Liberia has a Republican form of government with three separate coordinate branches: the Legislative, the Executive, and the Judiciary. The Executive enforces the laws and the Judiciary interprets them. The Legislative branch plays a more central role in this system. It makes laws, represents the people, and exercises oversight. The powers to make laws, and represent the people are spread over many provisions of the Liberian Constitution, especially under Chapter V. The third function, which we refer to as oversight, is not expressly set forth in the Constitution. However, legal authorities are in consonance that lawmaking and representation cannot be achieved without legislative oversight - the process of reviewing, monitoring, and supervising government ministries and agencies. Any legislative body that fails on its oversight responsibility cannot properly represent the people or make good laws.
This article endeavors to explore the capacity of the legislature to exercise its oversight responsibility within the context of the U.S. Treasury Department Sanctions on three officials. Attempts will be made to find out why the lawmakers could not raise some of these issues before the Americans since the allegations have serious constitutional and statutory implications.
The United States Department of the Treasury's Office of Foreign Assets Control (OFAC) designated three Liberian government officials for their involvement in public corruption in Liberia. The Minister of State for Presidential Affairs Nathaniel McGill, Solicitor General Sayma Syrenius Cephus, and the Managing Director of the National Port Authority Bill Twehway are designated pursuant to Executive Order 13818, which builds upon and implements the Global Magnitsky Human Rights Accountability Act and targets perpetrators of serious human rights abuse and corruption. These individuals are being designated for being foreign persons who are current government officials who are responsible for or complicit in, or who have directly or indirectly engaged in, corruption, including the misappropriation of state assets, the expropriation of private assets for personal gain, corruption related to government contracts or the extraction of natural resources, or bribery.
In response to the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC), President George M. Weah suspended the three officials with immediate effect to enable them to face investigation. If the investigation affirms the U.S. allegations, they could be held for violating several provisions of the Penal Law of Liberia including bribery, extortion, fraud...
With this understanding, we can now focus on the real issues. What is the role of the Legislature in all this and what are the relevant committees? Did the legislature receive Annual Reports from the Ministry of State, the Ministry of Justice (MOJ), and the National Port Authority (NPA)? Are government contracts awarded in keeping with procurement laws? Is there any legislative oversight? These concerns are important because Article 3 of the Liberian Constitution promotes the principles of separation of powers and checks and balances. These principles make up the foundation of our democracy and serve to elevate institutions over individuals.
The U.S. Department of the Treasury's OFAC designated Nathaniel McGill for allegedly organizing warlords to threaten political rivals. Can the National Security Committees in both the Senate & House of Representatives speak to this? Part of the job of this important committee is to regularly meet with heads of security institutions and look at the stability of the country. McGill is also accused of selling government jobs. The appointment process has three stages, (1) nomination, (2) confirmation, and (3) commissioning. Under Article 54 of the Constitution, the Senate must consent to these nominations before appointments are made. How could the folks in Washington know about appointees buying jobs and the lawmakers in Monrovia have no idea? The U.S. Treasury also accused McGill of manipulating public procurement processes to award multi-million dollar contracts to companies in which he has ownership. It is part of the oversight responsibility of the lawmakers to review the procedures for awarding government contracts. The procurement process is one way the resources of the country can be equitably divided. No need to have a legislature if the investigation confirms that McGill has been dictating to the Public Procurement and Concession Commission (PPCC). The U.S. Treasury Department goes further by accusing McGill of using government funds allocated to other government institutions to run his projects. The Committees on Public Accounts & Expenditures and Ways, Means & Finance must be periodically informed on major government expenditures. Where are the reports?
Sayma Syrenius Cephus isaccused of intimidating other prosecutors in an attempt to quash certain investigations involving money launderers. Heis also accused of developing underground relationships with suspects of criminal investigations and has received bribes from individuals in exchange for having their cases dropped. Wow! Wait a minute! Even if nothing else is in the Annual Report of the MOJ, at least the list of cases prosecuted and dropped over the period must be indicated. The Judiciary Committees of both Houses must read the MOJ reports with the help of lawyers.
Bill Twehway is the head of the NPA, an agency that falls under the Committee on State Enterprises & Autonomous Agencies. One of the functions of this committee is to ensure the compliance of public corporations with the Acts that created them. The committee advises the plenary on measures to take when these corporations violate the procurement laws. The U.S. Treasury says that Twehway secretly formed a private company and unilaterally awarded a contract for loading and unloading cargo at the Port of Buchanan. I am baffled by the fact that the supervising committee did not see it. He is also accused of orchestrating the diversion of $1.5 million in vessel storage fee funds from the NPA into a private account. If the investigation affirms this, Twehway will have a serious problem but we will still ask for the oversight responsibility of the Committees on Public Accounts and Expenditure in both Houses.
Many lawyers and critical thinkers will look at the findings of the investigation. If the designated officials are held under Liberian laws and dismissed, the legislature would have done the greatest disservice to the nation. Two schools of thought will then emerge. Either the Legislature is complicit in these acts or they cannot simply perform their oversight responsibility.
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If the problem is the lack of capacity, then that body must immediately reorganize its committees. Lawmakers should be put on committees based on their professional backgrounds. For example, if a medical doctor is elected to the Senate, he can better perform as Chairman of the Committee on Public Health regardless of his political party. A lawyer should be put on the Judiciary Committee; Engineers on Public Works Committee; Accountants, Economists, and Managers can form the committees on Ways, Means & Finance or Public Accounts and Expenditures. YOU CAN NOT SUPERVISE WHAT YOU DO NOT KNOW!
It is also important to state that the Legislature does not need formal complaints or petitions to investigate doubtful activities in government. As part of its function to supervise the other branches of government, the legislature has broad oversight authority to conduct investigations with any reasonable connection to either its legislative or impeachment authorities. They have the power to make witnesses appear, to take testimony under oath, and to hold in contempt anyone who unjustifiably refuses to cooperate. If the Legislature effectively employs its oversight authority, it will identify and advise against legal and administrative problems.
Finally, it is wise to deal with the three officials and subject them to serious investigation. But we must never lose track of the real governance issue - the collapse of legislative oversight.
Rufus Dio Neufville is a lawyer and the Executive Director of the People Action Network (PAN-Liberia). He could be reached at [email protected].
