A Rejoinder To Kanio Gbai Gbala’s Nepotism Or Legality
PHOTO: The Author
By Alfred H. W. Brownell, a Law Graduate, Legal Researcher, Writer, Environmentalist and a Concern Citizen
Studies have shown judges and academics have tried to grapple with non-delegable duties but have ostensibly given up when faced with the task of trying to hypothesise them. There’s a common saying among legal scholars, Perception is reality.
This is often said, but rarely understood, and for legal practitioners and would be lawyers, it is what they face every day when they see their clients. The judiciary is the custodian of the rights of citizens and citizens are the primary clients and their perception of the judiciary, and of the legal system, judges, magistrates and associate magistrates who interprets the law is their reality. Their perception is built on a multitude of factors, including their own experiences and those of their family and friends with the legal system. For some, this perception is also shaped by other things, and all of this often sits silently with the judiciary as it provides legal services for citizens and how they interact with the judiciary.
Lord Chief Justice Hewart a century ago stated, ‘Justice should not only be done but should manifestly and undoubtedly be seen to be done.’ This statement is heard throughout the common law countries, Liberia included because they sustain an ethical requirement that judges, and decision-makers must be seen to be impartial. It highlights the importance of both actual and perceived impartiality in the justice system.
That is why the controversy over the appointment of Associate Magistrates including the Chief Justice’s own son isn’t an inconsequential matter of legality. It is about whether the judiciary represents the principles that justice must not only be done but must be seen to be done, and that the public confidence in the judiciary and public institutions is an important hallmark of effective democratic governance. At a gathering of lawyers and judges in Lofa county, the Chief Justice defended the recent appointment of magistrates and associate magistrates by the president arguing “there’s nothing in the Judiciary Act (Title 17) that says the president cannot appoint one…. My son is of age; he is in law school. I recommended him to the President and if the President saw it fit to nominate him, I see nothing wrong with that”.
Cllr. Kanio Bai Gbala, an Assistant Professor of Law at the Louis Arthur Grimes School of Law reinforced this argument in his article Nepotism or Legality echoing that precedent exits for law students to serve as magistrates, and that no law explicitly prohibits such appointments.
Russell Ackoff dealing with one of the most compelling metaphors for complex problems described them “messes”. He went on to say before we can solve a problem, we need to know exactly what the problem is, and we should put a good amount of thinking and resources into understanding it. And Kanio’s article Nepotism or Legality though in one lens is seen as a defence, is a deep acknowledgement of the struggle that millions in our country are facing at the moment, it is that mess described by Ackoff emerges when legality has been mistaken for legitimacy. Legality can only create legitimacy to the extent to which the legal system reflexively responds to the justification requirements created by the positive development of law, specifically in a way that institutionalizes legal decision-making procedures which are permeable to moral discourse. As much is it is the prerogative of the president to appoint as guarantee by the constitution, it doesn’t me all appointment preserves public trust. In a constitutional democracy such as ours, it is important to remember ethics laws only constitute minimum standards for officials’ conduct. The law is a floor for public official conduct, not a ceiling: just because a particular course of action is legal does not mean it is ethical.
Non -Delegable Duty of Care
Accordingly, the magistrates and associate magistrates owe an overriding duty to the court which prevails over all other duties, including the duty to the person who appointed them. The fundamental duty of the judiciary is to uphold the constitutional principle of the rule of law and safeguard the Constitution. While I concede there is no simple priori legal answer to what constitutes the rule of law, the head of the judiciary cannot at a public forum be heard saying ‘the president acted within the law’. It is the responsibility of the Chief Justice and all officers of the court to protect it from public disrepute; whether technically legal that generates a reasonable apprehension of bias and nepotism.
The failure of this duty is a breach especially when magistrates and associate magistrates are appointed without valid law qualifications or recommendations. In this case, a non-lawyer such as law students don’t owe non-delegable duties. Law students are learners and not the primary responsible parties, do not have the authority or responsibility to owe such a duty. By the appointment of an associate magistrate without a law qualification on the recommendation of the Chief Justice, the judiciary has neglected its non-delegable duties.
The Trial Judges’ Caution
The President of the Trial Judges Judge Nancy Sammy tried to raise exactly this concern. She wrote to the Chief Justice after complaints from Associate Magistrates that several appointees lacked law school qualifications. Her request was simple: protect the credibility of the judiciary.
Her letter was respectful, but it was met with accusations of hypocrisy. She was told to “come with clean hands” by the Chief Justice because her husband serves as an Assistant Minister a position he has held long before she became a judge. This was not a legal rebuttal; it was an attempt to silence a woman, challenges that women still face when looking to advance their legal careers.
What this reveals is a judiciary at risk of being cowed into submission. Instead of grappling with the substance of the complaint and the appearance of nepotism, the debate has been turned personal and political.
How Does The Chief Justice Role Change What Is Morally Permissible Or Obligatory?
I’ve read the Constitution gives the president authority to appoint as such the Chief Justice actions are therefore personal play no role in the appointments when in fact it was the chief justice who by his declaration noted he recommended the names.
Professor Cora Hoexter and Professor Geoffrey Feltoe in their seminal texts on Administrative Law go to great lengths in explaining the legal problems that arise where an administrative authority has a personal interest or bias in a matter. Nepotism is wrong. I personally believe one should not disenfranchise a deserving candidate just because they happen to be related to a Government Minister or the Chief Justice. I think the Chief Justice son by virtue of his second year in law school has some merit but there’s a very thin line between making recommendations for appointments and being appointed. A recommendation for appointment isn’t just a lead; it’s a vote of confidence and it should be treated as such in the context of the law. Moreso, as someone who studied constitutional law, I learned about the interplay and alignment of power and influence. In this context, the Chief Justice recommends, authorizes and influences who gets appointed prior to the president nomination of the candidates to the senate for confirmation where applicable. In short, this argument is a false shield.
Comparative jurisprudence underpins this. Under the leadership of the Honourable Former Chief Justice of Nigeria, Idris Legbo Kutigi, the Supreme Court and other subordinate Courts held the appearance of bias disqualifies a candidate from being a judge or magistrate. In Ghana, a Justice of the High Court described it as so vile and disparaging, and this same issue has windswept trust in the judiciary in Sierra Leone. The Kenyan High court has taken the matter to another level, ruling against any appointment considered as nepotistic. The decision by our regional neighbours are clear, when delegated authority is used as a cleaning agent for nepotism, interpretation of the law must go beyond what the law permits, it must sustain constitutional trust.
Where Legality Does Not Meet Legitimacy
The Chief Justice’s defence boils down to this: if there is no law forbidding it, then it must be acceptable. But the Constitution is not a loophole-hunting exercise. The Constitution envisions a judiciary that inspires confidence, one that rises above suspicion.
This is where the doctrine of reasonable apprehension of nepotism matters. Even if an appointment is technically legal, the perception that a judge’s son has been elevated two months after a unanimous confirmation, a month after CSA was ordered to conduct credential audit of judges, magistrates and judiciary staff with preliminary report showing 37% of auditees have fake credentials only to recommend magistrates who have not completed law school and got no legal experience is scarring. This action undermined the public confidence in the judiciary and weakens the rule of law.
An important component to being a magistrate or associate magistrate is not only about qualifications, but also about having the ability and space to be truly independent of the party who gave the job.
As I read it, the point of the trial judges concerns are not about the prerogative of the appointments, the issue is not so much about “qualification” it is about political favouritism and nepotism.
For our democracy to operate with necessary checks and balances to power, it is important that judges and magistrates have judicial independence. That is why, under the Constitution, the judiciary is separate from and independent of the other two branches of government, the executive and legislature. Judicial independence guarantees that judges, magistrates and associate magistrates alike will be able to make decisions free of influence and based solely on facts and the law.
Simply put, if the composition of the court aligns with the government, then there is a greater likelihood that the Court will uphold the government’s policy, no matter how problematic or unconstitutional it is and for a fragile democracy such as ours, this is a dangerous soundbite.
To be fair, the issue isn’t about merit or not. The real issue is the appointment process itself. If the president appointment will allow obvious nepotism or an apprehension of nepotism, then the process lacks due diligence and credibility.
The Way Forward
As a way forward, the judiciary the issues raised by the trial judges should not be dismiss as lacking foundation in law. The Chief Justice must bear in mind that his prima facie responsibility and duty is to protect the interests and integrity of the judiciary. Where such duty has been breached, the effect in not insignificant, it affects the judiciary in its entirety. Therefore, to protect the integrity of and independence of the judiciary, the no role argument masquerading as law must be rejected. Because when justice wears the robes of nepotism, public confidence in the justice system erodes and words of John Locke in section 202 of Chap. XVIII “Of Tyranny” in Book II of the Two Treatises of Government that even magistrates must abide by the law “wherever law ends, tyranny begins” becomes more for us than just a sound. It is a reminder that the fall of a dry leaf is a warning to the green ones.
About the Author
Alfred H. W. Brownell is a Law Graduate, Legal Researcher, Writer, Environmentalist and a Concern Citizen.
Disclaimer: This article is a commentary, intended for general educational purposes only. The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of any institution or political party, nor the official position of any research institutions in which he is affiliated.