Liberia: Ambassador Brown to Senate - NEC Nominees' Confirmation Would Set Dangerous Precedence

Monrovia — Appointing qualified women into leadership of Liberia is the right thing to do. However, where precedence for good governance is to be established by the action, and the rule of law and consolidation of the country's democratic aspiration is to be seriously impacted; it is never enough to seek only to do the right thing. The right thing must be done the right way.

Without prejudice to the qualifications of Mrs. Davidetta Browne Lasannah, and Mrs. Teplah Reeves, their recent nominations as Chair and Co-Chair of the National Elections Commission will establish a dangerous precedence that reasonably extends to undermining the independence and autonomy of the NEC, and to violate the spirit and intent of the law. It also risks security of tenure and trivializes the important confirmation power of the Honorable Liberian Senate.

Therefore, I respectfully request the President to withdraw the nominations, and humbly appeal to the Senate not to confirm.

The authority of the President to appoint the Chair, Co-Chair and members of the National Elections Commission of Liberia is derived from Section 2.2 of the New Elections Law of Liberia, which states:

The President shall nominate and, with the consent of the Senate, appoint and commission the Chairman, Co-Chairman and other members of the Elections Commission, who shall hold their offices during good behavior for a period of seven (7) years, effective as of the date of their commission; they may however be removed upon proof of misconduct. (emphasis mine)

Accordingly, the Co-Chair, in the person of Mrs. Davidetta Browne Lasannah, has been recently nominated, confirmed, appointed and commissioned "for a period of seven (7) years". While she can be removed "upon proof of misconduct", short of resigning (no free person can be forced to work), it follows that she can neither be removed, nor have her seven-year tenure interfered with or disturbed, after her commission. While Co-Chair Lasannah still occupies the office, to nominate another for the same office is to constructively disturb Co-Chair Lasannah's tenure, and possibly, cause her removal, outside the contemplation of the law.

Obviously, the law could not have intended that Mrs. Lasannah be commissioned Co-Chair for seven years, and have the same position of Co-Chair, without the expiry of her tenure, resignation, or removal upon proved misconduct, opened for nomination by the President, and be exposed to Senate confirmation, processes whose constructive intent is to cause a removal, and replacement.

Some may contend that Mrs. Lasannah is not being removed but rather is being promoted within the NEC. As such, no harm is done to the spirit and intent of the law. This reasoning does not account for the entirety of the process of the 'promotion'.

Far from the 'promotion' being a transfer or elevation that is solely internal to the NEC, this 'promotion' is being designed and executed from outside of the NEC. The 'promotion' of Mrs. Lasannah, who is already in-tenure, is at the instance of the President, and requires the confirmation of the Senate.

Effectively, two of the political branches of the government from which the NEC should be shielded, are offering the recently-commissioned Co-Chair a 'promotion', only a few months into her seven-year tenure.

By its most basic definition, promotion is a reward. When given by a political official, it is a political reward. Simply put, political rewards are intended to influence. By law intended to ensure the credibility of its functions, the NEC must continue to be, and publicly regarded as, beyond the reach of political influences and interferences, especially in the award of political considerations, rewards/promotions, and favors because they present opportunities to corrupt the autonomy and independence of a Commissioner, and by extension, the Commission.

There are three possibilities to which the NEC is now exposed by this presenting presidential 'promotion':

Mrs. Lasannah and Mrs. Reeves are both confirmed;

Mrs. Lasannah and Mrs. Reeves are both denied;

One is confirmed and the other is not.

If Mrs. Lasannah is confirmed and subsequently commissioned as Chair, the question arises as to whether or not the seven-year tenure of Chair of the NEC can apply to her, after she has already served the Commission for a few months into her seven-year tenure as Co-Chair. What if she had served six out of her seven-year tenure; would she be Chair for a year, or a new seven year? Should the country and the NEC have to deal with this situation which is being imposed upon it by the President, and the Senate?

If Mrs. Lasannah is denied and Mrs. Reeves is confirmed; how is the country, and its democratic aspirations, not ushered into a precarious place where a commissioned Co-Chair, short of the expiry of her seven-year tenure, is to confront the real possibility of being removed by 'promotion', and replaced by another. Or, can Mrs. Lasannah simply return to not being 'promoted'? What if the President proceeds to commission Mrs. Reeves, after her successful confirmation, as Co-Chair of the NEC?

Is there any law to prohibit the President from doing so, or any future Presidents, or Senate, from following in this precedence - from effectively removing tenured officials by 'promoting' them, and denying them at confirmation, while simultaneously confirming their replacements? Does this precedence not dangerously extend to removing the security of tenure and independence of tenure officeholders, and effectively undermines the intent of the good governance practices for which tenure positions were created?

The harm to the spirit and intent of the law therefore is that such 'promotions' present the political branches, from whose reach, influence and interference the law intended to protect the NEC and its officials, with the possibility to interfere in the NEC, disrupt tenure, and cause the removal of a commissioned member of the NEC. Even if speculative, it is not outside the boundary of reason, and importantly, falls within the sphere of political interferences and influences from which the law intended to shield Commissioners and the Commission.

Beguiling this precedent, were it to be established, is also the harmful interference to Commissioners impressing that their services can be politically rewarded with 'promotions', even as they are in-tenure. Suffice to say, where a scintilla of possibility for presidential consideration for rewards/promotions for tenured Commissioners and officers of the NEC is permitted to exist, so too will be the human need to 'act favorably' to receive and benefit therefrom, if not immediately, then at some time in the future. This is interference!

Accordingly, can the independence of a Commissioner, or the autonomy of the Commission be considered reasonably to be incorruptible, protected and preserved, as the spirit and letter of the law intended, if a possibility for 'promotion' to extend a tenure is allowed to exist - a possibility which a President can exercise, and a Commissioner, in active tenure, is allowed to expect, and accept?

To remove from office is legally defined as depriving the officeholder of the office, either expressly (by notice) or implied (by appointment of another). By nominating another to the office currently occupied by Mrs. Lasannah, and undertaking the process of confirmation by the Senate; can it be reasonably argued that Mrs. Lasannah still holds the office? If she still does, why are the political branches actively and publicly processing another for the same office? Is it logical to assume that the President has nominated, and the Senate is proceeding in confirmation, to fill a non-existent vacancy?

Can it be the contemplation of the law that a President may act, including through 'promotion', to create a vacancy in the NEC? How does this extra-presidential power, if granted, not risk the intended independence and autonomy of the NEC?

Indeed, the President can fill a vacancy in the NEC when a vacancy comes to naturally exist. But in doing so, a President cannot be expected to create new ones which s/he can fill simultaneously, and thereby risk the removal of a commissioned member, including by an avenue of 'promotion' to serve in other positions on the Commission, or outside of it. This is political interference - plain and simple!

As it is with other public officials in the Executive Branch, the Chair, Co-Chair, and other members of the Elections Commission, once nominated, confirmed, appointed and commissioned, no longer fall within the ambit of the constitutional regulatory 'Pleasure Power' of the President. This is so because Article 89 of the Constitution establishes the Elections Commission as one of three Autonomous Public Commissions.

Although the Constitution establishes the Elections Commission, it specifically does not include its members to the list of public officials to be appointed by the President under Article 54, nor subjects them to being removed at the pleasure of the President, in accordance with Article 56. To do so, would have been to undermine the autonomy conferred, and independence intended by the Constitution. Section 2.9 of the New Elections Law further reinforces the Commission as an autonomous agency of the government, and independent of any of its branches.

Finally, these nominations offer the need to exercise special attention so as not to trivialize the constitutionally-provided check and balancing function of the Honorable Liberian Senate in executing its powers to confirm. When, for instance, an individual is nominated to a tenure position, secures the confirmation of the Senate to serve, gets commissioned, and in relatively short order, gets renominated to another position, and is returned to the Senate for yet another confirmation; it becomes difficult not to view the confirmation process as trivial.

Importantly also, even if unintended, such revolving-door confirmations involving tenure officials come to be the tools to undermine the values and essence of tenure positions which the Legislature itself saw fit to create.

No power given by the Constitution is intended to be trivialized without consequences to the democratic health and wellbeing of any nation. If a precedence exists for these nominations, and legislative actions, they are wrong.

A wrong is never corrected by a desire to repeat it. It is corrected by a willingness to discontinue its practice.

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