6 July 2009
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It then disclosed that the report was compiled against two contradictory backgrounds: the first being against rising expectations, fears and anxiety of victims and the second being against alienation, prosecutions and other forms of public sanctions by those who reportedly commanded the forces of arms, financed, resourced and provided political and ideological guidance to several warring factions.
Prosecution and the Burden of Proof
But observers say the degree to which the Commission holds Liberia's recovery and reconciliation to criminal prosecution to the neglect of community processes and social healing was not only unnatural and score-settling, but that it also overlooked major bottlenecks and frustration associated with legal prosecutions.
This, they say, comes into play mainly where the security and protection of witnesses who are likely to be the very victims and the adducing of evidence in the court is concerned.
In their view, the reason was not the dislike of justice as the way to peace and reconciliation, but the determined by experience and the uniqueness of the Liberia civil war that the sole reliance on prosecution and punitive approach would not bring peace, let alone to reconcile a nation whose social divide goes back a 150 years.
"The social divide is the sole cause of the civil war. Once it is systematically tackled, this nation will be healed for this and all times. For the TRC to recommend the prosecution of the victims of that divide in order to restore sanity to the nation is like treating the symptom and whitewashing the cause. This is an error of judgment. And not only that, it mutates the Commission into an inquest or inquiry commission and not one for reconciliation and healing," said one observer.
He said it was not sufficient to determine what caused the war, identify the perpetrators and victims of the war, claim a violation of international law, and conclude that by prosecuting more than 25% of the population, exacting reparation from another 50%, and banishing a significant portion of the political class from public service or participating in political activities and expect peace and reconciliation to flow naturally to Liberia.
"You have to be circumspect and ask critical questions about security, social harmony during the prosecution process, pre- and trial jurisdiction and detention of the accused, technical support and maintenance of the detention facilities and determination of trial period, and most of all the determination of cost and benefit to the Liberian people. "
All these have to be determined. It does not serve the nation well to just make claims and claim to be acting in the interest of justice. What justice do you get when you prosecute one person and make a thousand cantankerous others?" he wondered.
He said it was easier to condemn the public felon than it was to prosecute him. "Granted warlords and their militias are believed to have brutally maimed, disemboweled, decapitated, and killed their victims in the most brutal ways imaginable, but who has the evidence to prosecute half of these people?
"Who has prima facie evidence to present in a court of law to prosecute those who allegedly committed massacres in Lofa, Nimba, River Gee, Bomi, Margibi, Montserrado, and elsewhere in Liberia? Won't the lack of prosecution evidence defeat the cause of the so-called Extraordinary Criminal Tribunal and set the nation deeper into despair and suspicion?"
He said it was not who did what but who can convince the court through concrete exhibits that what was alleged was actually done by the accused. "Does the TRC have any such evidence for the 94 persons and institutions whose prosecution it is demanding as the way to reconciliation?"
Internal Dissent
As though public outcry against the deviation, inadequacy, and in some aspect, overbearing of the TRC report was not disappointing enough, The Analyst has learnt that the report was opposed on many points even before it came to public.
"I did not sign the Consolidated FINAL REPORT, Volume II of THE Truth and Reconciliation Commission of Liberia, and dissent to said Reports..." said Commissioner Cllr. Pearl Brown Bull in a dissenting opinion against the TRC Final Report.
The dissension, dated June 30, 2009, is titled, "Dissenting/Report of Cllr. Pearl Brown Bull Commissioner, to the Final Report Volume 1, Consolidated Final Report Volume 11 of the Truth and Reconciliation Commission of Liberia". The political scientist and Quinnipiac Law School, Connecticut, USA graduate who has been practicing law since 1982 said she was compelled to dissent the report because primarily it flaunts the laws of Liberia.
"The TRC Decisions on prosecution and lustration emanating from the TRC Public Hearings; The Advocates for Human Rights (USA) Diaspora Report; The National Conference on Reconciliation, convened by the TRC, and Co-Chaired by the Governance Reform Commission and 'additional research findings' from others, are not in consonance with [the law]," the former clerk of the Supreme Court and former vice president of the International Federation of Female Lawyers said.
She said the legal instruments of the nation that were flouted by the report included the 1986 Constitution of the Republic of Liberia, the Act to Establish the Truth and Reconciliation Commission (TRC) of Liberia, and the revised rules and procedures of the TRC of April 2007.
Others, according to her, were the act to grant immunity from both civil and criminal proceedings against all persons within the jurisdiction of the Republic of Liberia from acts or crimes committed during the civil war from December 1989 to august 2003 as published in August 8, 2003 and the Supreme Court of Liberia, Decision, Bull Versus The TRUTH And Reconciliation Commission decided January 30, 2009.
Still others, she said, were the results from Beneficent Technology (Benetech) Data base, an American hired company in the United States of America who worked with the TRC Commission, and the Comprehensive Peace Agreement between the Government of Liberia and The Liberians United For Reconciliation And Democracy (LURD), The Movement For Democracy In Liberia (MODEL) and Political Parties, Accra, Ghana, 18th August 2003.
"I cannot concur with my Fellow Commissioners that 'Prosecution in a Court of Competent Jurisdiction and other forms of Public sanction will foster genuine reconciliation, combat impunity to promote justice, peace and security' for any person or persons whether military or civilian who committed crimes or Acts within the period covered 1980- to the adoption of the 1986 Constitution," she said.
She said while seeking to establish justice, the flouting of the law in order to gain justice would not only throw the peace process into jeopardy, but that also it would betray the trust of the Liberian people in the laws of the law. According to her the TRC final report blatantly violated Article 97 (a) and (b) of the 1986 Constitution of Liberia. The article in question provides protection from prosecution of individuals suspected of committing crimes during the military coup and civil war eras.
"I consider it relevant to quote the entire Act enacted by the Senate and the House of Representatives of the Republic of Liberia, August 7, 2003, with Executive Approval on April 8, 2003, by the President of the Republic of Liberia, Dahkpannah Dr. Charles Ghankay Taylor," she noted further.
Titled "An Act to Grant Immunity from Both Civil and Criminal Proceedings against All Persons within the Jurisdiction of the Republic of Liberia From Acts Or Crimes Committed During The Civil War from December 1989 To August 2003, and published Authority, August 8, 2003", the Act reads: "It is enacted by the Senate and the House of Representatives of the Republic of Liberia in Legislature assembled...
"That from and immediately after the passage of this Act, Immunity hereby granted from both civil and criminal proceedings against persons, Officials of Government Representatives of Warring Factions and combatants within the jurisdiction of the Republic of Liberia from all acts, and or crimes committed by them during the 13 (thirteen) years and 8 (eight) months of the civil wars covering from December 1989 to August 2003."
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