After a halting TR process that lasted well over the original timeframe, the Truth and Reconciliation Commission (TRC) released an unedited final report complete with recommendations covering prosecution, continued probe, reparation and restoration, palava-hut style justice and reconciliation, and outright disenfranchisement and denial of the right to hold public service without due process.

The Commission believes the report is comprehensive, well researched, and well targeted to deliver justice to the victims of Liberia’s decade-long civil war and political abuse dating back to 1979. The cutoff date is troubling, but not seriously, to some who would prefer going farther back to the 1950s. But not many agree that the Commission is on the right track. Now the edited version of the report, called the “Final Consolidated Report” is before the National Legislature for review and no one knows for certain what else. Simultaneously, the report is also on the desk of the President of Liberia. The NTLA Act establishing the TRC mandates the President to implement all recommendations of the Commission without provision for the input of the Presidency. From the look of things, the Independent National Human Rights Commission (INHRC) is the institution created and mandated to implement the recommendations on behalf of the government.

The setup seems perfect from the distance. But a closer look reveals a can of worms bordering on the constitutionality and therefore the legality of the TR process, the constitutionality and therefore the legality of the recommendations of the TRC, the political will of the government to view the recommendations disinterestedly, and the capacity of the government to support the process vis-à-vis fears expressed by the population. In the midst of all this, the questions that emerge are these: Can the government implement the TRC report, or fail to implement the report and not have its hands seared? Won’t it be plausible and less problematic to have the citizens speak, through a plebiscite, to the government of Liberia and the international stakeholders in Liberia’s peace and recovery processes, on whether to implement or not implement the TRC report?” The Analyst brings these questions, this week, in Focus. But, first a quick look at the philosophy that went into the preparation of the report, the controversies and posturing generated by the recommendations, the capacity issue, the precarious position of the government, and the hawkish look the international community is likely to give the government of Liberia in case of a misstep.

II. The Philosophy

Originally, stakeholders based their peace formula on the philosophical theory of détente, suspending military approach to the leadership question and adopting the political approach. This is based upon the plausibility of the understanding that by adopting the Accra Comprehensive Peace Agreement (CPA), which recommended the commissioning of the Peace and Reconciliation Commission (TRC), they were providing an enabling environment for the attainment of peace and reconciliation. The formula was this: the victim confronts the perpetrator under a TRC palava hut or public hearing arrangement. The perpetrator concedes or denies the accusation of the victim with due empathy and, where possible, help identify the perpetrator or incident in which the atrocity may have occurred. In the former case, the perpetrator will ask for forgiveness and the victim will grant him or her mercy or make demand upon the perpetrator. In a third case, where the accused was appropriately identified but he or she arrogantly and vehemently denied his involvement with the victim, or even refused to submit the palava hut process, or found to have committed more atrocities than he or she is willing to admit to, such accused will be subpoenaed for criminal trial by a tribunal to be established by the TRC. The formula affirms the general amnesty of the CPA, which requires perpetrators to reconcile with their former victims by publicly confessing their wrongdoings, asking for forgiveness, and receiving forgiveness on the victims’ term. No one rejected this formula for obvious reason, even though it did not go deep down in exacting retributive justice based on an “eye for an eye, a tooth for a tooth” terms. Liberians wanted to put the war quickly and permanently behind them to begin building their lives in a new nation ruled by laws and not men, where no man will be so powerful as to subject the rest of the population to mayhem. They wanted no part in drawn out prosecutions in the name of justice, which will produce nothing but more trouble and deepen the already existing societal crevices. The recalled that, however far it veered off the road of justice and being a brother’s keeper, the war was fought to cover over these crevices, establish democracy, and create opportunity for all. They wanted to establish justice as a way of closing a chapter on a conflict that ended on compromise – on the strength of the mutual need for peace and security and on detente based on mutual fears for hostility and fear of international backlash that though may never come in time as far as hindsight can tell.

Unfortunately, the TRC changed this formula, perhaps for reasons the original formula did not consider – security of the victims being the best guess. Instead of open confrontation between victims and perpetrators, the TRC held open public thematic hearings where speakers after speakers related to what level and extent they were involved in the civil war, including what they thought were their feats – famous and infamous. No victims, no perpetrators; it was all free-for-all rhetoric. Midway in the process that ran well over three years, the TRC reverted to the Kantian concept of retributivist justice that holds that if there is no punishment for wrongdoers, there is will be no deterrence and overriding good for society. By leaning so heavily on punitive justice, the authority of the Commission sought to respond more aggressively to the Utilitarian philosophy, which they obviously interpreted to mean that since there can be no peace without justice, justice, however obtained, leads to peace and reconciliation. This line of belief, brought home to the Liberian peace process, would translate to something like this: unless justice is delivered as aggressively as possible by nailing down the perpetrators of mayhem against innocent women and children, Liberia’s culture of impunity may grow new nefarious roots thereby subjecting the Liberian society to perpetual injustice, human rights violations, and political misfeasance and malevolence. Many stakeholders and rank-and-file Liberians (as a shifting a group), agreed though guardedly, that justice pursued more aggressively and persistently is peace generated and preserved and an enabling environment created for the attainment of reconciliation. The point of departure is not with seeking justice for these ends, but with how the Commission proposed to obtain justice. It is this, “how,” that has generated the controversies that have strapped the TR process to the floor. This group abides in the “compromise theory” of the Utilitarian philosophy of justice that even though the ends of justice is to establish good over evil for society, the bars for the search for justice may be lowered and alternative sought if punishment will not establish justice. But this compromise abidance does not lie well with pro-retributive justice group, giving birth to the controversies.

III. The Controversies: taking sides and posturing

The pro-retributive justice group will prefer to see the full implementation of the recommendations contained in the TRC’s Final Consolidated Report unaltered and unmodified in whatever way, whether for ease of implementation or in consideration of secondary factors that make unqualified implementation near impossible. For this group of Liberians, justice is paramount and that therefore anything done to ease its bite would mean justice denied or a cause watered down and sold to the devils. “Vindictive and engrossed with score-settling with no due regard for consequence” seems the phrase that best describe the underlining thrust of this group’s position. There is the second group that is concerned the methods of seeking justice. This group believes that the Commission’s choice of method of justice delivery is possible only under the following conditions: (1) the situation of international conflict where there is a clear victor and a clear routed vanquished; (2) the situation where the victor has the power and authority to compel the vanquished to amend to its selected method of justice; (3) the situation where the victor has the capacity to establish an impartial tribunal complete with international judges and jurists; (4) the situation where the victor has the capacity to respect the rights and human dignity of those on trial; (5) the situation where the victor has the capacity to provide and maintain the dignified post-trial facilities for the guilty; and (6) the situation where the victor has the capacity to provide maximum security for the facilities and ensure that those in detention do not unduly stir up social dissent against the state and society.

Since this group believes that Liberia, under its present states of security, economic recovery, and reconciliation cannot meet half of these prerequisites for delivering retributive justice, it should reserve the aggressive method as a last resort. It should instead adopt other less aggressive but effective equally justice-exacting methods – methods that may not punish perpetrators as severely as some would like but that delivers peace even more easily, completely, and permanently with the full participation and consent of the aggrieved victims. In this wise, this group will prefer the TRC Consolidated Report reviewed for ease of implementation and attainment of justice based on the terms of the victims and not on the whims of some judge who may not be around long enough to see the consequences of his judgment. They would prefer the nation goes down this path: (1) a palava hut style of justice; (2) prosecution for those refusing to amend to the palava hut style justice; (3) national rehabilitation program for established victims; (4) the institution of major institutional reforms to ensure easy access to justice and to discourage impunity; and (5) the availing of opportunities to get the best out of both victims and perpetrators and to encourage reconciliation. There is also the third aggregate that, even though does not qualify as a group, agrees in principles. It includes the chairman of the International Technical Advisory, the group that add international dimension to the work of Liberia TR process; two dissenting commissioners of the TRC; and a number of legalists – some from the public and recently one from the Liberian Senate. This group contends on technical and legal grounds that the whole debate about implementing or not implementing is useless because the TR process is yet to commence. This group holds that the TRC, plus its recommendation, is unconstitutional and therefore it is illegal an institution to decide and set the tune for Liberia’s peace and reconciliation process. One member of the group questions the authenticity of the report vis-à-vis how the TR Commission translated available data into indictment lists.

The debate seems healthy to this level. The points on all sides are reasonable and have unique places in the equation. But there, unfortunately, are no points of convergence, points required so badly to reach a national consensus for the way forward.

III. Implementation and Precarious Position of Government

Here is where the government – at the levels of the Executive and the Legislature – comes into the picture as crucial deciders, as tiebreakers. But they come at cross-paths in two fundamental ways that compromise their standings. Here’s how: first, the NTLA Act, which created the TRC, involves the two branches of government on the same terms without establishing the priority authority, even as it excludes the Judiciary without explanation. This effectively baffles the government’s effective involvement as tiebreaker.Section 48 of the TRC Act requires the President of Liberia to report to the National Legislature within three months of receipt of the report of the TRC, and on a quarterly basis thereafter, as to the implementation of the Commission’s recommendations. It notes, “All recommendations shall be implemented. Where the implementation of any recommendation has not been complied with, the Legislature shall require the Head of State to show cause for such non-compliance.” But then it requires earlier in Section 43 that “The TRC shall submit a final report containing recommendations at the end of its tenure to the National Legislature”. It is conspicuously and embarrassingly silent on what the Legislature should do with the report, but it proceeded to state that the TRC must “have key findings of the report published simultaneous with its presentation in at least three local dailies in pursuit of transparency and public interest objectives.” The absence of further comment gives force to the conjecture that the National Legislature is only to play a referee role and the Executive, a mandatory implementer role! The second point of compromise is that quite a few of those who make up the current government at the upper level are the very ones who stand indicted for war crimes if they endorse the TRC’s prosecution recommendation for “individuals bearing the greatest responsibility for war crime and crimes against humanity”.

There is a life dilemma here. Had the government been one that is the victor, it would have delivered justice on its own terms. It would have adapted the WWII style justice, where the victorious allied forces selectively hunted the Nazi commanders, or the recent Rwandan style justice where the victorious Tutsi authorities grilled the defeated Hutu perpetrators. It would have simply adapted the half-baked Sierra Leonean style justice where most accused died in detention before the cases against them were concluded. But the Liberian government have no such standing. Go with the majority amnesty view and be damned or uphold the TRC Consolidated Final Report as is and get entrapped by attempts to let the benefit of the doubt lie. There is where the government finds itself – in a fix. And all it hears is “Implement the report!” “Don’t implement the report!”

Not only does the government not appear to have the logistic capacity some Liberians argue is required for standard delivery of punitive justice, it seems impossible even under the Stoicism concept of inevitability, that the government will endorse a justice search that has all the likelihood of boomeranging. No one in government seems ready and prepared to submit to the apocalypse recommended by the TRC and jeopardize their current position by flinging the boomerang of a search for justice. None seems ready and prepared to sanction his own incarceration and/or summary debarment from political activities or the incarceration and/or summary debarment from political activities of his or her colleagues. So, it seems the possibility of modifying the report is being discussed currently in the government cycles as the only way out of the political and legal woods created by the TRC’s report. The Legislature “suspended” hearings on the report shortly before it went for “agriculture break”, promising to introduce the report on the floor upon return. What exactly the Legislature is planning to do with the report remains a matter of wait-and-see. And the Executive seems to be sitting pretty tightly perhaps waiting for the Legislature to act, to remove the legal bottlenecks to the implementation of the report. But this is exactly what the NTLA Act did not recommend – review of the report by a second body, whether independent or attached. There is a catch-22 situation here. The Sirleaf Administration is mandated to implement the report as is, but it cannot implement the report until all legal obstacles to its implementation are removed; the legal obstacles cannot be removed unless the Legislature acts to repeal certain provisions; but the Legislature cannot repeal any provision because the NTLA Act does not authorized to do so. So, the place to begin is with the amendment of the NTLA Act itself.

This raises another fundamental question: “Can the Legislature or the government put its oar in the process without violating the sanctity of its purpose, without stirring up the suspicion of those who believe that the report addressed the needs of Liberia’s peace and reconciliation process?” “What about the international community – what would they be thinking about the government’s respect for rule of law, about having the political guts to implement that which is not in its best interest?” The answers to these questions depend largely on where the respondent stands. But it almost seems clear what the international community’s reaction will be – the administration will be taken to task and in extreme cases technical and financial supports may be reduced or even denied. Hindsight suggests that if that happens, it is ordinary Liberians, the so-called war victims, who will bear the brunt. For now, the Administration and the Legislature seem to have no choice to modifying the report for ease of implementation and the conditions for collision course seems left to fate. But it does not have to be so; there are three windows for escape, one of them more appealing. This is the focus of this discourse. One way is the holding of a national conference to draw up a communiqué regarding what to do with the report. The positive side of this is it taps on the opinions of community, political, traditional, and rights leaders to obtain a national decision – theoretically at least. The negative side of the concept is national conference organizers usually do not only control what form the conference takes and the selection of delegates and speakers, but that they also decide the content and depth of the final communiqué. Recent examples are the TRC consultative national conference to decide the recommendations of the final reports and the July 1998 Vision 2024 National Conference organized by the Taylor administration. The latte conference ended endorsing the administration’s preset policy agenda on politics, the economy, security, and peace. That conference’s peace formula failed to affect the LURD arm insurgency that was unfolding in northern Lofa County at the time. The second window of escape is what Senator Isaac Nyenabo of Grand Gedeh County has already started – the amendment of certain provisions of the NTLA-crafted TRC Act of May 2005. The positive side of the amendment of certain provisions is it will purge the TRC Act and the Commission’s Final Consolidated Report of the legal hurdles and extremist retributive justice postures that stand in the way of implementation “as is”. The negative side or rather the fear is that the Legislature may water down the report – thereby rendering it a paper tiger in the process – besides that the current TRC law makes no room for the review or revision of the report by a second party for whatever purpose. The third window is the conduct of a national plebiscite. The positive side of a plebiscite is it taps directly on the opinion of the Liberia people for the first time – no delegate selection; no contriving of communiqués to fit the agenda of organizers. It has close to the force of the Constitution of Liberia and the power of the people behind it – it puts participatory democracy to work and illuminates the mediators. No negative sides.

IV. Holding a Plebiscite

The conduct of a plebiscite or referendum to decide the way forward is the best way out of these thorny woods. Plebiscite is a vote of all citizens – a vote by a whole electorate to decide a question of importance. It will involve the whole population in decided whether to implement or not to implement the TRC report – shared action, shared responsibility. What is more appropriate under these circumstances than to have the people, themselves, speak to the international community, the government of Liberia, and the TRC without mediators or interveners? What is wrong with bringing the full force of constitutional and participatory democracies to bear on the TRC question? Articles 91 and 92 of the Constitution of Liberia authorizes the National Elections Commission (NEC) to conduct referenda or plebiscites under the auspices of the National Legislature to decide an important national question.

The plebiscite will address this simple but crucial question: Do you want the TRC Consolidated Report implemented by the Independent National Human Rights Commission (INHRC) or do you want it modified in order to get rid of the controversial aspects and clear the legal and constitutional obstacles to its implementation? The plebiscite must, of course, be preceded by the following programs and activities:

(1)   Nationwide scheduled public debates on why and why must the recommendations not be implemented as are.

(2)   Organizers must circulate simple English flyers outlining the strongest points of discontent on all sides of the debate, carefully explaining background concepts, ideas, and perceived consequences.

(3)   Daily vernacular radio programs must air the contents of these flyers.

(4)   ICGL, ECOWAS, EU, U.S., UK, China, France, Germany etc., must be encouraged to offer technical advices and play observers’ role in the plebiscite.

In order to legitimize the plebiscite, the President of Liberia must issue an appropriate Executive Order in consultation with the National Legislature. The outcomes of the plebiscite must be final and enforceable – all other laws, besides the Constitution of Liberia, notwithstanding.

V. Conclusion

After a halting TR process that lasted well over the original timeframe, the Truth and Reconciliation Commission (TRC) released an unedited final report complete with recommendations covering prosecution, continued probe, reparation and restoration, palava-hut style justice and reconciliation, and outright disenfranchisement and denial of right to hold public service without due process. The controversies, which arose over the implementation of the recommendations of the report, produced two divergent, rancorous groups. For the sake of identity, the groups are labeled the “pro-implementation as is” group and he “revisionist group” – the label suggesting each group’s key contention.

All arguments about security, legal propriety, and logistical and political capacity of the government of Liberia to implement the report point to one thing: the Final Consolidated Report of the TRC cannot be implemented without upsetting the already fragile security situation of postwar Liberia. This means the report it has to be revised. But the revision options being discussed, including legislative amendment of certain provision establishing the TRC, have hurdles in tow. This leaves the holding of a plebiscite to end the debacle. The plebiscite is expected to decide the implementation question using the participatory democracy mode that involves the direct response of the Liberia people to a national question.