Whistleblower Liberia

Whistleblower Liberia

OPINION: Why Lawmakers Cannot Be Arrested, Detained, Prosecuted, And Tried

By: James N. Jensen
jjensen945@gmail.com

The Congress for Democratic Change government of Liberia under George Weah through its National Security Agency (NSA), recently invited a Liberian lawmaker from Lofa County, Francis Sakila Nyumalin to answer to an opinion the government seems to describe as treason, a breach of the peace, or felony. The opinion expressed, “if the seat of newly elected Senator, Brownie J. Samukai is declared vacant, all other elected positions to include President will be declared vacant and that will begin the process of negotiating for an interim government.” This lettering is examining whether an opinion expressed by a sitting lawmaker shows intent to overthrow a government to which an arrest, detention, prosecution, or trial can be effected or whether a member of the Legislature, in general, can be arrested why serving the country?

Foundationally, it is important to emphasize that the constitutional framers of Liberia’s Republic created the Legislature and protected members of that branch of government from arbitrary arrests, detentions, prosecutions, and trials in the exercise of their functions. They mandated, “No member of the Senate or House of Representatives shall be arrested, detained, prosecuted, or tried as a result of opinions expressed or votes cast in the exercise of the functions of his office. Members shall be privileged from arrests while attending, going to, or returning from sessions of the Legislature, except for treason, felony, or breach of the peace. All official acts done or performed and all statements made in the Chambers of the Legislature shall be privileged, and no Legislator shall be held accountable or punished, therefore.” Article 42, 1986 constitution, Republic of Liberia

INTENTLY LOOKING AT ARTICLE 42

This endowed provision of the constitution is compressed and an intent look at key phrases and words matters in understanding the interpretative meaning of the framers’ voices in article 42. Like, this writing seeks to discover the intent of the framers, the meaning of “opinions expressed,” “privileged from arrest while going to sessions, and returning from sessions,” “privileged acts done or performed and all statements made in the chambers.”  

Firstly, what is the intent of the framers in article 42? Likely, there are no purposeful ambiguities in the provision above. It clearly presents the framers’ strong will to protect members of the first branch, the Legislature in a clear sentence. And the purpose is to protect them from the Executive Branch of government, the Judiciary, and all others who may get offended for opinions expressed or votes cast in the performance of their functions or duties as elected legislators. With emphasis, the framers strongly knew that the Executive controlling the guns and money could use its powers to intimidate members of the first branch to work at its will and pleasure. Hence, the forewarnings of the framers, “No member of the Senate or House of Representatives shall be arrested, detained, prosecuted or tried as a result of opinions expressed or votes cast in the exercise of the functions of his office,” was written toguarantee good governance and promote an open democracy. So, keenly, we underscored opinion expressed, vote cast, and exercise of functions of the office.

Protecting OPINIONS EXPRESSED; the constitutional framers of Liberia’s democracy undeniably guaranteed opinions expressed. For that, they wrote, “every person shall have the right to freedom of expression, being fully responsible for the abuse thereof. This right shall not be curtailed, restricted or enjoined by government save during an emergency declared in accordance with this Constitution.” It further says, “The right encompasses the right to hold opinions without interference and the right to knowledge. It includes freedom of speech and of the press, etc. In a stronger voice, the framers directed that “In pursuance of this right, there shall be no limitation on the public rights to be informed about the government and its functionaries.  Article 15, (a)(b) &(c), Liberian Constitution, 1986

Consequentially, with these strong constitutional words, we asked, is Representative Nyumalin’s opinion expressed, “if the seat of newly elected Senator, Brownie J. Samukai is declared vacant, all other elected positions to include president will be declared vacant and that will begin the process of negotiating for an interim government,” an act of treason, breach of the peach, felony, or abuse of free speech for which he should be arrested, detained, prosecuted, or tried?

Very likely not, the opinion expressed is protected by the constitution of Liberia and it should be without interference by the Executive as stated in article fifteen. Likely, the statement is purely a political statement. However, assuming an abuse occurs, the remedy is not an interference by the National Security Agency, but the House itself.

The meaning of “IN THE EXERCISE, and OF HIS OFFICE;” The phraseology, in the exercise, and of his office”is indicative that a member of the House or Senate is a master of his or her own conduct, and may or disregards the counsel of others as he or she performs duties assigned by the constitution of Liberia. The exercise of his office is conclusively unambiguous to the point that any Liberian who meets the requirements and elected to the office of Representative, or Senator and inducted; from the period of induction to the end of the elected six or nine years respectively, opinions expressed or votes cast is privileged, and no arrest, detention, prosecution, or trial can be, therefore. Further, it is clear that “in the exercise of his office” is not limited to physical presence in the Capitol Building, the chambers or in session. An elected Lawmaker has a conferred title protected for the term of his or her election. He or she does not take off the title while visiting any public or private places for possible arrest. A lawmaker is a Lawmaker even when he or she is at his or her residence and at rest. This is why conscious decisions must be made always by electorates as to who become Representatives and Senators for Liberia because it is a position of honor and respect.

“WHILE ATTENDING, GOING TO OR RETURNING FROM SESSIONS;” Again, in article Forty-two, the prefatory sentence reveals these phrases: while attending sessions,” “while going to sessions,” or “while returning from sessions.” These phrases reveal a significant fare-reading of a mandate from the framers. The mandate directs explicitly a privilege from arrest, detention, prosecution, and trial of Representatives for opinions expressed and votes cast. In these phraseological expressions, it’s realized that the daily movements of Representatives and Senators are protected from any security or sheriff’s arrests and by extension their staffers too; the exceptional gap is, when they are at home. But even with that, they are protected under privacy law. So, clearly, the framers’ intentional privileges for Legislators for the six-year, and nine-year are safeguarded. The pragmatic truth for possible places of arrest, like the Capitol Building and the streets, are all protected. State securities cannot arrest them in their homes, not in the streets, and at the Capitol Building, the weight of the framers’ voices is state securities are constitutionally barred from arresting any legislator why ‘attending,’ ‘going to’ or ‘returning from’ sessions.
The rationale for this purposeful privileged doctrine is to protect legislators to ensure that the constitutionally assigned duties are performed and discretionary duties are done independently without fear of outside interference.
Truly so, duties like “providing for the security of the Republic; the common defense, declaring war and authorizing the Executive to conclude peace; to raise and support the Armed Forces of the Republic, and make appropriations provided that no appropriation of money for that use shall be for a longer-term then one year; and to make rules for the governance of the Armed Forces of the Republic,” are few amongst many dutiful acts assigned that need no interference as provided for under the constitution. They are not to be sued for all actions taken in the province of their legislative workings and those privileges also extend to the staffers of the Legislators.
Article 34, Liberian constitution, 1986

Understanding PRIVILEGED ACTS DONE OR PERFORMED AND ALL STATEMENTS; it is written, “All official acts done or performed, and all statements made in the Chambers of the Legislature shall be privileged, and no Legislator shall be held accountable, or punished therefor.” Article 42, the constitution of Liberia, 1986

Keenly, it is very important to highlight that the framers are speaking of three privileged actions that include all official acts doneall official acts performed and all statements made in the Chambers. By law, none of these acts by a sitting lawmaker, amount to an arrest, detention, prosecution, or trial.
Intently looking at the provision, the two letter-word “or,” is a conjunction. “According to the Cambridge dictionary, it is conjunction that connects two possibilities or alternatives; it connects words, phrases and clauses which are the same grammatical type. In this case, the phrase “all official acts done” refers to discretionary duties completed as the result of official title, “member of the House or Senate.” This is reasonably connected with the verbal word, “performed,” an alternative is official acts required by law for a member of the House or the Senate to perform. It is an alternative to duties expected to be done. The framers being very conscious, and desirous to protect lawmakers, connected the two kinds of duties to a third, “statements made in the chambers” as privileged for members of the Legislature. That is, No member of the House of Representatives or the Senate is to be arrested for a discretionary duty done or any duty by law performed and any statement made in the chambers of the Legislature. The people’s Representatives when elected are privileged at all times until a constitutional amendment. It is not whether we like them or not, this is the law. 
Further, the conjunction “and” between all official acts done or performed,” and “all statements made in the chambers of the Legislature,” are two distinct actions. The first is any, “actions done or performed,” anywhere and not necessarily in the chambers as to the second, “statements made.” Assuming the framers wanted to restrict the privileges of official acts done or performed and the statements, all to the chambers of the Legislature, the drafters would have written law like; All official acts done, performed or statements made in the chambers of the Legislature, and not the former.

The EXCEPTIONS OF THE PRIVILEGES TREASON, BREACH OF THE PEACE AND FELONY; Under the doctrine of separation of powers, the Legislative branch is the only institution that regulates itself and regulates the two order branches of government as provided for under the constitution of Liberia. In the event of the privilege exceptions; like treason, breach of the peace and felony. Good governance necessitates the Executive Branch to present the facts to the Speaker and members of the House of Representatives or The President pro-tempore and members of the Senate for self-regulatory action against its own without fear or favor against any of its members. Either House whose member may be involved in any of the exceptions, a committee is usually best constituted for an investigation. If from a due process investigation, evidence corroborates otherwise with an allegation from the Executive, the constituted committee would report to the full plenary, and the plenary would determine a decision of the cause established and with the concurrence of two-thirds of the entire membership a House concerned, under its adopted rules of procedure can enforce an order by expelling, suspending or warning a member. In an event of an expulsion, the veil of legislative privileges or immunities is removed, thereafter, any executive action could be appropriate in law, but, until then the contrary is notwithstanding.

Further, emphases are placed that no person is guilty of an offense under Liberian laws unless he or she acts purposely, knowingly, recklessly, or negligently as the law may require, with respect to each material element of the offense, like a felony, Treason, or breach of the peach.  Hence, one would wonder how the opinion expressed by Representative Nyumalin certifies any of the elements of these high constitutional crimes, the exceptions of the privileges when the House of Representatives that regulates itself has not formally acted to perform what the constitution requires of them, assuming the accusation levied against one of its own is true? Truly, Liberia must be governed by laws and not men; the expressed opinion is what can be described as a mere political statement.     

Concluding, the prohibitory words in article forty-two of the constitution of Liberia and other powerful provisions regarding the expression of opinions by Lawmakers while exercising the duties of the office elected must be respected by the presidents of Liberia, the Judiciary Branch, and all others to include their agents like the National Security Agency (NSA). The framers’ mandate expresses a strong desire to protect discretionary duties done and performed by all elected members of the House and Senate. And with particularity, this writing calls on the government to ignore and submit to the framers’ command by respecting the laws and by restoring the dignity of Lofa County Representative, Francis Sakila Nyumalin. Further, this writing notes that if the expressed opinion of the Representative is one of the exceptions to the privileges, good governance dictates that such matter be presented to Members of the House of Representatives of which he is a fellow for action and not the National Security Agency, a creature of that body whose activities Representative Francis Sakila Nyumalin has an oversight. Lastly, the conjunction “if” used in the expressed opinion of the Representative is a conditionality of statement in its entirety, likely circumventing any intent to have committed any constitutional high crime.

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