-As Legislators, Legal experts disagree with him over tenure positions
By Jerromie S. Walters
For more than a week, President Joseph Nyuma Boakai’s appointments to tenured positions have heightened controversy in the public, and some legislators, and legal practitioners don’t seem comfortable with it. The President’s decision to fill roles already occupied by individuals with several years left in their terms has raised concerns about the implications for the security of tenure and political independence in these vital roles.
While his supporters perceive this move as a necessary realignment, many view it as a witchhunt of those appointed by the previous administration. So far, President Joseph Nyuma Boakai has made appointments at the Liberia Telecommunication Authority (LTA), the Governance Commission (GC), the National Public Health Institute (NPHIL), the National Lottery, and the National Identification Registry (NIR), and all of which are institutions which heads currently occupied tenured positions. Amid public concerns, the President’s Legal Advisor Cllr. Bushuben Keita, considered hisdecision right because he says the tenure law violates Article 56 of the 1986 Constitution of the Republic of Liberia.
With this, he told reporters during the Presidential Press Secretary Press conference Friday, February 23, 2024, that the cabinet has advised the President to pay off holders of tenure positions that have ditional years in office. However, he said individuals who still have more years but were openly and actively engaged in campaign activities during the last presidential election will not be compensated.
This is because he says the tenured positions’ laws prohibit holders from engaging in political rallies, utilizing their offices for political purposes, or wagering political party paraphernalia. Cllr. Keita further noted that the President’s authority, outlined in Article 56-E of the Liberian constitution, to terminate contracts with executive branch members at his discretion, underscoring that their tenure is contingent upon the president’s pleasure.
Legislators, and legal experts’ opinion
During a media engagement over the weekend, House Speaker J. Fonati Koffa frowned at the President’s decision to make appointments to tenured positions that are currently being occupied. He argued that it is unjust for those currently intenured positions to be replaced prematurely, as such positions are protected by legal instruments. He said: “I think it is wrong.”
However, the Speaker sounded like one of the few public officials who see no rationale in certain government institutions having tenure position (s). He referenced strives by the former government to revisit the decision but noted that it was politicized.
Reacting to the tenure controversy over the weekend, SinoeCounty Senator Cllr Augustine S. Chea noted: “I disagree with the President’s Legal Advisor and others who said the tenure law violates Article 56 of the Constitution or that the President did nothing wrong by appointing people to positions or offices occupied by tenure holders, citing the Supreme Court’s decision in the Edward Kla Martin, former LACC Chairman’s case as their reliance.”
In his opinion, the President’s Legal Advisor and others misread the Supreme Court’s opinion or don’t fully understand contract law. According to him, the Supreme Court ruled in that case that Cllr. Martin be paid for the unexpired period of his tenure because his contract rights were violated, and the Government must “respect the sanctity of contracts” as enshrined in Article 25 of the Constitution. “Then they interpret that to mean that tenured officials have only contract rights, but no tenure because the tenure law violates Article 56 of the Constitution, which empowers the President to remove at will his appointees.”
Senator Chea: “So what is this contract that the Supreme Court upheld? It is the tenure. And it is the tenure law that provides for tenure for three years, four years, five years, etc.; that certain categories of public officials — i.e., those who have tenure — will be protected from being removed from office by the President at will until they serve their full tenure.”
He believes if the tenure law was unconstitutional, as they said, or if the Supreme Court invalidated the law, the Supreme Court would not rule that Cllr. Martin benefits from that ‘illegal law.’ If a contract is void (not voidable), it is void ab initio, meaning, it is invalid from its very inception or from the day it was made. “Conversely, if the Supreme Court declares a statute or law unconstitutional, it is not law from the day it was enacted; and, therefore, no rights will accrue under that statute or law.”
He added- “The legislative intent for the tenure law is to preserve the integrity, professionalism, autonomy, and independence of certain public institutions so that the heads of those institutions will do their work uncompromised and without fear of being removed by the President at will. And this law promotes good governance. Isn’t it? So, why should anybody have a problem with that? Is it because some people want the jobs so badly and don’t want to wait for the position holders’ tenure to expire, or is it vengeance? Wow! But this is the kind of evil the law was enacted to prevent.”
The Chairman of the Senate Judiciary Committee said appointments to tenured positions where the position holders still have tenure is illegal as it violates the tenure law. He thinks that the President was ill-advised by his Legal Advisor, so he must now act to rescind or revoke his appointments.
Senator Augustine S. Chea: “I will advise the Senate not to confirm anybody so appointed. Because, doing so, will make us accomplices to this law violation.“
What does the House of Representatives think?
The Plenary of the House of Representatives is expected to communicate with the Liberian Senate to put a hold on to the confirmation of those appointed to already occupied tenuredpositions until an investigation is conducted.
In a communication from Bong County Electoral District 5 Representative Eugene Kollie. Rep. Kollie told plenary Thursday, 22 February during its 13th Day sitting of the 1st Quarter, he informed the legislative body that he has observed in recent times the flagrant violation of the statutes (laws) by President Joseph Nyumah Boakai, by appointing individuals to tenured positions which are already occupied.
He is quoted as saying in his communication, “Hon. Speaker and Distinguished Colleagues, On February 20, 2024, His Excellency, Joseph Nyumah Boakai, appointed Mr.Hanson S. Kiazolu as Road Fund Manager to the National Road Fund Authority in obvious disregard to the law establishing such an office. The law clearly states in section 4.3.3, the following: “The appointment of the National Road Fund Manager shall be for a period of five (5) years during which performance shall be monitored in line with their performance contract”.
The Bong County lawmaker said the current Road Fund Manager has only been in office for four (4) months, far less than her tenure. He stated that the statute establishing the Road Fund Office does not give the President any color of right to appoint Road Fund Manager. The Communication further states that the statute further states in section 4.1.1, “The Road Fund shall be headed by a National Road Fund Manager who shall be selected through open advertisement by the Minister of Finance and Development Planning and approved by the Inter-Ministerial Steering Committee before appointment by the Minister of Finance and Development Planning.”
The guarantee of job security, commonly provided in civil service and academic positions, is seen as a crucial factor in ensuring the autonomy and liberty of these services from political influence or bias.
This prompted the Sirleaf administration’s decision to establish through acts of legislation, several government entities including integrity institutions with tenure. Unfortunately, efforts have been made by the immediate past government and are currently being made by the current administration to jeopardize these appointments.
What the entities’ acts say?
According to the 2007 act that established the Liberia TelecommunicationsAythority (LTA), it provides that: “(1) A person may not be removed from office as a Commissioner or Chairman, or from any other office that is made subject to this Section, before the completion of his or her term of appointment unless the person: (a) at the time of appointment, or while holding the position of Commissioner, Chairman or other office, has a conviction or is convicted for any offense in Liberia or elsewhere: i) under criminal law; ii) involving dishonesty or corruption; and iii) where the penalty for such offense includes imprisonment for one year or longer (irrespective of whether such penalty has been or is imposed concerning such conviction); (b) acts contrary to Section 10 (3), and does not remedy the default to the satisfaction of the Minister.
SECTION 5.4 (5.4.1) of the Governance Commissioner Act states that the Commissioners shall serve a term of four (4) years. and may be reappointed for an additional term of 4 years: provided that in no instance shall a commissioner serve more than two terms, whether successive or separate.
It says: “A Commissioner shall hold office for the term to which he or she is appointed during good behavior. A Commissioner may however be removed from office by the President for proven misconduct, gross breach of duty. violation of the Code of Conduct for Liberian Public Servants, conviction of a felony, incapacity and incompetence or other proved acts incompatible with the office. Notwithstanding his or her appointment for a specific term, a Commissioner may resign his or her position upon giving thirty days notice to the President.”
Section 3.4 (A) of the 2016 Act that established the National Public Health Institute of Liberia gives the President the appointing power of the board members with a year term but Section 3.4 (C) of the Act also states specific reasons for their removal. ”A member of the Board shall be disqualified or removed if.: Convicted of any crimes by a competent tribunal consistent with due process of law; or The member is no longer able to perform the duties due to physical or mental incapacity, as certified by at least two qualified medical doctors or psychiatrists; or It is discovered that a member has at any time been convicted of an offense involving dishonesty, whether in Liberia or elsewhere; or The member ceases to be a resident of Liberia.”
PART V (MANAGEMENT TEAM, MEMBERS AND FUNCTIONS) 5.3 of the Act that created the National Identification Registry (NOR) states: “ The Executive Director shall be appointed by the Board of Registrars and
shall have a term of four (4) years; and shall be eligible for reappointment.” Like the 2011 act that created the National Identification Registry (NIR), all of the other acts are legal instruments that regulate their workings and govern them.
Cllr. Lafayette B. Gould, Sr.
Giving his legal opinion on the trending tenure controversy, Cllr. Lafayette B. Gould, Sr. stated: “A. Civil Service Commission; B. Elections Commission; and C. General Auditing Commission The Legislature shall enact laws for the governance of these Commissions and create other agencies as may be necessary for the effective operation of Government.
This simply means that the government cannot function without these three Commissions. It also means that at all times, unless this Constitution is amended, these Commissions shall remain in existence. All other agencies established by the legislature may be dissolved if the government so desires, except those three Commissions.”
However, he said their being established by the Constitution does not mean they have tenures. According to him, their tenures are/were established by the legislature which has the power to take away said tenures.
Cllr. Gould: “When the Supreme Court said in Martin/Kollie’s case that no public official has an entitlement to a public office under a tenure except those the constitution has provided for, it did not mean these three Commissions. To my knowledge, the following are the offices the Supreme Court was referring to: President and Vice President(Articles 50 & 51) Chief Justice, Associate Justices, and Judges of Subordinate Courts of Records (Article 72b) Members of the Legislature (Articles 45 & 48) Justice of the Peace & Notaries Public (Article 55), and?Paramount, Clan & Town Chief (Article 56b). These are the only positions that do not fall under the pleasure power of the President.”
He holds the legal view that the President retains his pleasure power to remove anyone from the other institutions including those established by the Constitution, except that in the case where they may still have time left, they should be paid for the unexpired term. (Article 25 of the Constitution). “They do not have the option whether to accept or reject the offer to be paid off or remain. They can also be removed for proven misconduct which shall be established through a process consistent with due process of Law. Remember, I am talking law, not politics.”
