Human Rights Liberia: March 2007

Friday, March 30, 2007

HRPF Letter sent to the President regarding delay in the INCHR appointment process March 19, 2007

[Find hereunder the letter sent by Human Rights and Protection Forum (HRPF) 45 Carey Street Garnett Building, Monrovia, Liberia, to the President of Liberia and circulated among civil society groups]
***************************************

Her Excellency Madam Ellen Johnson Sirleaf
President of the Republic Of Liberia

March 19, 2007

Dear Madam President,

We are concerned over the delay in reconstituting the Independent National Commission on Human Rights according to Article IX of the INCHR Act 2005.

As Your Excellency is aware, it is already about two months that the Independent Committee of Experts (ICE), the civil society group convened by the Chief Justice of Liberia in December 2005, recommended to you the list of 11 persons to be considered for the appointment of seven-member team of Chief Commissioner and Commissioners of the Commission as envisaged by the law.

As you are aware, according to the INCHR Act the President is to consider only such persons for the purpose of appointment for the position of Chairperson or Commissioners who are on the list of persons recommended by an independent committee of experts formed by the Chief Justice in consultation with the civil society organizations. The approval of the Senate is also part of the appointment process.

Meanwhile, I also take this opportunity to emphasize that in order to have functional independent national institution of human rights the persons recommended for review and consideration should not be politically controversial and reflect, to the extent possible, the pluralist nature of Liberian society in terms of sex, ethnicity, language and religion as well as have the representation of nongovernmental organizations or professional associations involved in the protection and promotion of human rights.

In this context, I would like to draw your attention to the current list which is consists of politically controversial names, needs to be avoided in order to make sure that the Commissioners appointed by you are able to maintain their professional independence and impartiality.

The list is also gender blind in its composition. There is only one woman in the list of 11 persons, which gives no choice to the President to create a more gender-balanced institution.

In view of these comments, may I take this opportunity to request you to kindly ask the Independent Committee of Experts to send Your Excellency the list of all women candidates who applied for these positions, or were recommended to the Committee by public in large, on their merit basis, so that Your Excellency can have enough space for making appropriate choices, and creating a credible national institution.

Finally, Your Excellency, the urgency of constituting the Commission as soon as possible cannot be overemphasized. The human rights organizations in the non-governmental sector emphasize once again that the INCHR is their organization and they have full commitment to work with the government in institutionalizing the Independent National Commission on Human Rights as a credible national institution of Liberia.

Please accept Your Excellency the assurances of my highest consideration

Sincerely Yours,

Mr. Matthew B. White
Acting Chairman
Human Rights Protection Forum (HRPF)

Cc: UNDP, UNMIL, and Human Rights Organizations

Transitional Commissioners of INCHR (Jan 2004-December 2005)

Independent National Commission on Human Rights

1) Atty. Dempster Brown, Chairperson
2) Rev. Robert K. Nyeswah, Member
3) Atty. Esther Seton-Cee, Member
4) J. Michael Kunmeh, Member
5) Zeor Daylue, Member
6) Katurah Cooper, Member
7) Rev. Ellen Fartu Varfley, Member

Comments on draft INCHR Act

29 September 2004

Mr. Bipin Adhikari
HRO (National Institution)
Human Rights Protection Section
UN Mission in Liberia (UNMIL)

Dear Mr. Adhikari,

As requested please find attached my preliminary comments concerning the draft legislation which you forwarded for my comments regarding a National Human Rights Institution for the Republic of Liberia. It is my understanding that this advice is being sought in consultation with the Government of Liberia. Therefore please feel free to share these comments with the relevant Government partners as required.

My comments are based on that provided with me making additional suggestions for those sections where there is no actual text and concerning those areas which I believe should be included.

Generally the drafting of such legislation is part of a consultative process with civil society, Government and other actors to educate the public about an institution which should be seen as its own; ensure that the legislation meets the needs of that public; and ensure that the legislation is in conformity with the United Nations Principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles) approved unanimously by the UN General Assembly in 1993 (annexed to Resolution 48/134 of 20 December 1993).

Our Office consistently encourages the preparation or amendment of relevant legislation in consultation with NGOs, academics, the legal profession, church leaders, parliamentary opposition leaders, or other community representatives and members of the international community as part of broad based civil society consultations. These consultations often involve several public workshops and seminars, well publicised in advance, and conducted over a sufficient period to permit genuine consultations. I understand that some consultations have been held; I would encourage that these be as exhaustive as possible.

We have found that where such consultations do not occur that institutions which are established do not have the same public legitimacy or credibility as those which have gone through an open process of discussion and debate.

In summary the six key criteria in the Paris Principles are:

 independence guaranteed by statute or constitution
 autonomy from government
 pluralism, including in membership
 a broad mandate based on universal human rights standards
 adequate powers of investigation
 adequate resources

This advice assumes that the Government of Liberia wishes to ensure that the Commission is established as an institution that conforms to the Paris Principles. The advice is based on the requirements of the Paris Principles and on the following lessons learned:

 The need for a sound constitutional and legislative foundation,
 The need for clarity of mandate,
 The need for strategic prioritisation of work,
 The need for a basis in, and strong reference to, international human rights law,
 The need for adequate resources,
 The need for demonstrated independence,
 The need for the power to act on its own initiative,
 The need to appoint high quality (expertise, integrity, independence) commissioners and staff,
 The need for effective privileges and immunities,
 The need to ensure representation of all sectors of society,
 The need to ensure physical, social, cultural and linguistic accessibility,
 The need for powers to gather evidence and call witnesses,
 The need for the power to ensure non-judicial remedies,
 The need to manage complaints efficiently,
 The need to monitor follow-up,
 The need to chart and respond to trends,
 The need to establish effective linkages with NGOs and government offices, and
 The need for transparency, consultation and participation.

It is therefore our Office’s view based on practice that it be important the institution is included in the future Constitution of the country. It is commendable that a general provision was provided in whereby "The parties agree on the need for the establishment of an Independent National Commission on Human Rights (INCHR)" pursuant to Article XII of the Comprehensive Peace Agreement signed in Accra on the 18th August 2003. A constitutional provision is critical to ensure the necessary independence of the institution and provide the general parameters concerning its establishment. It may be brief and concise as the powers and functions of the institution itself will be incorporated in the enabling legislation to be adopted. Enabling legislation, which is in effect the draft which I have been asked to comment on, contributes the remainder of the framework for the jurisdiction, functions and powers, procedures for appointment and dismissal and operational and administrative matters. Hence if there is a new constitution to be drafted in Liberia this will provide an excellent opportunity to ensure that the national institution is entrenched in it for its sustainability and guarantee of independence.

Article I

I have no comment under Article 1.

Article II(2)

It is not clear why there is a need to determine whether the Commission can, with reference to branch offices, “close or terminate any of them, and thereafter reopen and reactivate them according to its requirement….” as the article notes that it may establish and maintain them as necessary. Hence I would strike that section.

Article III

Subsections 1 and 2 are appropriate with an appropriate human rights definition.

Gender neutral language should be utilised throughout the legislation (his/her).

Subsection 4

It is not clear what this subsection refers to. The ability of an individual to submit a complaint to the Commission should be regulated by the institution’s enabling legislation.

Subsection III, 4 (c)

The numbering seems to have gone awry – while it is of course desirable to seek amicable settlements through conciliation this is unfortunately not something which can be imposed.

Subsection III, 4(e)

Concerning the rights to conduct on site-inspections and investigations to places of detention these should be free and unfettered. Such inspections are often only credible if they be undertaken without prior consent of the authorities.

Subsection III, 4(g)

My comments for the following subsection relate. The provision of legal services is generally one which can be costly to a national institution. Some do so (I attach a comparative table of some examples of legal aid etc) but a number have shied away for economic reasons. Also as an institution, which as mentioned earlier, should strive to find amicable solutions it may place the institution in an awkward position of choosing sides. This is not inappropriate provided all the facts may be ascertained. If this power is provided it will need to be used with great discretion with the institution able to make a determination in which instances such assistance might be provided. Any criteria will need to be clearly defined and properly enunciated.

Subsection III, 4(h)

The whole issue of quasi-judicial powers is an interesting one and tackled further in the legislation (Article IV). I would soften this language so that the institution may act as an amicus curae in proceedings before the court but not have the power of direct intervention in the actual proceedings of the court. Generally national institutions do not intervene in matters before the court unless to add further information to a process which the court may not be aware of. The service is one provided to the court. More forceful intervention could prejudice the independence of the judiciary. This of course excludes the ability – some institutions have this – of actually being a party before a case in the court on behalf of a complainant. This has been provided for in subsection III, 4(i).

Article IV

This article provides for broad powers of promotion and protection of human rights. This is appropriate and to be commended. I have some small comments on the subsections.

Subsection 2

The receipt of complaints by parties other than the individual directly the subject of an alleged violation is appropriate. However certain safeguards, such as signed affidavits or being a direct relative (where an affidavit is not possible – ie in relation to person’s in detention) may need to be considered. It is important that this article continue to permit the submission of credible complaints and that their submission be possible expeditiously so that violations are dealt with as soon as possible.

Regarding communications between the national institution and a person in custody, they must be confidential. Correspondence should be passed on without delay and delivered unopened. The legislation should stipulate that the information transmitted shall be done immediately in a sealed envelope, unopened and unaltered. There should be penalties for breaches of these requirements.

It should be prohibited to undertake any action to punish, harass, intimidate or otherwise disadvantage a person who has lodged a complaint or who is involved in a complaint, for example, as a witness. There should be penalties for breaches of this prohibition.

There should be no fee for lodging a complaint – this helps ensure accessibility to the institution which is another key principle for independent national human rights institutions.

Subsection 4

Rather than refer to fundamental principals of human rights it would be clearer if reference was made to international human rights standards or instruments.

Subsection 9

It is important that the language be reformulated to read “to contribute to the preparation of reports” so as to ensure that the report is still a State party report and that the actual preparation is undertaken by the State party. The national institution can provide input into the report but not be seen as a party to it permitting it to react to any omissions, errors or other in the report.

Subsection 15

A national institution is not a court nor should it attempt to become one or interfere with the independence of the judiciary. Therefore in this reference it should be clear that it is not the role of national institution to criticise a judicial decision but to rather use such a decision in the promotion and protection of human rights.

Subsection 17

The independence of a national institution is guaranteed through a number of mechanisms including through ensuring that the institution reports to the Parliament. It is commendable that reference is made concerning the submission of annual reports. However the article is not clear how such reports will be submitted. Generally they are submitted to Parliament with copies to the other parties. It is critical that these reports not be amended whatsoever once submitted. In this regard their early publication is critical with as wide a distribution as possible. Hence, in order for the reports to be publicly available it is appropriate that they form part of the official Parliamentary record (i.e. Official Gazette), be published and publicly available with the widest possible circulation. The law may therefore stipulate that the Annual Report should be made public upon submission, possibly through a Parliamentary Gazette. No obligation on the media to publish it should be imposed to ensure that freedom of the press is assured.

That to be included in the report should be at the discretion of the Commission but the legislation could stipulate that it provide for an overview of the human rights situation in the country and the recommendations made by the Commission. It is preferable to note that the investigations undertaken by the Commission may be published, rather than shall. It is important for the Commission to have discretion in this area depending on the sensitivity of the cases while maintaining the important principle of transparency of its operations.

Subsection 18

Such an open-ended clause is not recommended. The national institution must be able to plan and budget according to its mandate. It must also determine as an independent institution its own priorities. It is not a state agency and therefore must not be obligated to undertake responsibilities not legislatively provided for. I would recommend that this clause be removed.

Article V

Subsection 1(c)

There is no issue with this subsection though it is critical that it be understood that there be no imposition on the mass media for the publication of reports or pronouncements of the institution. While creating a culture of respect for human rights, non-discrimination and tolerance for individual differences depends on appropriate support from the media, its independence must not be compromised. Any positions or pronouncements of the institution can either be published at the will of the media, respecting freedom of the press, or as a paid supplement.

Subsection 2

This subsection is commendable and such broad inclusion of civil society in the work of a national institution is increasingly seen as relevant to the very work, functions and indeed nature of the institution (ref. my introductory comments concerning the consultative process leading to the establishment of a national institution).

Article VI

This is a very important article which leads to the extension of national institutions powers and functions to the quasi-judicial sphere. It is important as stressed in such matters to ensure full respect for the judiciary and independent judicial processes. I attach an analysis of some subpoena powers of other institutions to demonstrate that this is an important power for many.

As a general note there is often in similar legislation the importance of access to the head of state, government and ministers concerning alleged violations of human rights. When the life of an individual is at state it is important that critical action be undertaken without delay. Given the seniority of office, however, generally a period of 48 hours is appropriate unless emergencies of state are in cause.

Subsection 8

Concerning the information it is important to specify a particular time frame – for example one week – whereby information not received is deemed unacceptable permitting action by the national institution as noted in this subsection.This should not be arbitrary.

Subsection 9

I read this subsection as respecting the authority of the judiciary to determine acceptability of particular requests. This is appropriate in respecting the judiciary.

Subsection 9(d) and (e) is in full compliance with the principal of natural justice and is therefore appropriate.

Article VII

It is not clear to me the rationale behind this article. Some of the language in it can be seen as subjective (who will determine whether a junior officer was coerced or is hiding behind senior authority?; who is to determine whether an individual is a main or complicit actor in a violation and therefore should not face possible prosecution?). Again this leads into the less than clear area of the relationship of a national institution with that of the judiciary. Unless there is clear justification for this article it does not seem necessary.

Concerning immunities however, there is a need to clarify those of the Commissioner and staff. It is important the Commissioners not be threatened by civil or criminal legal proceedings arising from his or her conduct as a Commissioner of the institution provided that he or she acts in good faith in accordance with the law. While the Chair and Commissioners should be liable for criminal prosecution or civil action in relation to his or her personal affairs, as Chair/Commissioners he or she should be able to act lawfully and in good faith without fear of prosecution. The Chair/Commissioner’s decisions may still be subject to proper judicial review and the Commission should remain accountable to the Parliament. However the Office should enjoy immunity from suit for lawful, good faith actions taken pursuant to the law and in the course of official duties. Any statement relating to immunity should be provided in the legislative text establishing the Commission, and not in its rules of procedure, and should clearly stipulate that the benefit of immunity relates to that undertaken in the course of official duties.

Article VIII

The payment of reparations is a power few institutions have. It is not because it may not be commendable but rather a practical issue relating to resources. Many institutions will recommend the payment of reparations by state violators rather than pay such reparations themselves. Another option is that the violator is required to pay reparation (though this can also be subject to a judicial process). Again, this is rarely in the form of an order but rather a recommendation which is taken seriously due to the moral authority of the institution and the ability of the institution to report on any potential or lack of follow up through annual and other reports.

Article IX

Even with the best legislation possible the appointment of credible, able individuals to lead a national human rights institution is of the utmost importance. The size proposed concerning the Commission is appropriate and my comments in this section are few.

Two main observations concerning this article include: There should be no age requirement for appointment as this would be discriminatory and in itself a violation of human rights (hence subsection 6(b) is inappropriate). Rather the importance is to look at the skills, competencies and integrity of applicants. I note the recommendation that the head of the institution be a lawyer. Our experience has proven that while it is important for the institution to have legal competence within its staff that the leaders of the institution need not necessarily be lawyers to be effective.

In general concerning appointment I would like to make the following observation. An essential element in ensuring the independence of an institution is through the mode of appointment of the Chairperson and Commissioners of an institution. The Paris Principles provide that “appointment shall be effected by an official act which shall establish the specific duration of the mandate”. They do not prescribe any particular mode of appointment. The appointment process, however, can be critical to the national institution’s independence. It can also be critical to the autonomy of the institution if the person appointed is closely aligned with the Government and prepared to do the Government’s will. The Paris Principles require independence and “autonomy from government” for human rights institutions. The Chairperson and Commissioners, therefore, must be truly independent of government if he or she is to be effective in the task assigned by legislation. The appointment process must be open and transparent if the appointment is to have credibility. The legislation should provide quite specific criteria that an appointee must meet. Nominations should be sought publicly and screened by an independent committee of experts before a short list is presented to the key decision maker (the present legislation provides for candidates to be selected from amongst NGO nominees). The exact process needs to be clarified to ensure that those from civil society are representative of the whole.

Concerning the quorum it is unclear as to the number of votes by the Legislature (subsection IX, 2) required to recommend the Chairperson and Commissioners. A simple majority is used by some institutions though we encourage a 2/3 majority of the Legislature. There is, however, a risk in that if there are strong political divisions and favouritism then the selection process may be bogged down with a 2/3 majority. Whatever open and transparent process is selected the procedure should not be so complicated, or potentially controversial, as to delay appointments for a considerable period. Undue delay in the appointment of Chairperson and Commissioners will erode the credibility of the institution. Consultative processes, as that envisaged, to seek the views of civil society in the work of the national institution are commendable though as noted greater clarity needs to be made.

Article X

I have few comments save to note that the legislation is silent on whether the Commissioners are full or part-time. It is appropriate to clarify this though the text seems to suggest that they are full time.

Article XI

Subsections 7 and 8

I assume that reference to no or any person refers to Commissioners and/or staff?

Article XII

The term of appointment of the Executive Director should be specified. This is a key post and it should not be up to the Chairperson to determine the term. A clear term also helps protect the integrity and independence of the institution. Appropriate dismissal procedures can follow the practice of the public service or be regulated by the Commission (they must not be arbitrary and subject to political manipulation or subjective interpretation).

Article XIII

The structure appears appropriate and practicable.

Article XIV

Concerning dismissal this is a very serious action and can potentially undermine the independence of the institution. It should be available only in the most serious circumstances. Generally dismissal is agreed to with the consent of 2/3s of the Legislature. The independence of the institution would be severely compromised if the Commissioners were easily dismissible. There may be the need to provide for temporary suspension, rather than dismissal, in the case of temporary inability to perform the statutory functions. This process should be clear in the law.

The dismissal procedure, like the appointment procedure, should be open and transparent. It should be initiated in the same way as an appointment is initiated, not through the political path of President or Parliament but through inquiry and recommendation by an independent committee.

Article XV

The proposed term of five years for the Commissioners is reasonable. It would not be inappropriate if these terms were renewable for one further term. We have, however, found that it is not ideal when the term of the Chairperson is coterminous with that of the Members. Such an approach can result in the loss of institutional memory of the entire institution. One way of avoiding this is for the Chairperson to be appointed for a longer term – for example six years.

Article XVI

Subsections 3 and 4 are somewhat unclear to me. Whilst it is important for the Commission to be able to access other resources an obligation for Governmental bodies to agree to requests from an independent institution strikes an odd chord. I do not appreciate the need for these subsections.

Article VIII

The numeration is inconsistent.

Article XIX

Any institution which is beholden to the public, transparent and accountable must justify its budget. It is therefore not appropriate to oblige a state to accept a budget from an independent institution without discussion and scrutiny. What is important is that provision be made for the state to ensure that adequate resources be provided by the state for the effective functioning of the national institution. Generally a budget is proposed by the national institution to the legislature for discussion whereupon an allocation is made. This is critical to public ownership and to ensure transparency in the institution’s operations. Therefore I would argue that the phrase “In order to enhance the operational efficiency of the Commission, the Commission shall have continual funding on an annual basis from the revenue of the Government of Liberia as determined by the Commissioners and Director General of the Budget” could be replaced by “In order to ensure the operational efficiency and independence of the Commission, the Government of Liberia shall ensure its adequate resourcing following consultations with the Legislature, Director General of the Budget and Commission.”

Subsection 8

This section is well drafted and is appropriate for the empowerment of the Executive Director.

Subsection 9

The issue as mentioned previously is the manner in which the report is presented, to whom and when. Critical is also that the report be published without amendment.

Article XX

Subsection 3

It is not clear to me why this is included in this legislation. Whether the state constitutes state entities or not for specific courses of action is for the state to determine. In my opinion it has no place in legislation concerning independent national human rights institutions.

Subsection 4

It is commendable that the Chairperson delegates powers and there is recognition of this. However, it is not appropriate that delegation be done for persons outside of the structure of the Commission. Delegation to other Commissioners is appropriate. To delegate to “any other person” does not assure any accountability.

Subsection 6

It is not clear why an independent national human rights institution would need to communicate on issues via the office the President. Such an approach could be misconstrued as interference in the independence of the national institution.

Subsection 8

It is appropriate that a national institution be subject to scrutiny and judicial procedures. However, it is also important to take into consideration the immunity provisions already mentioned so as not to importune the independent functioning of the institution.

Subsection 9

The penultimate final clause is not clear. Why would one restrict the potential for any amendments to legislation to a period of two years? All legislation as part of a democratic process should be subject to review. I cannot comment on this as I am not familiar with the background for such a clause.

Please note that the above is provided based on a reading of the legislation as provided. I have not have the benefit of discussion concerning it with its drafters and the sole purpose of such comments is to assist in ensuring that any national human rights institution established in the Republic of Liberia is done so in conformity with the Paris Principles. I remain at your disposal for further assistance.

Sincerely,

Orest Nowosad

Orest Nowosad
Coordinator
National Institutions Unit
Office of the High Commissioner for Human Rights

Comments on draft INCHR Act

Protection concerns raised by civil society

April 3, 2007

The weekly meeting of the Human Rights protection Forum, an Umbrella NGO grouping together approximately 50 huam rights defence Civil Society Group for this raised three main questions on the measures being taken by UNMIL, Dyco and the Government to ensure future observance of human rights by the new security services under way.

1. Starting from a complaint that some LNP personnel were brutalising cilivians ( a case of use of excessive force and resulting in a death was cited) the NGO at the meeting demanded that information be provided to the public about how much human rights education is included in the training programme which LNP recruits undergo. Those responsible for the training of the new LNP - mainly UNMIL owes civil society information to allay the fears.

2. With the above in mind, the members feared that the Armed Forces of Liberia in the past reaked havoc on the civilian population and grossely violated their rights. As human rights protection activists, they see the need to ensure no repeat of that through education and sensitisation of the recruits into the AFL in human rights. Can those with authority - GoL and UNMIL as well as DyCo furnish information on the integration of the human rights component into the course or training new recruits follow?

On the two questions raised by the NGOs, it might be relevant to either seek such infromation and help in its dissemination to human rights defence NGOs,Use future meetings on capacity building or information sharing such as the last one we held to review HRPS's thematic reports. Now that the one on Orphanage has come out, we could plan such a session soon to include sharing information in our possession. UNPOL as well as someone from the Ministry of Defence/DyCo could be invited to provide some needed clarifications on the provisions made for guaranteeing citizens' HR in the future.

3. The meeting also briefly discussed the very slow speed with which the process of appointing the Commissioners to the Independent National Commission for Human Rights (INCHR). Information was shared that the original letter to the Presidency by the Special Panel with the list of the recommended 11 names was lost and if civil agitating for quick action wanted to assist, they should produce the list in question. The Special Panel was to be sought to help produce the list. This means the process is further stalled.

In another move, a public position taken by six prominent Liberian Civil Society Organisations demanding that the Government be more vigorous and indiscriminate in its measures of exposing and prosecuting persons who during their tenure of public office positions engaged in corrupt, dubious or any illegal practices. Praise is given to government for the few cases under way but much more is demanded for more thorough scrutiny into the cases of those identified by the ECOWAS and EC Reports.

Our protection role here lies in timely collection of all necessary information and effectively disseminating it to those who have a duty to know and act.

GOVERNMENT’S CALL FOR ‘COMMUNITY WATCH TEAMS’ FORMATION

GOVERNMENT’S CALL FOR ‘COMMUNITY WATCH TEAMS’ FORMATION:THE HEAVY UNDERLYING HUMAN RIGHTS RESPONSIBILITIES

September 2006

The beginning of the month of September was marked by a troubling sudden upsurge in the crime rate and fragility in the general security situation in and around Monrovia – i.e. throughout Montserrado County. The Ministry of Justice, in reaction to the developments issued a press release on September 4, where the Minister of Justice and Attorney General said:

“…We wish to reiterate our earlier call on community dwellers, the face of the Police inability to decisively deal with the upsurge in the criminal activities in the city, to organize themselves into community watch teams or vigilante groups in helping to protect themselves against these murderers …However, the Ministry of Justice must hasten to warn the public against the use of mob justice or taking the law into their own hands in their attempt to protect themselves against these criminal gangs… Additionally, the public is asked to report to the Police any suspicious individuals in their communities.”

HRPS critically examines the decision by the Government against the Liberian Constitutional provisions and international human rights law to establish if there can be any grounds for such groups’ or teams’ legitimacy. The analysis is contextualized in that the specific realities on the ground in Liberia today must be borne in mind as arguments are listened to.

Part 1: The Liberian context: The relevant demographic statistics provided by the UNpolice and Civil Affairs show that almost half of Liberia’s population lives in the troubled area under discussion – i.e Monrovia and the environs. This is roughly 1.5 million dwellers. CA records only 67 LNP and 29 trainees as the available police personnel covering the area. The international recommended police to civilian ratio being 1:120, even with the 404Civpol, and 240 FPU at the national HQ, the total number of 711 against 1,500,000 would be 1:2109 – still far from the required ratio. Additionally, the handful LNP personnel are not armed, have no sophisticated communication means or transportation to swiftly dash to places where crime or trouble is reported.

Military and police reports on crimes show, on the other hand, that miscreants are often armed – sometimes with AK7s, cutlasses and other weapons with which they kill victims. Although operations to apprehend lawless elements involve UNMIL police and military support to the LNP, this has not necessarily made the LNP credible enough to ably confront the criminal elements. The mandate under which UNMIL’s armed personnel operate also limit the extent to which effectiveness in the fight against crime can be pushed.

Part 2: International legal framework: Liberia is a State Party to instruments cited below:

(i) the HRC reaffirms the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and fundamental freedoms. Resolution 1993/54,

(ii) the HRC “recognised, however, that action by civil defence forces ha(d) in some cases jeopardized the enjoyment of human rights and fundamental freedoms.”

Discussion on several Pictures on UPSURGE OF CRIME RATE

PICTURE - 1

The crosscutting nature of human rights is a constant source of heated arguments between and among intellectuals while politicians, industrialists, businessmen and scientists carry on with their occupations. Negotiators produced the CPA in August 2003. Politicians implemented it until January 2006 with UNMIL and other international community participants providing the enabling security, administrative and financial environment and wherewithal. These were the preconditions to the birth of Liberia’s present democratically elected Government under President Ellen Johnson Sirleaf. Hardly a year in office, the underlying challenges bound to confront any team of leaders that assume responsibility of restoring a normal, credible and functional state system after nearly twenty years of chaos and disintegration are proving to be almost insurmountable. Are these birth-pains leading to the new Liberia everyone is dreaming of or is Liberia giving the last breath?

HRPS takes a clear stand: Whatever the case may be, the rights of the Liberian people must be safeguarded. What those rights are is the question this paper endeavours to investigate. The first place to look is in the Constitution where under Chapter VIII, Article 21 (a) states:

“All persons are born equally free and independent and have certain natural, inherent and inalienable rights, among which are the right of enjoying and defending life and liberty, of pursuing and maintaining and security of the person and of acquiring, possessing and protecting property, subject to such”

Equally relevant in this regard for Liberians, since Liberia is a State Party to the International Covenant on Civil and Political Rights is the last sentence in its preamble which states thus:

“Realising that the individual, having duties to other individuals and to the community to which he/she belongs, is under responsibility to strive for the promotion and observance of the rights recognised in the present Covenant.”

HRPS is fully cognizant of the specific unique state of affairs in many respects concerning Liberia. As of March 2006, 85% of Liberians were unemployed; 80% lived on less than US$1 a day; Only 57.5% could read and write. 46% of the population consisted of children aged under 15 - i.e. unless subjected to child labor abuse was dependent/unproductive. If the elderly, handicapped ill are added, the dependent proportion of the population approaches 55%. These statistics tell us that government has hardly any resources with which to meet its part of the Social Contract alluded to by an unnamed author of a long article on behalf of the FORHD national NGO on September 20 and 21 in the Inquirer daily. HRPS knows that the State’s mechanisms to collect revenue, enforce the law or to provide basic services in most parts of the country disappeared during the war years.

UNMIL has deployed considerable resources and thought to accompany both the TNGL and the present leadership in trying to resuscitate local authorities, the police, prisons and the justice systems. An external study to find out how UNMIL has faired so far vis- a-vis its mission was conducted in January and published its findings in March 2006. The general conclusion of that survey was that in security matters 90+% of the respondents found the job done was very good job despite some cautions on specific points – 92% judging the LNP training programme as having been very good even though confidence in the new police was a different matter which would take time to create; 88% stated that UNMIL helped to improve the awareness of human rights and UNMIL radio was accorded a very high mark. “UNMIL …improved human rights by bringing peace to Liberian through increased security, disarmament and enabling people to have freedom of movement.” Interestingly, it is the national NGO FOHRD cited above, which took a prominent part in the evaluation exercise of UNMIL in January 2006 that came up with some damning remarks both the GoL and UNMIL over the unattained goals. Liberians are presented as innocent onlookers who must be given more assistance instead of so much being lavished on ineffective expatriates. In the name of peoples’ rights we run the risk of encouraging laziness if not a form of blaming syndrome. That would be an unfortunate result of our efforts. Elsewhere external assistance is known to produce the dependency syndrome if the “do no harm” approach isn’t conscientiously applied.

The ongoing debate, triggered by the Justice Minister’ statement of September 4, 2006 is apparently fuelled by ideas selectively snatched from major documents such as Jean-Jacques Rousseau’ Social Contract, from the specific socio-political context in France around the mid- eighteenth century (1762), the UDHR 1948, the CCPR 1966, the Liberian Constitution of 1986, the CPA and probabaly Security Council Resolution 1509. Regrettably, but prominently, one crucial source whose Preamble mentions Monrovia and Liberia in the preamble’s second paragraph does not even seem to cross the discussants’ mind – This is the African Charter on Human and Peoples’ Rights – 1981. Within this region, any discussion on human rights is incomplete without reference to this authoritative instrument.

To many, Rousseau is definitely a source of great inspiration in terms of the ideas of individual and collective rights … how much an individual concents to or requires of government or political authority. Essentially Roussaeau admonishes that the best way to enjoy the individual rights by members of society is by each surrendering to the collectivity for the latter to protect the individuals’ interests. Writing on Government he wrote:

“ …in times that require a swiftness which a bureaucracy cannot attain, it is important to act quickly and in one or two ways: appoint one or two magistrates to act as a government, or place one man above the law – a dictator. Both are only temporary solutions and as soon as the danger that catalyzed the change in government abates, the officials must abdicate their position. This is in keeping with the general will because the safety of the state is of foremost concern and suspension of laws and due process is sometimes, albeit rarely, the only method to ensure this.”

While the statement made by the Minister of Justice was clearly far from coming anywhere near what is expressed above, Article IX of the Liberian Constitution on Emergency Powers (of the President) is definitely in the same vein, yet this is not to suggest that the citizens’ rights are being derogated. The features which make the ACHPR a unique human rights instrument is its clear and “Rousseaulike” insistance on the inseparability between individual and collective rights enjoyment. It states:

Consiidering that the enjoyment of rights and freedom also implies the performance of duties on the part of everyone;…

1. Every individual shall have duties towards his family and society, the State and other legally recognised communities and the international community;

2. The rights and freedoms of each individual shall be exercised with due regard to the right of others, collective security, morality and common interest…” The individual shall also have the duty:

3. To serve his national community by placing his physical and intellectual abilities at its service;

4. Not to compromise the security of the State whose national he/she is;

5. To preserve and strengthen social and national solidarity, particularly when the latter is threatened…”

It is against the above specifically African – if also Rousseau’s conception of human rights as a form of formalized collective responsibility that Cllr Frances Johnson Morris’s outraged tone needed be received. Isn’t good governance participative democracy? Isn’t the empowerment of civil society through enhancing peoples’ involvement in the decision making processes on issues affecting them?
Does Government’s admission to having limited resources or trained personnel and calling on those who put it in office to support its initiatives constitute a breach of contract or a human rights violation? If, as the long article in the Inquirer cited above argues, security and the crime rate have reached unprecedented levels in Liberia’s history, is this not ground for the Minister to resort to some extraordinary measures to check the law breakers? As responsible citizens, shouldn’t constructive criticism consist if coming up with alternatives ideas to those from the government? If we disapprove of neighbourhood watch teams or vigilante groups, what propositions are made?

Our contribution at this point in time on the sensitive subject of ‘vigilante groups’ could be to facilitate sober high level exchanges of views by providing a neutral oasis in Monrovia. We could invite approximately 20 discussants from civil society’s different walks of life – Lawyers, Human Rights defenders, Religious leaders, Traditional leaders, Student representatives, medical Doctors, Business men, etc… Using the special US$ 400 scheme of funding or a little more for this special meeting – the UL could be a venue or perhaps another place. We could indirectly help guide the thoughts and have a healthy debate on the way forward - free of political or ideological attacks and counter attacks. This could be done in such a way as to have journalists and the television service cover. The event should not take place in PAP.

Reasons for the above approach:

As stated in the first paragraph, human rights are not a distilled, pure and colourless substance. This discussion involves economics, politics, business, history and every subject fused together. Everyone must say what they want and all are entitled to their views. We should avoid trying to be judges in this – from the human rights view point so and so is right but so and so is wrong etc….

Our work continues to be important and neutral the way we work and our credibility is vital. On this political discussion resulting from the Minister’s statement we should take advantage of the vibrancy and help different voices to be heard. We will have played a useful role.

PICTURE - 2

I would suggest considering the following points for defining overall position on vigilante groups:

• Human rights law protect the right to life and security of person, however there is no international human rights instrument upholding vigilantes’ concepts , because:

•vigilante undermines all democratic principles as it operates outside the constitutional / human rights framework and formal judicial system:

• Vigilantes define violence as the normal and legitimate solution to problems.

• It supports community mistrust to criminal justice system and law enforcement and provides a justification for extra-legal violent actions.

• The human rights framework of the formal criminal justice system is fundamentally opposite from the model of instant, popular justice

• Call for vigilante reflects the degree to which due process remains an alien concept for many and implies a lack of education about due process.

• Society should operate under the rule of law and not under the rule of the mob

• The danger of ‘vigilante’ in times of political transformation and reconciliation as Liberia is emerging from a past characterised by violence and repression

• Liberia faces new challenges in building a new democratic society and vigilantes is build on a culture of violence and lead to violence even if justified as 'filling a policing gap' due to police inefficiency, corruption and failures of criminal justice system

• A state of law cannot be built on people taking matters into their own hands.
• The failings of the criminal justice system - the inefficiency, inaction, lack of resources and inadequate training, as well as corruption must be addressed directly.

PICTURE - 3

Thank you for the time devoted to this crucial matter. Your quick response is also very commendable. We shal discuss. In actual fact every recommendation you make I buy.

What we have a a difference is the appreciation of the specific urgency or crisis context where special measures may be needed, and the normal governance situations which would not necessitate special measures. Indeed the special conditions must be given a limited duration. Please see CCPR Article 8 (c) and the Liberian Hinterland Laws Article 49 para 5 on this. Dr. Dankwa touches on this delicate issue too.

What I would categorically disagree on with you is the following bullet point you make:

· Call for vigilante reflects the degree to which due process remains an alien concept for many and implies a lack of education about due process.

I fear that such a statement betrays ignorance on the part of aliens to Africa and African traditional judicial concepts. First I invite you to find an African who speaks the language to translate for you these two proverbs: "Tosala gwa kawala ...." and " Enkima tesala gwa kibira". The language is Luganda from East Africa but some equivalent should exist in Liberia's nearly thirty native languages.

In my first document I gave examples of cases where security and peace in rural communities where the received "western" or modern services existwere restored and citizens'rights protected by the community. It would be wrong to imagine that any other approach to peace or dispensing justice is inappropriate except that known by those who wrote the instruments at the time of their writing. Please take a serious note of the added value brough to the general human rights understanding by the ACHPR which lays equal emphasis on dutie and rights as opposed to the "western original tendency to overly insist on peoples' rights. Fortunately, a deeper reading of Rousseau vindicates my view.

Instead of us been theoretical about the issue on the formation of vigilantes in communities to help combat crimes, can we take a moment to look at the realities on the ground? Before President Serleaf left for the United States recently, she made a nation wide addressed in which she acknowledged the upsurge of crime and insecurity in the country, and further disclosed publicly that, they (government and its functionaries) know the people perpetrating such crimes and that they are watching them closely. This suggests that the recent upsurge of crime and insecurity in Monrovia and other places in the country is well orchestrated. It also suggests in my opinion that the arm robbery may not be for the booty alone, but been done with sinister motives. I stand to be corrected.

PICTURE - 4

Let someone tell me if these are not facts in today’s contemporary Liberia:

Fact #1: That the Liberia National Police is unequipped and most under staff to combat the wave of crime unfolding now in Monrovia.

Fact #2: That with such limited national budgetary appropriation for security for 2006-2007; the problem of insecurity in Liberia will remain for a long time probably the next 2 to 3 years. That is, if the budgetary appropriation continues to take the 2006-2007 trend.

Fact #3: That we all acknowledge that it is a national and international requirement that it is the responsibility/obligation of government to provide security for its general citizenry.

In passing, let me reveal that Liberia has a history of government oppositions doing everything possible in making sure that the incumbent leadership does not succeed in the implementations of its electoral promises. Hence, they will do anything thinkable and/or unthinkable in undermining the incumbent, even if it is at the detriment of the entire population.

So to speak, Kitty’s bullet points on this issue in my opinion are all correct, but realistically, they are only applicable and/or made practical in wholesome functioning societies. That is to say, the Minister of Justice called for the organization of vigilantes in communities is not a sign of weakness but is in consistency with the present day’s realities and resources available to government.

It is a fact that Criminal Gangs do exist in Monrovia. This is evident by the multiple report of arm robberies, the multiple deaths and forceful taking away of others properties due to arm robbery, and the general state of fear and insecurity that has grasp the Monrovia population also because of same.

Now, acknowledging that it is a fact that government is incapable of providing absolute security for its citizenry; as evidence by the present realities and further by utterances made by public officials responsible for national security, what should the citizenry do?

In answering my own question, I will say that if it is agree that self-preservation is the first law of nature, than I see nothing wrong with the formation of vigilantes who will intercede for government’s limitation until such times when government will be capable of handling its role as national security provider. The protection of the life’s and properties of the citizens in my opinion is paramount, and as such, if government have short falls in executing its mandate as protector of these inalienable rights, than let the citizens organize themselves in an orderly manner, under the supervision of the MOJ, and fill in the gap of providing security for themselves. In my opinion, Vigilante today in Liberia is an equivalent of the American Home Land Security established after 911.

PICTURE - 5

1. I have worked here for almost two years and this is not the first time that I read or hear an argument or comment from you based on your belief that the so called "aliens to Africa" do not understand African reality and try to force Africans to adopt to "western concepts".

2. Please remember that human rights are universal and human rights law is applicable in all those countries that ratified international human rights documents regardless of their geographical location or cultural background.

3. Do not deny the fact that there are African traditional judicial concepts that are actually in violation of international human rights law. And I am not saying this because I am a so called "alien to Africa" but because I firmly believe that all human beings are entitled to have the same rights and the same protection of the law may they be coming from a Western or an African background. Being an African does not mean that one deserves less than any who are "aliens to Africa".

4. We are here to work for the common goal. We might have different views on some issues but it is not because of our different geographical origin or cultural background but because of our different level of experience.

5. Please in the future do not criticize the views and statements of any of your colleagues based on their geographic origin or cultural background.

PICTURE - 6

Sorry if that is the way you perceived my remarks. We need to realise some things in life though, however gifted we may be. Cultural things are complex and truly, we may be mistaken without realising we are. Sometimes we do not see obvious things because we are not from the society where we find ourselves. I know this is hard for many of us to admit, but it is true.

Let's take two very simple examples: African women are not so nervous about exposing their breast. In fact feeding of babies in public is very common. On the contrary, exposing nay part of their body from the hip down to the knees is taboo in many places. Yet, in many societies in Europe, exposing breasts not something women would do without much restraint, and in fact even a mother to feed her baby will most times try to do it away from the public. Believe me , in Europe I am ignorant of many cultural things and I would not pretend otherwise.

You may have to consider my remarks again. Just like Elaine mentioned: I know responsibilities or duties is not completely ignored in the Western presentation of human rights, but the prominence given to right in the sense of "entitlements" in the West disproportionately overshadows the responsibility side. The African Charter on Human and Peoples' Rights stands out in its balanced presentation of rights and duties. Even the UDHR does not bring out this aspect.

I wish your contribution was more on the substance of the subject we are dealing with. Nevertheless, you do well to express what you feel in these matters. Friedship not lost, I'm sure.

PICTURE - 7

Initially, please let me mention your following assertion "Human rights law protect the right to life and security of person, however there is no international human rights instrument upholding vigilantes? concepts , because??"

The international public law has coined the status of ?belligerent part or part in conflict? related to those insurgent groups involved in a war for the control of power between the limits of national states. But to be considered as belligerent parts or the part in conflict, these must accomplish two main conditions: a. to have control of a piece or part of the national territory, b. must to be recognized by other governments and international organizations. Please bear in mind the negotiation and signing process of the Accra Peace Agreement. These conditions were achieved.

The recognition of the part in conflict or belligerent part in this debate derives in some effects: ones recognized as part in conflict, those groups are recognized as valid interlocutors, which implies that these groups are fully entitled to sing agreements, and assume international duties, so recognized as subject of international law. This approach burst into the International Human Rights annals in 1994 with the signing of the Human Rights Agreement held in Guatemala, among the Government of Guatemala and the coordination of guerrilla groups, through this agreement was created the UN Mission in Guatemala (MINUGUA) which initially had only mandate of human rights monitoring. This trend currently is applicable to the Colombia?s conflict and OHCHR office?s work, whereas the international human rights law recognize as perpetrator of human rights to others groups different that governments.

In the Guatemala case, was the first time that an irregulars group was considered and pointed as a perpetrator of human rights violations[2], in the Colombian case this approach allows to point to the paramilitary Self-Defense Patrols and the guerrilla groups as eventual perpetrators of human rights violations.

At this stage, is important to identify some referents to guide the debate such as: Does Liberia has concluded the transition period? In my opinion: not yet. Do parts in conflict has been fully demobilized and have been successfully reintegrated to the Liberian society? Again, in my very personal opinion: neither. Do the parts in conflict signatories of the Accra Peace Agreement have been recognized as subject of international public law? Yes, of course.

I sustain that the parts in conflict?s approach bring a better comprehensive framework to deal and monitor the illegal activities of vigilantes. Otherwise means that the illegal activities committed by illegal groups related to one or another part in conflict must be considered as common crimes, without that plus derivated of the quality of belligerent part or part in conflict, a condition embedded in the relations of power.

We are in a junction; on the one hand we should monitor the illegal actions perpetrated by illegal groups in accordance of the classical human rights approach, whereas the Government is the responsible for the protection of its citizens because of crimes committed. In this first paradigm we just are allowed to monitor the inaction and/or omissions done by the Government of Liberia in the protection to its citizens, in this case we?ll find that the limited resources, poverty and corruption are the facilitating conditions which prevail in this scheme. That means that our main observation will be focused in the guarantees of the due process and fair trial, therefore the main responsible as eventual perpetrator will be the Government of Liberia.

On the other hand, the approach of part in conflict allows understanding the dynamic of the political transition and reintegration of these groups. In this case we should monitor the illegal activities perpetrated by individuals and/or illegal groups, thus our attention will be focused not only in the government?s ineffective policies, but also in the illegal groups related to the signatories? parts in conflict, as well. So the object of our observation will be the ineffective public policies of government and the illegal executions or illegal activities committed by those groups. So the framework here proposed is broader and allows a better understanding of the political dynamic of the Liberian transition integrating the human right approach.

So I?m sorry, but I totally disagree with your initial assertion, the international human rights law per se cannot integrate this complexity, because the human rights standards are not related to illegal activities of the vigilantes, but in this case, is the international public law which offers that comprehensive framework, and allows the application of the human rights standards to these illegal groups. I really believe, at this time of the Liberian transition that is possible to point to the illegal groups related to the part in conflict as human rights perpetrators, as well as, the international human rights law is applicable to them.

Therefore, is urgent to ask the following question: Are we dealing with illegal activities committed by illegal groups related to the part in conflict? If so, we are in the way to apply the above proposals, and pass to another level of debate related to governance, stability and the viability of the Liberian peace process.

Please see bellow my prior comments, whereas as I suggested the analysis of the vigilante activities in two different levels: operational and politically.

PICTURE - 8

I agree with you that there are so many different cultures in the world and often we find ourselves in an environment where we do not understand clearly the complexities of social relations and cultural issues. However, law (especially human rights law) does not apply differently for people from different cultural origin. On the contrary. Law applies equally to all. Liberian governments voluntarily ratified a number of international human rights instruments. Now, let's not give them the excuse of cultural differences when it comes to the implementation of principles enshrined in those instruments. But you are right this is not the main subject of the discussion so I will stop giving comments about it. I think I have already made my point. And friendship is not lost :-)

PICTURE - 9

In reaction to the upsurge in crime rate across the country, the Minister of Justice, Attorney General of the Republic of Liberia said in a statement issued on 02 September 2005: “ We wish to reiterate our earlier call on the community dwellers, in the face of the police inability to decisively deal with the upsurge in criminal activities in the city , to organize themselves into community watch teams or vigilante groups in helping to protect themselves against these murderers who are bent on disrupting our hard-earned peace”. This statement made by the Ministry of Justice in this particular context is an endorsement of the “Vigilante groups”, “watch Teams” or “civil defence forces” .

If the Liberian Government has endorsed the Vigilante groups, it means that the Government has entrusted “watch team” with the mandate of conducting law enforcement functions to a certain extend.

Vigilante groups, as law enforcement groups or civil defence forces with clear chain of command and operational functions, should be consistent with national and international human rights standards. HRPS observed that some Vigilante groups are not abiding by human rights principles. During the Sector 1 Security Coordinating meeting held on 18 September 2006, SSS Representative Col Peter Teah indicated that some vigilante Groups are collecting 200 LD “security tax” per house to sponsor their security operation in the night. He stated that failure to contribute has resulted to violence actions against members of the non contributing house. He further indicated that some members of those vigilante Groups are “isakaba boys”. Mob justice is rampant and has become the last resort of citizens who has lost confidence in the judicial system. It appears that Vigilante Groups can undermine the realization of six fundamental rights provided by the ICCPR, ratified by Liberian on 18 April 1967:

• the right to life;
• the right to liberty;
• the right to fair trial;
• the right to presumption of innocence;
• the right to physical integrity( prohibition of torture, cruel, inhumane and degrading treatment);
• the right to security of person;

All those rights are enshrined in the Chapter III of the Liberian Constitution. In line with the above mentioned, Liberian Government should:

• Ensure that vigilante groups meet human rights standards including the UNDHR, the ICCPR, the CAT, the African Charter on Human and People’s Rights, the Chapter III of the Liberian Constitution, the UN Code of Conduct for Law Enforcement Officials and the Basic Principles on the use of Force and Firearms by Law enforcement Officials.;

• Government should assess their ability to respect and protect human rights;

• Government must ensure that vigilante groups respect the presumption of innocence at all times. Suspects apprehended must be immediately turned over to LNP ;

• Government should ensure that members of vigilante groups who commit human rights abuses are brought to justice;

• Liberian Government must conduct a wide consultation of civil society 0rganizations including Human rights groups, on this particular issue.

This sensitive issue must be addressed urgently as some politicians might sponsor and convert Vigilante groups into militia, to foment political violence and jeopardize the Liberian hard-earned peace. Peace is priceless.

PICTURE - 10

I have follow closely this debate and did not comment because of the wave it is taking and wish to suggest that all of your concentrate on the substantive issues and discuss the meat of the document presented that is like what Omer, Stanley and Elaine and others did let us now make contributions and drop the arms. I wanted to make my own comment but it is one way of the other reflected in some of the contributions. Also, to big brother ...N... not all of the comments required details reactions just thank all for their contributions, no matter how it is perceived. All the best as we all strive to make Liberia human rights friendly, peaceful and democratic.

A Paper on INCHR

James Munibah
June 2007

INDEPENDENT NATIONAL COMMISSIONS ON HUMAN RIGHTS OF LIBERIA A CATALYST FOR NATIONAL UNITY, PEACE-BUILDING CULTURE OF RECONCILIATION, EFFECTIVE JUSTICE DELIVERY AND RIGHTS PROTECTION.

BACKGROUND:

The objective of this paper, is to set out the linkage of how the INCHR of Liberia can work with the other institutions of government, to promote national unity/reconciliation, and a culture of peace as against impunity, that will motivate other government agencies such the Ministry of Health, Public Works, Planning, Youths, Gender, Finance etc, to see their Ministries as a component arm of the process to have an effective justice delivery system that is aimed at rights protection and championing of the rein of the rule of law.

This paper would further review the structural violence that have been occasioned as a result of the dysfunctional nature of the present day Liberian judicial system, which has resulted in the abuse/disrespect of the procedural rules of the Judiciary and, Police systems of the state. In particular, the way this structural violence is been perpetrated by agents of these two organs of government against the ordinary citizen of Liberia.

A scenario of the present realities of the status of the rule of law as it concerns the three component organs, saddled with the responsibility of the national human rights protection mechanism of Liberia, from a crisis triangle diagnosis perspective, as an instrument of transforming an institutional structural violence to a peace-building tool, that would be applied to the blaming syndrome currently vested against each other by the judiciary, Police and the Correction Institutions.

Above all, after having done the above existential reviews, ways of creating a new culture of respect of human rights/best practice of the respect for the rule of law, that would conform with internationally accepted practices would be recommended via the check and balance roles the INCRH and a Judicial Service Commission, will perform in a proposed new dispensation.

THE INDEPENDENT NATIONAL COMMISSION ON HUMAN RIGHTS (INCHR).

The INCHR will be discussed or looked at from the anticipated role proposed for it in the revised Act of 2005, as well as from the government of Liberia’s expression of its firm faith in the Universal Declaration of Human Rights of 1948, and by its adoption/being signatory to a wide range of international human rights and humanitarian treaties and conventions.

Similarly, from the contemplative aims/objective goals of Article XII of the Comprehensive Peace Agreement signed in Accra, which stated that an Independent National Commission on Human Rights should be created.

The INCHR, as its name stands, reflects it deep contextual role of independence and nonpolitical institution of the republic of Liberia, (Art.1 of 2005 Act). This independent nature of the INCHR, gives it the free will to work consistently and freely with different parastatetals or organs of government, regardless of whatever party is in power, to achieve it mandatatory duties of mainstreaming human rights protection/the rule of Law into the working system of these organs/parastatetals of government.

The operative proviso, which enhances the above-mentioned powers of the INCHR, is Art. III (3)(a), which states that…

“ Without affecting the generality of the competence vested in the Commission by section 1, the Commission is among other things, authorized and empowered…(a) to inquire or investigate, suo motu or on complaint presented to it by a victim or any person on his/her behalf, into a complaint of violation of human rights or abetment thereof or negligent in the prevention of such violation by the state or any of its functionaries or public servants, or any other related person”.

This certainly is a pointer to the INCHR cross checking functions of a making sure that both the government and its organs of state conform to the rule of law. The Act further in subsection (3)(B), goes on to say that… to exercise power to handle such complaints, investigate human rights violations, and conduct hearings consistent with the due process of law, the INCHR may transmit the complain to any other competent authority within the limits prescribed by the law.

To further amplify the oversight linkage in connection of the INCHR to these government agencies such as the different ministries that play a role or some actions that has direct or indirect contact/effect on the justice delivery and rights protection system, the Act gave the INCHR the powers to promote econciliation and a culture of seeking for peaceful resolution of cases of omission resulting in the violation of human rights that may have arisen from the neglect/negligent or abuse of office by officials of these ministries or organs of government. The proviso which spells this out, read thus…Art.3 (b)(4)(c)…”to recommend the concerned authority or functionary of the state for prosecution or such other action as the Commission may deem fit against the concerned persons or persons, or in appropriate cases, as prescribed by the rules made in this regards, and with the consent of the concerned parties to seek an amicable settlement of the case through conciliation; ……Provided that the purpose of the conciliation shall be only to rectify any act or omission, emanating from or constituting a violation or threatened violation of human rights”.

The intention of the drafters of this proviso of the Act, in my own subjective opinion, is not to serve as a punitive measure on the erring official of the state, but to stand as cohesion force that mitigates against the culture of impunity, while embracing the promotion of the culture of peace via a restorative justice mechanism tool of conciliation. In the light of this fact, one is saying that officials of state organs concerned with rights protection should have in their deep consciousness, the desire to marry the culture of seeking peace, reconciliation, transparency that would generate the integration of the rule of law in their performance of the procedural requirements for the authority of the office they represent.

If these officials have this at the back of their mind, while at their duty post, be it the Police man/woman or the Judge who adjudicate over matters, one would come to see in Liberia from henceforth, a reduction in indiscriminate arrest without proper investigation and have Judges that would not indiscriminately order suspects to be locked up or placed under pre-trial detention for indefinite period without minding their rights to fair hearing/bail depending on the nature of the matter before the Judge.

However, for the INCHR, to function effectively in the Liberia of today, cognizance must be given to the issues of funding, accountability, and transparency, as covered in the Art. XIX. Section 1, of this article worry me, especially as it states that the government of Liberia should ensure the provision of adequate resources to the Commission via consultation with the legislature and the Director General of Budget. If this is the case, how independent can the Commission be from the government it depends on for resources? This in my view, may stand as a negation of all the aforesaid herein, in my discuss on Art.1. But suffice to say in another light, that section 3 of Art. XIX comes in as a check to the government likelihood of influencing the works/functioning of the INCHR. This section gives the INCHR, the powers to make request via proposal to obtain external funding from private, international, non-governmental organization or inter-governmental agencies at home and abroad. The section goes further to spell out the accountability duties required from the INCHR, (section 4, 5,6,7and 8).

Finally, in Section 10 of article XIX, the INCHR is mandated to be transparent in all that it does. The provision of the section states thus… “Transparency, through publication and information dissemination shall be the policy of the Commission.” This I would say reflects a means of check on the activities/actions of the INCHR as an institution with due responsibility to the Liberian people.

In summary one would say that if the INCHR, works towards the objectives as laid out herein in this paper, it would be in a position to mainstream the actual transformation of the rule of law and rights protection to not just having an effective justice delivery system, where the Police, Judges and the Correction Units, work hand in hand, but also having government organs understand their key role in working closely with the INCHR via the rule of law, to foster national unity and building of a society where peace reins supreme.

INSTITUTIONAL STRUCTURAL VIOLENCE AND THE DYSFUNCTIONAL NATURE OF THE JUDICIARY.

I must begin by saying that if we do not work to put the Liberian judiciary in conformity with internationally accepted standards, we would be unknowingly working towards encouraging/supporting the structural violence, that would not only lead to a break down of the justice system but also may result in the return to the culture of impunity and neglect of the rule of law, which is in my view, is the present unseen governing norm ruling the judiciary, police and correction unit officials.

To understand how this institutional structural violence operates, we would review procedural from the stage of complaint to the Police, to what happens when such complaints come to the magistrate or circuit court judge, and if need be, onwards to the Supreme court judge if necessitated. And finally, to what goes on in the correction institutions, all with a view to soliciting ways of addressing effective mechanism that would enhance a justice delivery system that guarantees right protect of the individual ordinary Liberian.

The main actor/agent that commences this institutional structural violence is the Police. They often, but not in all cases, make indiscriminate arrest, with the arrested suspects invariably being detained without being taken to court first (see chapt.iii, Art. 21 (d)(ii. b.) of the constitution of Liberia) and within the specified period of time required by law. The aforementioned section of the constitution, is very explicit on the need to ensure, the arrested person get access to justice on time, when it states thus…

“Every person arrested or detained shall be formally charged and presented before a court of competent jurisdiction within forty-eight hours. Should the court determine the existence of a prima facie case against the accused, it shall issue a formal writ of arrest setting out the charge or charges and shall provide for a speedy trial. There shall be no preventive detention”.

But more often than not, the spirit of the proviso above is not the reality. What we see is the police using their discretion to instill structural violence on the citizen that the constitution has placed a duty on them to protect their dignity and person. They do this without taking cognizance of the last operative part of the proviso, which precludes them from carrying out acts of preventive detention. It is my contention that, Police officers while performing their lawful duties must have at the back of their mind the provisions of Art. 16 of chapt.iii of the Constitution, which states that.

“No person shall be subjected to interference with his privacy of person, family, home or correspondence except by order of a court of competent jurisdiction”.

If they adopt the spirit of this proviso, as a condition check, while receiving complaint or in the process/execution of an arrest, they would certainly respect the rights of the citizens and be more disposed to conforming to the provision of Art. 21, mentioned above. And better still, they would now be more proactive in performing duty of informing the accuse person of the detail of the crime committed as required by section (c) of Art. 21 of chapt.iii ”…. every person suspected or accused of committing a crime shall immediately upon arrest be informed in detail of the charges, or right to remain silent…”. In effect, on the long the citizenry would see them as not being an institution that creates structural violence on them, but one that respects the rights of the citizen.

The other institution that acts as an accessory after the action of the Police is the judiciary arm of government, through the actions of officials of court and in some cases inconiaviance with judges who abuse the power of their office. The allegations against the judges is that, they indiscriminately order suspect to be locked up or placed under pre-trial detention for indefinite period, regardless of the status of the suspect’s age, sex peculiarity eg, pregnant women in advance stages, mothers with babies, minor and even without taking proper cognizance of the gravity of the offences committed.

If the afore-stated allegations have any element of truth in them, it would be a pointer to a very negative signal. That the judiciary that is duty tied to uphold the fundamental Human Rights of the citizenry, as required by the constitution and international conventions on Human Rights, that Liberia is signatory to, has now become the bedrock or accessory to inflicting institutional structural violence on the citizenry of Liberia. ( see chapt iii, art ii sections a-c). “ … All persons are born free and independent and have certain natural, inherent and inalienable rights, among which are the right of enjoying and defending life and liberty….”).

However in pursuance of the above stated, and in total respect to all positive justice system world wide, that are base on concrete constitutions that provides for this inalienable rights, I will assume that the allegations are not in any way justifiable and as such, would concern myself here with the constitutional laid down procedure/practices that are provided to mitigate against institutional structural violence.

But first, I will be examining the consequences of structural violence from the postulation of this poser, can the rule of law/rights protection be adequately mainstreamed into a post conflict society that lacks manpower support, and is base on a constitution/laws that are not in touch with urgent basic needs of the justice system of the society for rights protections of the citizenry.

To address the issues raised in the postulation above, one must first look closely at the existing constitution of the said post conflict society, and for our purpose, we will deem that constitution, to be the present Liberian constitution. The constitution is looked at to ascertain how it has succeeded in providing for separation of powers and on the other hand to find out, if its provisions in spelling out the responsibilities/duties of the executive, legislature and the judiciary abide within the context of the governance of rule of law via checks and balances or if it leaves any room to allow for abuse of power/structural violence.

The Liberian constitution does provide for separation of power in a restrictive/limited matter by its provisos in chapt. V, VI, and VII. But what actually is worrisome is the over influencing role of the executive on the other arms of government, like on issues of appointments of judges of most courts in the land and Notaries Public/Justices of Peace. See the joint effect of chapt. VI, art. 54(c),art.55, vis-a-vis chapt.VII, art. 68 and 69. This power of the executive to chose/appoint may result in the judiciary being partisan and polarized by the dictate of the wishes of the executive and by extension giving these appointees the opportunity to pledge their loyalty not to follow the rule of law but to attend to the demands of the executive.

So, what we would have in this sort of separation as spelt out by the Liberian constitution, are judges, justices of peace and notary public that would not mind the demands/duties of their office as it concerns the adoption of the rule of law and protection of the individual human rights of the citizen but rather would be more inclined to see themselves as having the sacrosanct powers to do as it please them.

The resultant effect of the above is that the judiciary in functioning like this will inflict institutional structural violence on the people by ignoring the need to protect their basic rights when duty fall on the state.

However, to redress this situation the judiciary appointments due to the executive, should be limited to picking from a number persons nominated by a judicial service commission, which one is suggesting here should be put in place now to solicit ways of linking with other judiciary bodies in the ECOWAS regions to exchange ideas on ways partnering that can be of benefit to the Liberian judicial system. One such ways of partnering can come from bilateral arrangement to have judges transferred from countries with similar law system to the Liberian judiciary. And during their working time in the country, arrangement could be put in place for them to be shadow-watched by law student and law graduate in the law school. If this is to be, the joint effect of the proviso’s of chapt. VII, art.68 (a)(b) and 69(a)(b) which prevents the non-admission of a person who is not a Liberian to be appointed a judge of the Supreme court or any subordinate court must be waived aside/amended without undermining the constitution (art.76(a)(5) of chapter VII. Article 34. (d)(iii)(b) of chapt. V., which gives the legislature powers ’’…to approve treaties, conventions and such other international agreements negotiated or signed on behalf of the Republic..’’ can be employed in this instance to effect this international judicial partnership. Chapter XII.art. 91 can also be used to amend the provisions of chapt VII art.68 (a)(b) and art.69 (a)(b) mentioned above.

In line with the above, especially now that manpower is not sufficient to man the different sectors of the Liberian judiciary, training in Alternative Dispute Resolution (ADR) mechanism that accommodates persons who are not lawyers can be solicited for, via a technical aid arrangement to be supported by the World Bank and International Law Institute, Washington DC.

Funding of the judiciary is another element in the Liberian society of today that has influenced officials of the judiciary system to be structurally violent to the poor and vulnerable of the citizenry. Although chapt.VII art. 72(a) provides for opportunity for increase in the salaries of justices of the Supreme Court and judges of subordinate court, when it states that ’’….Allowances and benefits paid to justices of the Supreme court and judges of subordinate courts may by law be increased……’’ The reality on ground is that their salaries like other civil servants are unrealistically low and are in many instances not paid on time. Definitely, a judge faced with this kind of situation, will have no option but to resolve to avenues of getting monies from litigants/parties in actions or cases before him/her. Justice gotten in this way definitely must have an adverse and structural violent impact on the party that cannot provide the funds needed to persuade the judge. And more often than not this party is the poor/vulnerable Liberian that is unemployed and not socially catered for by the Liberian government. His /her economic, social and cultural right as required by international conventions to be protected becomes denied by the agent of the government that is suppose to protect these rights. To my mind, I would say that it in this sort of situation that the civil society (NGO’s) dealing with human rights issues and the INCHR should bring up through the media to get the government to redress the lapses.

In summary to avert this envisage institutional structural violence from the judiciary system and to start creating an environment for the rule of law and rights protection to prevail, civil society groups and key stakeholders should start advocating for Judicial service commission to be included as part of the autonomous public commissions mentioned in chapter 8, article 89 of the Liberian constitution. It my belief that once this goes through and get the approval of the executive and the legislative arm of government, many positive reform will begin to take place in the justice delivery system of Liberia.

DIAGNOSIS OF THE SCENERIO OF PRESENT REALITIES

The scenario of the present reality revolves like this, the three component parts of the Liberian human rights protection mechanism, that is the judiciary, the police and the corrections institution shifting blame on each other for the justice system’s malfunctioning.

It start’s like this, the Police effecting indiscriminate arrests, with the arrested suspect invariably being either detained, without being taken to court contrary to the constitutional provision on fundamental human rights as contained in chapt. III. Art.21(c) and (d)(ii)(b).

And then when a judge gets involved he in turn would indiscriminately order that the suspects be locked up or place under pre-trial detention for indefinite period which by implication or a subjective interpretation may connote that he is acting in a preventive capacity. But the truth is that the Liberian constitution frowns at this kind of action. The constitution, explicitly in its chapter on human rights provision, states in the last bit of art.21 (ii)(b) that states ‘’…. There shall be no preventive detention.” It similarly provides in art.21 (ii)(c) for the right to the writ of habeas corpus to protect the accused persons human rights.

Then the situation will now rotate to the Correction institution, when it comes to the stage of detention and overcrowded prisons. The condition in the prisons is thus, inadequate provision of feeding, lack of basic sanitary necessities for the inmates and small room space for keeping the inmates, which in some cases may result in women/men being kept tighter in the same room space.

The light of the foresaid, we can begin to address these problems by diagnosing it through a Crisis Triangle Mechanism. And our first step will be to review the Justice System Fault-Lines.

JUSTICE SYSTEM FAULT-LINES.

Right to arrest vs. Fundamental Human Rights.
Judges right to order detention vs. Rights to bail/habeas corpus.
Government providing standard prison facilities vs. Thematic rights of accused to be kept in proper healthy conditions

Power- who checks, oversee and put best practice procedure in place.

Judicial system culture- who penetrates, conditions, initiates the negative culture.
National procedure vs. Trial by Ordeal, normal vs. marginalisation to participate
Geography- Center vs. Periphery or centralism of justice system

These boxes represent the visible (B) Behavior of the justice official on the top of the crisis triangle. It is the antagonism that occasion’s the intuitional violence that they afflict adversely on the individual Liberian’s fundamental human rights.
Understanding the base line of the crisis triangle, that is made up of the (A) Attitudes and the (C) Contradiction of the justice system official’s means having the empathy to comprehend the motivating factor behind their actions. From the above point, we will move deep into the crisis triangle, to look at the (DB) Deep-behavior, (DA) Deep-attitude and (DC) Deep-culture/contradiction that is motivating the visible behavior on the outside by the justice system officials. To get a proper appraisal of this we need to do an analysis of the basic needs of these officials to ascertain the legitimate and illegitimate goals of their needs vis-à-vis the rights need of the individual Liberian citizen in the deep context of the past legal justice system and the anticipated new effective justice system that would guarantee rights protection.

Then the new culture triangle made up of the (NA) N-attitude, (NC) N-culture and the (NB) N-behavior is originated on the rule of law centered on rights protections geared towards peace-building and national unity.

The issue of the legitimacy/acceptance of the third party intervention at forming/contribution to the assumption and objectives of the future vision for the justice system of Liberia, in restructuring/refocusing the justice delivery system becomes relevant here. The assumptions that warrants their intervention, like the proposed Judges Transfer Arrangement with some ECOWAS countries or the Technical Training Arrangement with ILT, Washington DC in partnership with the World Bank, herein before mention, is spelt out in the Transformation lines highlighted below;

LEGITIMACY FOR THIRD PARTY INTERVENTION

As a fellow human being they are party to the human suffering experience as a result of the dysfunctional nature of the Liberian justice system.

As a fellow human being their agenda is to reduce the institutional violence occasioned by the ineffective Liberian justice system.

As third party they can bring another point of view

They may have a limited understanding of the Liberian context, but are willing to lean from dialogues with inside parties in search of the way forward for the justice system of Liberia.

If the above stated, has become operatively achieved, we will then see the qualities of an effective judicial system coming into force. However, on a final note, this will be if due concern is taken to actualize the all above stated. I will recommend the following;

- AMENDMENT OF KEY PART OF THE CONSTITUTION
- SETTING UP OF A JUDICIAL SERVICE COMMISSION
- SETTING UP OF A LAW REVIEW COMMISSION
- GETTING CONSTITUTIONAL RECOGNITION FOR THE (INCHR) OF LIBERIA
- PREPARING GROUNDS FOR THE ECOWAS JUDGES TRANSFER ARRANGEMENT
- CREATING A MECHANISM FOR MAINSTREAMING HUMAN RIGHTS PROTECTION AND THE RULE OF LAW INTO THE DIFFERENT GOVERNMENT MINISTRIES/INSTITUTIONS
- EXPORE THE OPPORTUNITY TO GET TRAINING FOR PERSONS WHO ARE NOT LAWYER IN (ADR) PROCESS TO BACKSTOP THE PROBLEM OF SHORTAGE OF JUDGES

Human Rights Liberia

Friday, March 30, 2007

HRPF Letter sent to the President regarding delay in the INCHR appointment process March 19, 2007

Transitional Commissioners of INCHR (Jan 2004-December 2005)

Comments on draft INCHR Act

Comments on draft INCHR Act

Protection concerns raised by civil society

GOVERNMENT’S CALL FOR ‘COMMUNITY WATCH TEAMS’ FORMATION

Discussion on several Pictures on UPSURGE OF CRIME RATE

A Paper on INCHR

Blog Archive

About Me