|By: Arthur B. Dennis|
On July 14, 2008, Abdoulaye W. Dukule’ published an article on the Perspective website, disclosing that President Ellen-Johnson Sirleaf had agreed to testify before the Truth and Reconciliation Commission (TRC). Dukule’ applauded the President’s decision and said it would remove the veil of suspicion over her. If this is true, I beg to differ and call on President Sirleaf to reconsider her decision. Here are my reasons.
Impeachment Hearing, Not Commission Hearing
Under our constitution, there is no single language, requiring a sitting President to testify before a quasi-judicial tribunal or a hand-picked commission. There is also no clear judicial precedent under our laws, requiring a sitting President to appear in court. Even in Clinton v. Jones (1994), a U. S. District Court said, “although presidents have responded to written interrogations, given depositions, and provided videotaped testimony, no sitting president in U. S. history has ever testified or been ordered to testify in open court or before a quasi-judicial tribunal.”
In 2004, President George Bush was summoned to testify before the 9/11 Commission, and he agreed. However, in order to maintain the honor of the presidency, a private-session protocol was arranged and he met the Commissioners in privacy behind closed doors where they held private conversations in top secrecy without a single electronic or print recording. But other public officials and citizens testified in public.
Like the U. S., no sitting President in Liberia has ever testified or been ordered to testify in court or before a commission. Under our constitution, which is modeled after that of the United States, the only public hearing a sitting President is required to face is impeachment proceeding before the House of Representatives. The Senate is also the only organ authorized under the constitution to try and remove a sitting President from office if convicted. For details, see Article 43 of the Constitution.
Therefore, if Ellen appears before the TRC, she would be setting a dangerous precedent for future presidents. Every commission set up to investigate issues of national concerns, for example, corruption in government, would use Ellen as a reference and compel the president in office to appear. It would also open a floodgate for a sitting President to be a target of reckless lawsuits. Let the Pandora Box remain closed.
Comparing Ellen with Fredrick W. De-Clerk
Those who are advocating for Ellen to appear argue that the former South African President Fredrick De-clerk testified before the TRC and so Ellen should do the same. This is a ridiculous comparison. De-Clerk held several top posts, including Minister of Education, in the apartheid regime of President P. W. Botha. President Botha was one of the architects of racism in South Africa. As Minister of Education, De-Clerk supported segregated universities for many years under Botha before ascending to the Presidency.
Therefore, if the constitution of South Africa provides that a sitting or former President can testify before a commission for acts committed while in office, then he was required under the law of complicity to testify. In contrast, Ellen alleged role in the war was played when she was a private citizen. She is now a sitting President and our constitution has no single vocabulary, requiring her to testify before a commission for wrongs committed in private life before she entered office.
Article 61 of the Constitution expressly provides that “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 by him while President of Liberia pursuant to any provision of this Constitution or any other laws of the Republic. The President shall not, however, be immune from prosecution upon removal from office for the commission of any criminal act done while President.”
The language under this immunity clause is crystal clear. In the first context, it provides that no private citizen, public agency or commission, has the power to arrest, detain, or file a lawsuit or judicial proceedings against a sitting President. As indicated above, the only organ of government empowered to summon a sitting President for judicial proceeding is the House of Representatives.
In the second context, the clause (President shall not, however, be immune from prosecution upon removal…) means if the President was removed from office for committing a criminal act while in office, he is not entitled to such immunity. In the third context, the Constitution is completely silent on the immunity for a sitting President for wrongs committed in private or public life before ascending to office.
Constitutional Crises in America and Ghana: Lessons for Liberia
In May 1994, one Paula Jones filed a lawsuit against President Bill Clinton for sexual harassment. The alleged act took place before Clinton entered office. The U. S. Supreme Court ruled that the constitutional immunity does not protect a sitting President for civil acts committed before entering office. However, to preserve the honor of the presidency, a compromise was reached and Paula waited until President Clinton left office.
Ghana also experienced the same constitutional crisis. The citizens witnessed several brutal incidents under the regime of President Jerry Rawlings. However, in the interest of peace and security, they waited until he left office in 2001 before he was summoned to testify before the National Reconciliation Commission.
Therefore, in the interest of peace, we should wait until Ellen leaves office. If the TRC’s statute of limitation expires before she leaves, and there is still an overwhelming demand for her testify, the government of the day would decide. Or a civic group could file a writ now in court, prohibiting the President’s appearance to testify. The Supreme Court would then interpret the constitutional immunity clause which is silent on wrongs committed by the President in private or public life before entering office. Until then, we have no straight-jacket language in our constitution to compel Ellen to testify in public.
The message in this article is basically threefold. First, it is about the honor and dignity of our Presidency. The national pride and symbol of our constitutional democracy is the presidency, and the immunity clause under our constitution was ordained to preserve the sanctity of this office.
Second, it is about peace and security for our motherland. We just graduated from a brutal civil war, and the UN continues to report that the security situation in the country is fragile. Therefore, the legal and security implications associated with the issue at bar could weaken the capacity of the executive branch and undermine our national security.
Third, Ellen’s landslide victory in the 2005 elections indicates that the overwhelming majority of Liberian people have forgiven her for whatever she may have alledgly done in the past. Her victory made Liberia the first to elect a female president in Africa. As such, Liberia should not humiliate its first elected female president in Africa by advising or compelling her to testify in public on war crime issues while serving as President. Let us hold our peace until she leaves office. MAY GOD BLESS LIBERIA.
Editor’s Note: Mr. Arthur Dennis, Social worker and Consultant on Military History and Defense, served in the following positions: Assistant Minister/Special Assistant, Ministry of Rural Development; Assistant Minister for Public Affairs, Ministry of Defense; Deputy Minister for Administration, Ministry of Finance; Deputy Minister for Research and Planning, Ministry of Education; and Assistant Minister for Administration, Ministry of Information, Culture, and Tourism. He can be reached at email@example.com).
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