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