-- Chamber Justice Kaba's Writ of Prohibition called into question
The Supreme Court is expected to decide whether former Minister of State for Presidential Affairs, Nathaniel McGill, should have testified before the Liberia Anti-Corruption Commission (LACC) after being accused of impropriety regarding a supplementary payroll scandal over the inclusion of 728 names outside the framework of the Civil Service Agency (CSA).
The Court is also expected to decide whether a presidential appointee like McGill, who now serves as the Senator of Margibi County, is entitled to absolute immunity and unrestricted protection from judicial review for his alleged unlawful actions.
The High Court's intervention in the LACC's investigation resulted from an alternative writ of prohibition issued by the Presiding Chamber Justice Yussif Kaba.
Justice Kaba issued an alternative writ of prohibition, temporarily halting the LACC's investigation until a meeting between McGill's legal team and the LACC.
Before the stay order, McGill on Wednesday, August 21, appeared at the headquarters of the LACC and started complying with the anti-graft entity.
The LACC sought to determine if the supplementary payroll was established under McGill's instructions and whether any illegal activity occurred.
McGill was also requested to provide written documentation on the issue. These legal notices, commonly referred to as Subpoena "ad testificandum" and Subpoena "duces tecum," require a witness to appear and testify about their knowledge on a specific matter before a court or administrative body. They also mandate a witness to present specific written documents, books, or papers relevant to the case, held under their control or in their custody.
With these two subpoenas, LACC was determined to establish whether the supplementary payroll, was established under McGill's instructions. And, if so, LACC wanted to determine whether a crime was committed and who committed it.
Interestingly, instead of continuing with the investigation, McGill invoked the doctrine of presidential immunity and constitutional protection to shield himself from any judicial review or adjudication-- asserting that certain actions undertaken as Minister of State were protected under Article 61 of the 1986 Constitution.
Under this doctrine, all matters discussed and resolved by the President are constitutionally immune and protected under Article 61 of the 1986 Constitution of Liberia.
As such, discussions, conclusions, and holdings reached by the President, McGill argued, shall not and are never to be investigated by LACC.
According to McGill, he is legally immune from criminal investigations, as his actions were carried out under the President's instructions while serving as the President's Principal Assistant. He argued that presidential acts are protected from investigation under the Constitution.
McGill further argued that the payroll padding questioned by the Ministry of State done by him is an action of the President of the Republic of Liberia.
Regardless of whether it is acceptable or not, the LACC cannot question this action.
"All and every official act by the Minister of State is covered by immunity, including but not limited to signing pay payrolls and checks for employees and contracts within and without the executive branch, and such actions being the works of the Office of the President are protected under executive privilege, and the Minister of State for Presidential Affairs is statutorily and constitutionally prohibited from divulging certain information in any investigation proceedings, especially regarding national security, diplomatic negotiations, or internal executive deliberations and administration," McGill noted.
According to McGill, he is legally immune from all criminal investigations, because his actions then as Minister of State were performed based on instructions and directives given by the President, whose office he formerly occupied as the President's principal assistant in keeping with the law.
McGill however revealed Article 61 of the 1986 Constitution, which provides, "The President shall be immune from any suits, actions or proceedings, judicial or otherwise, and from arrest, detention or other actions on account of any act done by him while President of Liberia pursuant to any provision of this Constitution or any other laws of the Republic."
Do presidential directives come with immunities?
While the former minister Senator McGill is seeking recourse from the Supreme Court in response to ongoing investigations by the LACC, which suggests that he should not be held personally accountable for implementing a directive from his boss, the case of former Defense Minister Samukai serves as a notable legal precedent in this context.
Samukai, similar to McGill, claimed to have followed instructions from former President Ellen Johnson Sirleaf in the misappropriation of funds related to the Armed Forces of Liberia (AFL). Despite this defense, the Weah-led government prosecuted him and he was found liable.
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The ruling in that case emphasizes the principle of individual responsibility for government officials, even if instructions were given by superiors. This underscores the message that adherence to potentially illegal directives from higher authorities is not a valid defense.
McGill's decision to turn to the Supreme Court may be a strategic move to proactively prevent or delay investigations that could lead to legal repercussions. This approach suggests a concern that, like Samukai, he could face personal liability for any misconduct, irrespective of his claims of acting on presidential directives. The fear of potential legal and political consequences seems to underpin McGill's actions, particularly in light of the court's stance in the Samukai case.
McGill's strategy is influenced by the ruling against Samukai and the implications it carries for his situation. The implications of the judiciary's decisions extend beyond legal considerations to political repercussions, which could impact McGill's standing and credibility. The legal precedent established in cases like Samukai's underscores the importance of individual accountability in public office and the judiciary's role in upholding the rule of law impartially.
