LIBERIA: Why Several are stripped of Tenured Positions ….President’s Legal Advisor provides More Details, Says Some Will Not Be compensated

As the debate surrounding President Joseph Nyuma Boakai’s recent action to remove several persons occupying tenured positions heightens within the public sphere and among legal experts, the Presidential Legal Advisor has provided supportive arguments to the President’s decision.

Speaking at the recently held first cabinet retreat of the Boakai’s administration, Cllr. Bushuben Keita stated that those positions that are established by statutes as tenured positions in government’s agencies, commission and specialized organizations are in violation of Article 56(a) of the Liberian Constitution.

Article 56(a) of the Liberian Constitution states that: “All cabinet ministers, deputy and assistant cabinet ministers, ambassadors, ministers and consuls, superintendents of counties and other government officials, both military and civilian, appointed by the President pursuant to this Constitution shall hold their offices at the pleasure of the President.”

Based on the constitutional provision, the President’s Legal Advisor announced that the cabinet has arrived at a decision that authorizes the President to exercise his authority to appoint any position within the executive branch of government whether the person has a tenure or not except for those positions that are protected by the Constitution of Liberia.

“I have come to brief you on the decision reached by the cabinet at the first cabinet meeting of the new government, which is ongoing. The decision is this: with regards to those positions that are established by statutes as tenured positions in government’s agencies, commissions and specialized organizations, the cabinet has decided that those tenured positions violate Article 56(a) of the Liberia Constitution, which states that everybody who works in the executive branch of government serves at the pleasure of the President,” stated Cllr. Keita.

“Therefore, the cabinet has authorized the president and it has been concluded as a government policy that all of those tenured positions that are created by statutes, that the president will exercise his authority to appoint any position within the executive branch of government whether the person has a tenure or not except for those positions that are protected by the Constitution of Liberia.”

In his presentation, Cllr. Keita cited two landmark cases: Martin Kollie vs Executive Branch and the LACC case, wherein the Supreme Court of Liberia held that those tenures are contracts and those contracts must be respected in keeping with Article 25 of the Liberian constitution.

In the LACC case, the Supreme Court opinion read: “That no public official has vested right to a public office except for those officers or offices that are clearly and expressly protected by the Constitution, which is not the case in the present petition.”

“WHEREFORE AND IN VIEW OF THE FOREGOING, the petitioner’s petition is denied. The Clerk of this Court is ordered to inform the parties in these proceedings of the decision of this Court. Costs are disallowed. AND IT IS HEREBY SO ORDERED.”

Taking clue from this opinion and the Constitution, Cllr. Keita maintained that those tenured positions are considered contract and as such, those who are removed should be compensated for their unexpired contracts/tenure.

“Therefore, all of those tenured positions are considered contracts for a definite/fixed period. And therefore, we have resolved that those who are removed should be compensated for their unexpired contracts/tenure. For instance, if you had a four-year contract and served for only two years, government still owes you balance two years pay, but you cannot compel the President to keep you in these positions if you are not serving at the pleasure of the President because that will be a violation of article 56 (a).”

Accordingly, he said there are also laid down conditions for which one serving these positions would be compensated or not, thus citing Article 5.1 (Code of Conduct) as a caveat to that.

“Therefore, we announce that for those individuals, who have tenure today, who we have evidence violated the code of conduct, you will be replaced and we will not compensate you. The laws are there. If you believe that you did not violate the Conduct of Conduct and need to be compensated, you can take advantage of the law. But if we say you violated the COC, trust us we have evidence video graphic ad photographic that you did participate in political processes, and wore campaign paraphernalia etc.”

In support to this argument, Cllr. Lafayette B. Gould, Sr. also provided explanation on establishments of some key autonomous public commissions as enshrined in Article 89 of the Liberian Constitution including the Civil Service Commission; Elections Commission; and the 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, their being established by the Constitution does not mean they have tenures. Their tenures are/were established by the legislature which has the power to take away said tenures. 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 and Town Chief (Article 56b). These are the only positions that do not fall under the pleasure power of the President.”

He added: “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.”