The New Dawn (Monrovia)

Liberia: Grace Kpaan Saga - House of Representatives in Constitutional Error

opinion

Fellow Liberians, Greetings in the Name of God Almighty. May the God who made the heaven and the earth bless you, and by extension may He continue to prosper our dear country, Mama Liberia.

We are one people with one destiny. Liberia as a nation has come a very, very long way since the founding fathers signed the declaration of independence in the historic Providence Baptist Church, on July 26, 1847. We have also witnessed the bloody coup d'tat of April 12, 1980, and the devastating civil strife from December 24, 1989 to August 11, 2003, which ravaged our country, decimated and dissipated our population to the point where thousands of our citizens were reduced to mere beggars living at the mercy and goodwill of others.

Thanks to the understanding, collaboration and cooperation of every Liberian, and with the assistance of our international partners, a Comprehensive Peace Accord to end the bloody conflict was signed in Accra, Ghana. Today, our country is enjoying a reasonable level of democracy, peace and stability based on good governance and the rule of law.

We, therefore, have a national and patriotic responsibility to continue to conduct ourselves in such a manner that promotes the greater good of our country. One way in which we can promote the greater good of our country is for all of us to believe in the rule of law and to practice our democracy in a way which is consistent with the provisions and principles of the Constitution of the Republic of Liberia.

We can only succeed in rebuilding a better Liberia, and leaving a lasting legacy for posterity, if we are willing to stand united as one people irrespective of our ethnic, social, cultural or political differences. We must see ourselves as Liberians first and take a cue from our National Anthem which says....'In union strong success is sure, we cannot fail.'

There should be no place for the practice of divisive sectional and tribal politics - This man is the child of a 'country woman' and that 'woman is the daughter of a congo man'; so let us bicker and fight each other. We must constantly and intentionally seek to avoid the temptation of going back down this dark road of the past because it will only escalate tension in our society, waste our valuable time and resources, and stall the great progress which we can collectively achieve by acting together in good faith with malice for none, but with love for all.

Fellow Liberians, my main aim for writing this statement is to express my concern as a citizen regarding what happened on Capitol Hill between our Honourable Representatives and citizen Grace Kpaan last Thursday, 21st February, 2013. I felt very sad in my spirit and I pray that never again will Liberians have to witness such an ugly scenario.

Let be very clear in stating from the onset that I am not writing purposely to defend Madam Grace Kpaan. I do not know Madam Kpaan, personally, except from a distance as a public figure, being the Superintendent of Montserrado County, Republic of Liberia. Therefore, the comments and clarifications I shall give herein are voluntary; and are primarily intended to defend our Sacred, Organic and Supreme Law, the Constitution of the Republic of Liberia. Our public officials, including the members of the Legislature, have taken an oath to uphold, protect and defend the Constitution of the Republic.

Let me reiterate fellow Liberians, that the new Liberia we are trying to build must be rooted and anchored on the foundation of the rule of law, with respect for constituted authority. As such, no citizen, irrespective of your status or political connection, should be encouraged to disrespect, disobey or intentionally challenge the legal and constitutional authority of any Branch of our Government.

Article 3 of the Constitution of the Republic of Liberia states:

'Liberia is a unitary sovereign state divided into counties for administrative purposes. The form of government is Republican with three separate coordinate branches. The Legislative, the Executive and the Judiciary. Consistent with the principles of separation of powers and check and balances, no person holding office in one of these branches shall hold office or exercise any of the powers assigned to either of the other two branches except as otherwise provided in this Constitution; and no person holding office in one of the said branches shall serve on any autonomous public agency.'

Note that the three branches are separate and coordinate. For the purpose, however, of fulfilling the Constitutional requirement on the Separation of powers and check and balances, the three branches are required to collaborate, cooperate and complement each other so as to ensure that the best of our national interest is protected and advanced. This collaboration does not make one branch greater or superior to any of the other two....the three branches are separate but each branch has the same and equal degree of Constitutional powers, as it relates to their specific Constitutional functions; as such, it will be an overlapping of function should one branch choose to usurp the Constitutionally- assigned role of any of the other two branches.

For example, the Legislature has a Constitutional mandate to craft bills and the Executive on the other hand has the check and balancing responsibility under the Constitution to review those bills before signing them into law. The Executive may choose to either sign the bill (s) or veto it with his/her objection and send it back to the Legislature. (See Article 33 of the January 6, 1986 Constitution)

In the same way, the Executive power of the Constitution is vested solely in the President who is Head of State, Head of Government and Commander-in-Chief of the Armed Forces of Liberia. The Executive has the power to nominate certain officials like Cabinet Ministers and their Deputies, Chief Justice and Associate Justices, Superintendents, etc., but the Legislature has to play its check and balancing role by giving its consent before the President's nominees can be appointed and commissioned.

Finally, the judicial power of the Republic of Liberia is vested solely in the Supreme Court and subordinate courts. The Supreme Court is the Head of the Judiciary. The Judiciary has a Constitutional function to interpret the law and the power to sentence a person convicted of a crime which has been tried in a court of competent jurisdiction, consistent with due process and the principles on fundamental rights laid down in the Constitution. The Judiciary also has a check and balancing role under the Constitution to ensure that all bills crafted by the Legislature and signed into law by the Executive, are consistent with Constitutional provisions. The Supreme Court has the Constitutional mandate to declare unconstitutional, any law, treaties, customs, decrees and regulations found to be inconsistent with the Constitution.

Clearly, we have seen that the Constitution specifies the separate role and functions of each branch of government. The Legislature makes the law; the Legislature does not have any Constitutional mandate to assume the role of a court of competent jurisdiction...this is the function of the Judiciary; the Executive enforces the law; the Executive does not have any Constitutional mandate to craft bills; that is the function of the Legislature....the Judiciary interprets the law.

The framers of our Constitution realized that as humans we have a tendency to err because to err is human but to forgive is Divine. The framers designed the Constitution in such a way that the various provisions have safeguards, check and balances, to protect the citizen's fundamental rights from the possible misuse and abuse of Constitutional powers by anyone who may have the authority to exercise it.

For this reason, many of the various provisions of the Constitution are interrelated and these interrelationships must be referred to and observed when any Constitutional action is being considered. For example, the issue of Contempt of the Legislature in Article 44 of the Constitution cannot be discussed in isolation and without regard to the principles on Fundamental Rights in chapter III of the same Constitution.

We must commend our brothers and sisters in the Honourable House of Representatives for their good intention to work in the interest of the Liberian people. But good intention must be backed by the law. Article 11(c) of the Constitution states that 'All persons are equal before the law and are therefore entitled to the equal protection of the law'.

Yes, the Constitution gives the Legislature contempt power to punish a contemptible act by 'reasonable sanction after a hearing consistent with due process.....and any sanction imposed shall conform to the provisions on Fundamental Rights laid down in this Constitution'.

Note that the punishment or sanction for Contempt should not only be reasonable, which means that it must not be excessive and harsh; but it should also not violate the citizen's Fundamental Rights. The decision by the Honourable House of Representatives which sought to detain citizen Grace Kpaan, at the Monrovia Central Prison for 30 days, before it was reduced to 72 hours, was unconstitutional and a clear violation of citizen Grace Kpaan's fundamental rights, and for that matter, the rights of all citizens, as in enshrined in Article 21(f) of the Constitution of Liberia, which reads thus:

'Every person arrested or detained shall be formally charged and presented before a court of competent jurisdiction within forty-eight hours. Should the court determine the existence of a prima facie case against the accused, it shall issue a formal writ of arrest setting out the charge or charges and shall provide for a speedy trial. There shall be no preventive detention.'

Is Citizen Grace Kpaan a person? Was Citizen Grace Kpaan ordered detained? The Constitution does not give anyone within the Republic of Liberia, or any branch of government for that matter, the authority to detain any person for more than forty-eight hours without formally charging that person and sending him/her to court. The Honourable House of Representatives would have been within the confines of their Constitutional mandate to detain Citizen Grace Kpaan for the 48 hours as stipulated; but they acted in Constitutional error, as have been pointed out, by issuing a 72 hours detention order.

Action like this kind is reminiscent of the hey days of the great old True Whig Party hegemony where it has been said that some members of the Legislature frequently misused and abuse citizen's right simply because they were Senators or Representatives. For example, if your goat went to the farm of a Senator or Representative, at the time and chewed up some of his cassava leaves, that Senator or Representative could jail or flog you with impunity....those were the dark days of the misuse of power and official oppression which is tantamount to a first degree misdemeanour under our current Penal Law, Subchapter E, 12.70.

It states: 'A person acting or purporting to act in an official capacity of taking advantage of such actual or purported capacity commits a first degree misdemeanour if he:

(a) Knowingly subjects another to unlawful arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien, or other infringement or personal or property rights or

(b) Denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity.

Maybe our Honourable members did not know that their action violated the Constitution, and by extension, violated the Fundamental rights of Citizen Grace Kpaan. Now, we know.

Please Read Your Constitution Always!

About the Author:

Alphonso Richardson

Cell: 0880690556

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