The Government of Liberia(GoL) has lost four landmark tenure cases to heads of four lines of agencies.
The Supreme Court on Wednesday, April 24, 2024 revoked President Joseph Nyuma Boakai’s nominations of several individuals to tenure positions.
The Court on Wednesday ruled that the act of President Boakai’s is not in the pale of law and there was a violation of due process.
The court said the petitioner’s rights were violated, stating that tenure should be respected while unexpired.
The court decision means that that petitioners Andrew Peters of the National Identification Registry, Atty Garrison Yealue of the Governance Commission, Edwina Crump Zackpah of LTA, and Reginald Nagbe of the National Lottery Authority will remain in the positions they are accorded due process as provided by law.
This came after those listed upon filed a separate petition on February 22, 26 and 27 2024, praying for the writ of prohibition to be issued on the Executive Branch of Government. They contended that President Boakai proceeded wrongly knowing that their tenure has not expired as per the Acts of their various institutions and could not give reasons on removing them from positions or given due process.
In response, Justice Minister Cllr. Oswald Tweh said no law has been violated and he maintained that their positions that holding public office is not a right but privilege, adding that the petition was prematurely filed.
Cllr. Tweh said that the president nominated individuals who have not been confirmed by the senate neither commissioned whereby cause those petitioners any injuries.
The court decided to consolidate as per the actions involving a common question of law or fact pending before the court of record. The court’s decision in consonance with law and entrenched in a litany of opinion of the Supreme Court says that upon the motive of any party or sua sparte, the court may order a joint trial of any or all the matter in issue the consolidation of the actions in-other to avoid unnecessary cost or delay.
Handling down the ruling on Wednesday, April 24, 2024, Chief justice Sie-A- Nyene Youh said although Article 89 of the Constitution of Liberia specifically created three (3) autonomous public commissions, that same Article authorizes the Legislature to create other agencies as may be necessary for the effective operation of Government and enact laws for their governance.
The Act passed by the Legislature is presumed to be constitutional unless the contrary is clearly shown; that the Legislature is presumed to have acted constitutionally in passing a statute and that courts must start out with the presumption that the statute is constitutional and valid and that every intendment is in favor of the validity of the Statute; in addition to the conferred constitutional power to enact laws for the governance of the autonomous commissions named under the Constitution, the Legislature was given the additional power to create other agencies as may be necessary for the effective operation of Government.
At the time of establishing the three autonomous commissions in 1986, the framers of the Constitution did not and could not have thought of all the relevant autonomous commissions for the effective operation of Government so they empowered the Legislature to act when the need arises to create additional autonomous commissions.
She emphasized that over years as a need for establishing other appropriate commissions or agencies for the effective operation of Government became necessary, the Legislature consistent with the power granted it by Article 89 of the Constitution, established all of the agencies from which the petitioners were removed under the Executive Branch of Government and provided tenures for each of the said agencies.
“In doing so, the Legislature acted within the scope of its authority. That there is no showing that the Act passed by the Legislature providing tenure is in violation of the power granted the President of the Republic of Liberia under Article 56(a) of the Constitution to appoint and dismiss at his pleasure, officials of government appointed by him, Therefore, this Court sees no reason to declare the said act unconstitutional as the Minister of Justice has urged us to do.” She said.
In this case, although Article 89 of the constitution (1986) gives the legislature the authority to create autonomous agencies but it does not contravene Article 56 of the constitution. Chief Justice Youh said the act by President Boakai in nominating these persons while their tenure are still in force and expired is tantamount to their removal from office.
Meanwhile, the Supreme Court quashed the writ of prohibition prayed for by Prof. Wilson K. Tarpeh against the Government of Liberia and Dr. Emmanuel K. Urey Yarkpawolo of the Environmental Protection Agency or the EPA.
Prof. Tarpeh, in his petition before the high court, alleged that he was wrongfully removed by President Joseph Nyuma Boakai and replaced by Dr. Emmanuel Urey Yarkpawolo, something that led him to run to the Supreme Court.
He argued that he has a tenured position at the EPA and as such he should not be removed by the president until his tenure elapses.
But the Supreme Court’s opinion denied the writ of prohibition prayed for by Tarpeh on grounds that there are set of procedures that make one to become Executive Director of the EPA.
Section 16 of the Act that established the EPA noted that: “There shall be an Executive Director who is a person with wide environmental knowledge and recognized comment to sustainable management of the environment, appointed by the President from a list of three names recommended by the Council, except that the President may appoint an interim Executive Director pending the formation of the Council”.
The section further revealed that: “The Executive Director shall serve for a period of 7 years and shall be eligible for re-appointment, except that there shall be appointed an interim Executive Director. The Executive Director shall have security of tenure but shall cease to hold office if he/she Resigns; Is found guilty of gross misconduct on the advice of the Board and the approval of the Policy Council; is unable to discharge the functions of his office for health reasons”.
Dr. Emmanuel Urey Yarkpawolo in the wisdom of the Ccourt, was appointed as Interim Executive Director pending the formation of the Policy Council as provided for by the Act that established the EPA.
‘‘When this case was called for hearing, Counsellor Thompson Jargba appeared for the petitioner. Counselor Oswald Tweh, Minister of Justice and Attorney General of the Republic of Liberia, and Counsellor J. Aldophus Kamuah, II, Director of Civil Litigation, Ministry of Justice, appeared for the Executive Branch of Government. Counsellors Tiawan Saye Gongloe and Lamii Kpargoi, appeared for the co-respondent, Emmanuel K. Urey Yarkpawolo.’’
Having reviewed the records, heard the agreements and contentions advanced of the respective parties, and considered the facts and laws relied thereupon, it is hereby Adjudged:
That the EPA Act, Part III-Organization and Administration of the Agency, Section 16. 1 requires that the Executive Director of Environmental Protection Agency (EPA) be appointed by the president from a list of three names recommended by the council with a tenure of seven (7) years; and that the president may appoint an interim Executive Director pending the formation of the Council, the appointment of the petitioner by former President Weah was an interim appointment for which tenure is inapplicable;
That, also, the petitioner having failed to establish documentary proof that he was chosen from among a list of three (3) persons recommended by the Policy Council to the former president, and to make mention of his selection process in his petition regarding the existence of submission of said list to include his name, he is not entitled to tenure under the EPA Act;
That it is being established that the petitioner served in an Interim Executive Director capacity at the EPA, his removal was in consonance with the Executive Order 123, signed by former President George Manneh Weah, Sr., on November 22, 2023, in which he stated that all non-tenured presidential appointees shall be presumed to have resigned as of the date of the inauguration of the incoming President, Joseph Nyuma Boakai, Sr.; and
That a writ of prohibition will not be granted by the court where, as in the instant case, the respondent, the Executive Branch of Government, did not proceed wrongly by appointing Dr. Emmanuel K. Urey Yarkpawolo as Interim Executive Director of the EPA in the absence of the Policy Council.
Wherefore, and in view of the foregoing, the alternative writ of prohibition issued by the justice in Chambers is hereby quashed, and the peremptory writ prayed for denied.
The Clerk of this court is mandated to inform the parties accordingly.” the EPA’s Interim Executive Director, Dr. Emmanuel K. Urey Yarkpawolo, has resumed work at the Environmental Protection Agency where he was cheered by jubilant supporters of the agency as way of welcoming him back at the entity.’’
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