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Lessons and Reflections on the Past Present and the Future from Liberia

  

Truth & Reconciliation Commission  of Liberia Splits

-Commissioner Says  Process was Illegal and anti-Peace

Excerpts  from the Report of Legal Expert and TRC Commissioner Pearl Brown-Bull on Why She Did Not Sign Liberia's Truth and Reconciliation Commission Final Report of June 30, 2009.

Posted July 12, 2009

I did not sign the Consolidated FINAL REPORT, Volume II of  the Truth and Reconciliation Commission of Liberia, and dissent to said Report for the following factual, legal and prudent reasons to wit;

The TRC Decisions on prosecution and lustration …are not in consonance with the 1986 Constitution of the Republic of Liberia,

  1. The Act to Establish the Truth and Reconciliation Commission (TRC) of Liberia,
  2. Truth and Reconciliation Commission of Liberia (TRC) RULES and Procedures REVISED April 2007,
  3. Act to Grant Immunity from Both Civil and Criminal Proceedings Against All Persons Within the Jurisdiction of the Republic of Liberia from Acts or Crimes Committed During the Civil War from December 1989 to August 2003. Published By Authority, August 8, 2003,
  4. Supreme Court of Liberia, Decision, Bull Versus The TRUTH And Reconciliation Commission decided January 30, 2009,
  5. The Results from Beneficent Technology (Benetech) Database, an American hired company in the United States of America, which worked with the TRC Commission,
  6. The Comprehensive Peace Agreement between the Government of Liberia and The Liberians United For Reconciliation And Democracy (LURD), The Movement For Democracy In Liberia (MODEL) and Political Parties,, Accra, Ghana, 18th August 2003.

I cannot concur with my Fellow Commissioners that "Prosecution in a Court of Competent Jurisdiction and other forms of Public sanction will foster genuine reconciliation, combat impunity to promote justice, peace and security" for any person or persons whether military or civilian who committed crimes or Acts within the period covered 1980 - to the adoption of the 1986 Constitution. Article 97 (a) and (b) of the 1986 Constitution (still in force)  states:

  1. No executive, legislative, judicial or administrative action taken by the People’s Redemption Council or by any persons, whether military or civilian, in the name of that Council pursuant to any of its decrees shall be question in any proceedings whatsoever; and, accordingly, it shall not be lawful for any court or other tribunal to make any order or grant any remedy or relief in respect of any such act.
  2. No Court or other tribunal shall entertain any action whatsoever instituted against the Government of Liberia, whether before or after the coming into force of this Constitution or against any person or persons who assisted in any manner whatsoever in bringing about the change of Government on the. 12th day of April, 1980, in respect of any act or commission relating to or consequent upon:
  1. The overthrow of the government in power in Liberia before the establishment of the People’s Redemption Council (ii) The suspension of the Constitution of Liberia on July 265, 1847;
  2. The establishment, functioning and other organs established by the People’s Redemption Council;
  3. The imposition of any penalties, including the death penalty, or the Or the confiscation of any property by or under the authority of the People's Redemption Council  in pursuance of  but not limited to the measures undertaken by the Council to punish persons guilty of Crimes and Malpractice to the detriment of the Liberian Nation, the People, the Economy, or Public interest.

     iv.    The establishment of this Constitution.

I consider it relevant to quote the entire Act enacted by the Senate and the House of Representatives of the Republic of Liberia, August 7, 2003, with Executive Approval on April 8, 2003, by the President of the Republic of Liberia, Dahkpannah Dr. Charles Ghankay Taylor

Act to Grant Immunity from both Civil and Criminal Proceedings against all persons within the Jurisdiction of the Republic of Liberia from Acts or Crimes Committed during the Civil War from December 1989 to August 2003. Published Authority, August 8, 2003:

WHEREAS, the fundamental rights and dignity of the people of the Republic of Liberia were curtailed and hi-jacked by the regimes of the 1980 Coup de tat and that of the 20th President of the Republic of Liberia; and,

WHEREAS, during these regimes, tribalism and sectionalism were at its highest Peak which culminated into tribal killings mayhem and destruction; and,

WHEREAS, during these regimes, tribalism and sectionalism were at its highest Peak which culminated into tribal killings mayhem and destruction; and,

WHEREAS, as a result of these acts committed against peaceful and law abiding citizens of Liberia from devise background, Liberians begin afraid of losing their lives, exiled themselves, while others reluctantly stay in Liberia to be maimed by those repressive regimes and,

WHEREAS, a group of exiled patriotic Liberians under moral and divine obligations to liberate Liberia and Liberians from the yoke of terror, tribalism and untimely death united under the banner of the NPFL ((National Patriotic Front of Liberia) and launched a popular civil uprising welcome by more than 80% of Liberians in Liberia as exhibited by the granting of legitimate, constitutional and democratic state power to the Political wing-NPP (National Patriotic Party) and,

WHEREAS, before the Special Election of July 1997, all former warring factions; NPFL, AFL, ULIMO-K, ULIMO-J, LPC, Lofa Defense Force were engaged in a seven year old civil war; and,

WHEREAS, the Special Election of July 1997 with subsequent inauguration on August 2, 1997 marked the end of a seven year old civil war which brought into being a Government of inclusion with all former Warring Factions and

Political Parties on board; and

WHEREAS, some former contestants of July 1997 Special Elections and members of Warring Factions left the Government and exiled themselves in neighboring Countries; and,

WHEREAS, these individuals grouped into separate Warring Factions namely Liberians United for Reconciliation and Democracy (LURD), and the Movement for Democracy in Liberia (MODEL) and launched a fratricidal, ethnic and religious war against the NPP led government and the peace-loving and war-weary Liberians from August 1999 and up to present; and,

WHEREAS, these events have led to another civil war which has up rotted all Liberians, killed some, thus bring back tribal and religious hatred ; and,

WHEREAS, there is a need for total reconciliation among Liberians of all ethnic, cultural and religious backgrounds, with in and out of Liberia.

NOW THEREFORE;

It is enacted by the Senate and the House of Representatives of the Republic of Liberia in Legislature assembled:

Section I. 

That from and immediately after the passage of this Act, Immunity hereby granted from both civil and criminal proceedings against persons, Officials of Government Representatives of Warring Factions and combatants within the jurisdiction of the Republic of Liberia from all acts, and or crimes committed by them during the 13 (thirteen) years and 8 (eight) months of the civil wars covering from December 1989 to August 2003.

Section II

This Act shall take effect immediately upon the publication in hand bill.

ANY LAW TO THE CONTRARY NOTWITHSTANDING.

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I attach to my dissenting Report a photocopy of a letter dated June 29, 2009, addressed to Mr. Nathaniel Kwabo, Executive Secretary, Truth & Reconciliation Commission of Liberia, from H.E. Olubanke King-Akerele, Minister of Foreign Affairs of Liberia, informing him that there is the Act referred to above in which a certified copy of same was forwarded to him upon his request. See copy of certified copy attached marked "PB" to form a cogent part of my Dissent to the TRC of Liberia Report. This is one of the compelling reasons that I do not recommend prosecution:

The TRC did not take cognizance of this Act in its findings, determinations and recommendations for prosecution and lustration in Volume 1 and The Consolidated Final Report, Volume II of the Truth and Reconciliation Commission of Liberia, emanating from the TRC Public Hearings, etc.

The August 8, 2003 Act of the National Legislature was not repealed before the enactment of "The Act To establish the Truth And Reconciliation Commission (TRC) of Liberia." In 2005 therefore, the Act quoted herein is still in force within this Jurisdiction, The Republic of Liberia.

Recourse to the August 18th 2003, Comprehensive Peace Agreement between the Government of Liberia and LURD, MODEL and Liberian Political Parties, it was "Agreed that the parties will spare no effort to effect the scrupulous respect for and implementation of the provisions contained in the Peace Agreement, to ensure the successful establishment and consolidation of lasting peace in Liberia."

To the best of our knowledge, all parties to this Agreement have complied with the terms and conditions of this Agreement.

Article XXXIII of the CPA (ROLE OF THE INTERNATIONAL COMMUNITY), mandates that "The Parties call on ECOWAS, the UN, the African Union and the International Contact Group on Liberia (ICGL), to use their good offices and best efforts to ensure that the spirit and content of this Peace Agreement are implemented in good faith and with integrity by the Parties."

ECOWAS, the United Nations, the African Union and the International Contact Group on Liberia are witnesses to this Agreement.

We believe that the Warring Parties and some of the witnesses to the Ghana 2003 CPA Agreement were totally aware of the "ACT TO GRANT IMMUNITY FROM BOTH CIVIL AND CRIMINAL PROCEEDINGS AGAINST ALL PERSONS WITHIN THE JURISDICTION OF THE REPUBLIC OF LIBERIA FROM ACTS OR CRIMES COMMITTED DURING THE CIVIL WAR FROM DECEMBER, 1989 TO AUGUST, 2003."

ARTICLE XXXIV (AMNESTY) Of The 2003 CPA Agreement, clearly states that,

"THE NTGL shall give consideration to a recommendation for general amnesty to all persons and parties engaged or involved in military activities during the Liberian Civil Conflict that is the subject of this Agreement."

This Amnesty clause is a clear indication that the parties to the CPA Agreement opted for the Truth and Reconciliation Commission as an Alternative to a War Crime Tribunal…..to document and acknowledge a legacy of conflict and human rights violation facilitate genuine healing in the spirit of national reconciliation for Liberia.


The Liberian Truth and Reconciliation Commission emerged out of negotiated settlements in which there were no clear victors.

To grant General Amnesty in which individuals were absolved of all criminal or civil prosecution in the spirit of Reconciliation has been done in the past in Developing and developed countries around the world. Other Famous Amnesties include:

  1. The general amnesty granted by President of the United States, Andrew Johnson after the American Civil War (1861-April 9, 1865);
  2. The French amnesty of 1905;
  3. The Prussian amnesty of August 10, 1840;
  4. Napoleon’s amnesty of March 13, 1815 from which thirteen eminent persons, including Talleyrand, were exempt. The Liberia civil war began April 12, 1980 with the Coup.

The American Civil war began with that April 12, 1861 attack on Fort Sumter growing out of the slavery issue between the North and South.

Ambassador Herman Cohen, Assistant Secretary of State for African Affairs in the 1990’s said in retrospect, that "We missed an opportunity in Liberia. We did not intervene either militarily or diplomatically. A modest intervention at that point to end the fighting in Monrovia could have avoided the prolonged conflict."2.4 The Truth and Reconciliation Commission of Liberia Act, Article V Section 11 is clear and un-equivocal in that "Members of the TRC shall be persons of credibility, high integrity and honour."

I consider my nomination, selection, and appointment to be the trust and confidence of the people of Liberia, ECOWAS, and the United Nations in me.

The TRC Rules and Procedures Chapter 3. Powers and Functions sections 3.2 give Members of the Commission oversight responsibilities for the functioning of the Commission in order to maintain a balanced and comprehensive perspective of the Commission’s operations. Section 3.5 authorizes the Chairperson to preside over meetings, forums, conferences and hearings. and to undertake all other acts and exercises all authorities in consultation and with the consent of Commissioners.

The TRC Decision on prosecution and lustration is not in consonance with the Supreme Court of Liberia Decision, Bull Versus The Truth And Reconciliation Commission decided January 30, 2009. In that case, growing out of A Petition For the Writ of Prohibition, decided January 30, 2009, page 41, the Supreme held that whatever

"rules, code of conduct and operating guidelines and procedures, schedules, work plans and other policies necessary for the accomplishment of its mandate, including the conduct of research and investigations, holding of public and confidential hearings, making final determination of matters before it, recommending amnesty, making recommendations, and publishing its report" of the TRC must be in conformity with Article 20(a) of the Liberian Constitution (1986). Any such "rules, code of Conduct and operating guidelines and procedures, schedules, work plans and other policies necessary for the accomplishment of its mandate, including the conduct of research and investigations, holding of public and confidential hearings, making final determination of matters before it, recommending amnesty, making recommendation, and publishing its report" not consistent with Article 20(a) of the Liberian Constitution (1986), shall be declared unconstitutional when properly raised before this Court.

Article 20 (a) of the Liberian Constitution states that

"no person shall be deprived of life, liberty, security of the person, property, privilege or any other right except as the outcome of a hearing judgment consistent with the provisions laid down in this Constitution and in accordance with due process of law.

The Public Hearings held in the 15 (fifteen) sub- political divisions of Liberia and in the United States of America which included seven months of victims and witnesses testimonies, three months of perpetrators, thematic and institutional hearings were not held in accordance with Article VII section 26. (c) (e) (f) (h) (i) (j) (l) (p), Article VIII section 27 (i) (d) (e) Section 29 section 31 of the TRC ACT.

The TRC ACT, Article VII, Section 26 (f) clearly mandated the TRC to

"help restore the human dignity of victims and promote reconciliation by providing an opportunity for victims, witnesses, and others to give an account of the violations and abuses suffered and for perpetrators to relate their experiences, in an environment conducive to constructive interchange between victims and perpetrators."

To establish an analytical, objective, collecting data, of all the statements received by the statements takers and quantitative analysis of statements and other data about "Human Rights violation (See TRC final Consolidated Report about more information from Benetech)

The TRC Statement-taking form was designed with specific questions for the Victim/ witness to answer, whether not he or she is "willing to meet perpetrator."

In Benetech Table 12 page 44 revealed the Percentage saying "yes" to

Questions on Reconciliation, by County on ‘willing to meet Perpetrator."

 

COUNTY      PERCENTAGE

Bomi                        - 68.3

Bong                         - 68.7

Gbarpolu                  - 67.6

Grand  Bassa            - 63.0

Grand Cape Mount   - 62.5

Grand Gedeh            - 61.5

Grand Kru                 - 61.0

Lofa                           - 53.4.

Margibi                       - 50.7

Maryland                   - 61.2

Montserrado              - 62.9

Nimba                         -72.8

River Gee                     - 63.6

Rivercess                    - 56.9

Sinoe                             -53.0

 

The Statement takers by Counties from the same TRC designed statement-taking form, the question from the statement giver/ Victim was asked what do they prefer, Forgive and forget or retributive Justice,

BENETECH Table 13: Percentage of statement-Givers’ Recommendations about Reconciliation in Liberia by County given in descriptive statistics from Statements to The Liberian Truth and Reconciliation Commission by Benetech Human Rights Program dated May 13, 2009 found on page 45.Forgive and forget as compared to Retributive Justice

COUNTY PERCENTAGE

FORGIVE & FORGET RETRIBUTIVE JUSTICE

 

Bomi................                           58.5%.........................1.8

Bong                                            53.8……        ……… 2.1

GBARPOLU                               58.5………………… 1.0

GRAND Bassa                             62.0………………… 2.0

Grand Cape Mount                       36.0……… ………… 3.8

Grand Gedeh                                44.6…………………..3.0

Grand Kru                                     55.2… ……………… 2.9

Lofa                                                53.2……………… …3.2.

Margibi                                            52.0………………… 1.8

Maryland                                       59.6……………………2.0

Montserrado                                    60.5………………… 2.7

Nimba                                             7.4……………………3.4

Rivergee                                          46.2……………………5.6

Rivercess                                          39.9………………… 1.3

Sinoe                                                61.1………………… 2.0

 

The entire TRC process from the Investigative stage, the public hearings, the county regional

Section 5.1 states that "All investigations, including forensic, or otherwise, shall be conducted by the Inquiry unit of the Commission or any member of the Commission in accordance with the law including due process requirements of notice and fairness."

Section 6.3 of the TRC ACT states that: "Every person appearing before the Commission by subpoena or otherwise may appear with counsel, provided that the role of the counsel shall be restricted to legal advice and at hearing consultations only."

Section 6.8 States that "Every person artificial or natural, who is named of wrongdoing, at a public hearing, shall be afforded adequate opportunity to respond in a comprehensible and respectable manner within a reasonable time to be fixed by the Commission."

Section 6.9 Where an accused person responds to allegations, sufficient opportunity shall be afforded him or her to be present in person and to ask questions of the accuser or witness where and when the Commission deems appropriate."

RECOMMENDED WAY FORWARD

Whenever a nation is confronted with a national calamity, disastrous or predicament will claim the attention of its citizenry. Of course, their ardent desire would be to end such unfortunate development and chart new course that will bring about correction, rehabilitation and general recovery. With this, all will begin to devise ways and means how to address the problems. However as disagreement among people and divergence of view are considered as Divine norms in human creation, several ideas will be advanced; and in many cases, two schools of thought will eventually emerge. Students of one of the schools would propose rigid and strong reprimanding to be backed by a retributive justice as the just way of arresting the situation and avoiding its repetition. The students of the other would advocate a cautious approach to be accompanied by restorative justice as the best means for sustainable remedy and curement.

History remains vividly fresh of the end results of each course of action; and are worthy of reminding each and every one of us in our respective endeavors to solve our problems. The need to recall reactions of government in the past against perceived or branded rebellions against the so-called "law and order", cannot be over-emphasized. In fact, the Liberia scenario in the one and half decade of our national trials and tribulations, are worth remembering for our sober reflection and mature judgment. By the same token, we need to reflect over what has been acquired since the coming into force and effect the Accra Comprehensive Peace Agreement. If its fruits are positive and rewarding, it then behooves us, as a nation and people, to appreciate same and strive to add more laurels to their nurturing and sustainability. For, to act to the contrary will turn us into a people who have manufactured a woven factory, painstakingly commenced to spin yarn, there and then begin to unravel and break it into untwisted strands and causing same to be disintegrated into pieces.

A critical study of the preamble and in fact, the entire provisions of the TRC Act and its mother-source-CPA show that the rationale of each was never arbitrarily drawn up from space.