senator Prince Y. Johnson said that he could not rule out the fact that some Senators looking to win reelection next year  may have been engaged in a barter exchange for a vote to impeach Ja’neh in exchange for cash.
The Senator further insinuated that Ja’neh had ignored warnings to step down from the [Supreme Court] bench and take a five-year incentive package offer from the “government of the day” (Ibid). As the Courts remain ‘the last place of hope for people on this earth’, judges must be protected against actions that undermine their independence and ability to diligently perform their duties.
Undermining The Independence Of The Judiciary
The Independence of the Judiciary, according to the SCORE report has also been undermined by resource constraints and limited autonomy through which allowances are no longer being provided to Judges despite Constitutional protection allowing for the same only under a national programme enacted by the Legislature. Previously, the report indicated Judges of the Circuit and Specialized Courts received L$22,950 (approx. US$135) as salary (taxable), US$5,000 as allowances (non-taxable), and 350 gallons of gasoline (The Liberian Observer, 2021). Allowances have now been converted to salaries and reduced by the tax. In its previous state, allowances were not taxed as provided by the Constitution (Liberian Constitution, 1986). Judges have filed a lawsuit against the Weah-led administration before the Supreme Court regarding the reduction (Ibid).
Also, the report stated that while the Financial Autonomy to the Judiciary Act of 2006 provides for four (4) quarterly allotments of budgeted funds, the Judiciary no longer receives quarterly allotments. Since two (2) years ago, the Judiciary began receiving smaller tranches of budget funding on a monthly basis. This change has greatly affected the smooth operation of STATE OF CORRUPTION REPORT 2021 courts around the country as bulk purchases of supplies are hardly possible. Gasoline allocations for personnel are also delayed, and there are no funds to increase the salary of magistrates who have graduated from law school. Judges of Specialized Courts and magisterial courts do not have assigned vehicles. And except for few instances, Judges do not have housing when assigned outside their areas of residence.
The prevalence of corruption in the Liberian Judiciary remains undisputed – with CENTAL further disclosed in its report that Chief Justice Hon. Francis S. Korkpor, Sr. has said that Judges are involved in bribery and has warned them against tarnishing the image of the Judicial Branch of the Government (News Public Trust, 2021).
United States Department of State
In its latest Human Rights Report on Liberia, the report stated that the United States Department of State indicated that Judges sometimes solicit bribes to try cases, grant bail to detainees, award damages in civil cases, or acquit defendants in criminal cases. The report furthered that Defense attorneys and prosecutors sometimes suggest defendants pay bribes to secure favorable decisions from judges, prosecutors, and jurors, or to have court staff place cases on the docket for trial (U.S. State Department, 2021).
It is worth noting, however, the report stressed that efforts are being made to address corruption in the Judiciary. The Judicial Inquiry Commission (JIC) and the Grievance and Ethics Committee (GEC), the bodies responsible for violations of the Judicial Canons of Judges and the Code for Lawyers, have been expanded under the current Bench of the Supreme Court to include prominent Liberians from the civil society – members of the clergy from the Christian and Muslim religions, members of the press, educators, and human rights actors, etc. with the intent is to promote fair play and transparency and engender public confidence in the judicial system (The Judiciary, 2021).
Actions taken against lawyers and judges found to be in violation of ethical standards have ranged from ordering restitution, imposition of fines, suspension, to disbarment and forwarding to the Legislature, names of judges for impeachment in cases of egregious acts, etc. (Ibid).
Ethical Breach Involving Judges
From 2019 to 2021, the report disclosed that Fifty-four (54) complaints of an ethical breach involving judges were submitted to the JIC. One (1) of these cases have been withdrawn by the complainant. Of the twenty (20) complaints received in 2021, the JIC has concluded and made a determination in thirteen (13) cases, finding no ethical breach in four (4). The Chief Justice has written the complainants involved with the four (4) cases to inform them about the JIC findings. The remaining cases await final determination by the Supreme Court. It is important to mention also that there has been no complaint brought against Justices of the Supreme Court for ethical transgression so far.
By September 15, 2021, the GEC had received 23 complaints against lawyers for the year alone. Of these complaints, three (3) have been concluded, four (4) are currently being heard while the other sixteen (16) are pending investigation. Thus, despite the high intake of complaints, the rate at which cases are investigated and concluded is generally slow. For example, the illness and death of GEC members in 2021 meant the body could not convene for three (3) months due to a lack of quorum.
Other structural challenges account for the slow movement of cases. For instance, the report disclosed that both JIC and GEC processes begin with the complainant writing the Office of the Chief Justice, other demands on the office sometimes result to delay in forwarding complaints to the relevant committees. Also, as the Chair of the JIC is an Associate Justice, other demands on the office impede the effective functioning of the JIC.
And since the Supreme Court regulates the practice of law, cases determined by the JIC and GEC have to wait until such time when the docket of the high court can allow the cases to be heard. In a particular case concluded by the JIC in 2016, the Supreme Court delivered a final decision in 2021. But there are instances where the nature of cases, unavailability of the parties, and unavailability of evidence cause delays in the determination of cases at the committee level. It is worth noting here that strict rules of evidence are not applied during these proceedings.
Final Determination Of Cases
Delay in the final determination of cases also adversely impacts the integrity and standing of accused judges and lawyers and as such, there is a need to speedily decide said ethical matters. There is a need for structural changes in order to improve these redress mechanisms. With half of the eight-member JIC being judges in active service who are already loaded with court tasks, replacing them with former judges would be appropriate and would lead to the speedy determination of cases.
As is done with election matters, cases involving ethical transgression should be prioritized by the Supreme Court for final determination as these go to the core of judicial sanctity. There is also a need for public sensitization around the existence of these committees to spur reporting of cases. Committee work should also be expanded to provide support to victims or whistleblowers around receipt and hearing of complaints as the current location of the committees (Monrovia) hinders access by those far away, the CENTAL report said.
Main photo: Temple of Justice (Supreme Court)) /Smart News Liberia