Weah’s late Supreme Court nomination and the legal conundrum

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With less than two weeks to handing over power as president of Liberia, President George Weah has nominated Justice Minister and Attorney General of Liberia, Counsellor Frank Musa Dean, to the Supreme Court bench of Liberia, a move that has sparked heated debate in the country.

On Oct. 14, 2023, the Liberian leader failed to get the people’s mandate to serve as their president for another six years, having already served one term as president of Liberia.

The former soccer icon was defeated by his main rival and standard bearer of the main opposition Unity Party (UP), 78-year-old Joseph Nyumah Boakai, by 50.89% to 49.11%.

The controversial nomination

On Dec. 27, 2023, a month after he was defeated in the election, President George Weah nominated Cllr. Frank Musa Dean as Associate Justice of the Supreme Court of Liberia following the receipt of a communication from ailing associate justice, Cllr. Joseph Nagbe. 

The ailing Justice was appointed in Aug. 2018 by President George Weah as a replacement for Cllr. Philip A. Z Banks on the Supreme Court bench of Liberia.

In less than five years, however, Cllr. Nagbe is seeking early retirement in 2023 due to poor health, a move that has drawn the attention of many legal practitioners in the country.

Many believe that Counselor Nagbe should not be seeking early retirement because, according to them, the counsellor has not met the requirement for retirement.  

The controversy deepened all the more after the appointment of Cllr. Dean to replace Cllr. Joseph Nagbe. There have been mixed reactions among Liberians over the legality of President Weah’s appointment, who will soon hand over power to President-elect Joseph Nyumah Boakai.

The appointment has since received massive media coverage, as seen here and here, and has become the centre of discussion at every street corner and intellectual centre across the country.

In a conversation with our researcher, Yousayneh Harris, a taxi driver, wondered why it had become urgent to appoint a new associate justice when President Weah was already leaving the presidency.

“Even though the constitution gives the president the authority to appoint at any time without a time limit, I think it is only wise and expedient enough that he allows the incoming president to do that appointment, except he has something to hide and wants protection at the level of the supreme court,” Harris said.

Boakai Jaleiba, in a Facebook post, argued that because the Liberian president issued a directive prohibiting any new employment within his government and preventing all service contracts, the president should not have made any further appointments in government. He believes that doing so contradicts the president’s directive.

“This speculation arises from the apparent contradiction in his actions. On December 18, 2023, President Weah issued a presidential directive, a firm stance suspending all service contracts and new employment across the government. Yet, just eight days later, on December 26, he submitted a communication to the Senate, urging consideration for the confirmation of his Justice Minister, Musa Dean, for a lifelong role. It leaves one to ponder whether the President may not be fully aware of the content of his directives or if, perhaps, they are not being given the meticulous attention they deserve,” Jaleiba noted 

Jaleiba further argued, “What adds a layer of complexity to this situation is the timing of Minister Musa Dean’s appointment, occurring after the President’s loss in the mandate to govern. This temporal alignment raises eyebrows and prompts speculation about the underlying intentions behind the decision. It suggests more than a mere oversight; it implies a deliberate move that demands closer scrutiny to discern potential motives that might not align with the public interest or the principles outlined in the earlier directive.”

On the other hand, Julius Kullie Kanubah, a Liberian journalist, disagrees with Jaleiba’s argument that President Weah does not have the authority to nominate a new associate judge in the wake of a vacancy because, according to Jaleiba, the president has lost the mandate to govern.

Kanubah asserted that it is wrong for anyone to think President Weah has no authority. Thus, Executive Powers remain vested in President Weah, adding that the President is President until he formally turns over Executive Powers to the incoming President at noon on the third working Monday, January 2024.

What do the laws say on early retirement and new appointments?

According to article 54 ( C ) of the constitution of Liberia, without any time limits, the president has exclusive authority to nominate the chief justice and all other associate justices of the supreme court and send the same to the Liberian Senate for confirmation.

The Liberian constitution, article 71 states, “The Chief Justice and Associates Justices of the Supreme Court and the judges of subordinate courts of record shall hold office during good behaviour. They may be removed upon impeachment and conviction by the Legislature based on proved misconduct, gross breach of duty, inability to perform the functions of their office, or conviction in a court of law for treason, bribery, or other infamous crimes.”

At the same time, under the new judiciary law of Liberia, chapter 13.4 (3) under the title: Compensation of Judiciary; retirement pensions and death benefits states, among other things, that “Any judge or stipendiary magistrate who has served continuously for fifteen years or more in any such judicial capacity and who has attained the age of 60 years, or who has served continuously for ten years or more in any such capacity and has been certified, after appropriate physical or mental examination by competent medical authorities, that he has become permanently disabled from performing his duties, or who has completed at least 25 years of continuous judicial service or at least 30 years of cumulative judicial service, may retire from regular active service with a right to receive a retirement pension as outlined in this section.”

What are lawyers saying?

Counselor Bornor M. Varmah, secretary general of the Liberian National Bar Association (LNB), stated that the communication coming from ailing association Justice Joseph Nagbeh and the president appointing a new associate justice is out of order. 

Speaking on Okay 99.5FM, when he phoned in on the Okay Morning Rush, Cllr. Varmah stated, “From my research that I have done, the letter that was written to the chief justice and same was shared with the president, I think that letter is completely out of order because he is requesting early retirement when he does not meet the criteria for early retirement under the law.  

Cllr. Varmah indicated that the action of the ailing associate justice to seek early retirement is completely out of order because, according to him, any law does not back it, and the action by the president to appoint a new associate justice is also out of order citing the new judiciary law of Liberia as his reliance.

Cllr. Varmah made his intervention from 1:06:35 to 1:10:40 of the over two-hour show, which was carried live on the station’s official Facebook page.

For his part, Cllr. Augustine S. Chea, a member of the Liberian Senate, disagrees with Cllr in a Facebook post. Varmah argued that the constitution gives the president enormous powers, called the enumerated powers of the president, and some of such powers are found in Article 59 of the constitution.

According to Cllr. Chea, there is no constitutional prohibition or limitation on the powers and authority of the President while he is in office. 

Cllr. Chea believed that the President’s action by nominating Cllr. Dean to the Supreme Court Bench is constitutional. However, Cllr. Chea clarifies that the only problem with the nomination is that the Senate may not have sufficient time to vet the nominee for this high-profile position diligently.    

What has the Supreme Court said?

However, the Chief Justice of the Supreme Court of Liberia, counsellor Sie-A-Nyene Youh, has termed Cllr’s nomination. Muas Dean to the Supreme Court bench as lawful.

According to a story published by the Independent Probe Newspaper and GNN-Liberia, Chief Justice Youh’s disclosure was contained in a response to President Weah asking the Supreme Court for clarity. 

Chief Justice Youh indicated that former Justice Nagbe’s request for retirement for reasons of poor health is within the confines of the law,  referencing the case of the Late Chief Justice, Johnnie N. Lewis, who, for reasons of poor health, retired before the age of seventy (70).

However, the Unity Party (UP), the incoming ruling government, has since prayed to the Supreme Court for a prohibition on the confirmation of Cllr Muas Dean and justice in Chamber, counsellor Jamesetta Wolokollie, who has since granted their request.

Despite the stay order issued by the Supreme Court, the Liberian Senate still attempted to conduct the confirmation of Cllr. Dean but Some Liberian Senate employees protested because they had not received their benefits for extra sitting called for by President Weah.     

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