NYEMAH BOAKAI SIGNS THE EXECUTIVE ORDER FOR WAR AND ECONOMIC CRIMES COURTS ARCHITECTURE A DECISIVE POST-WAR PARADIGM SHIFT Atty. Abraham Barlou Mitchell* On Thursday, May 2, 2024, the 25th President of the Republic of Liberia and third post-war constitutional leader, Joseph Nyema Boakai, crossed the redline, took the ultimate “gamble”, and signed a Presidential Executive Order – setting the basis for a legislative framework, for the establishment of the long-overdue “War and Economic Crimes Courts for post-war Liberia, after more than twenty (20) years of post-war maneuvers. If this project went through, obviously not without the support of the international community – led by the United States of America – certainly, this would become a Landmark Legacy of Nyema. The political will developed firstly to have campaigned for, and the eventual decision to take the campaign promise to its final and logical conclusion, was extra-ordinary, audacious, decisive, and above all, very unprecedented. This is a bold decision taken by a man perceived by many to have been politically weak. I don’t know why the “Joes” are wrongly perceived to be weak and referred to as “sleepy Joe”. Donald Trump refers to President Joseph I. Biden as “sleepy Joe” – when this is the man that short-circuited his constitutional term to an unbelievable “one term deal” with a decisive, frustrating defeat, and is very likely to defeat him again in November, 2024. Vladimir Putin also overlooked and dismissed President Biden as being weak, and invaded Ukraine, having earlier and successfully annexed and occupied Crimea, unchallenged by the US and NATO. “Sleepy Joe” Biden has given Putin a bloody nose in Ukraine, successfully rallied his allies –NATO – and has supported Ukraine unprecedentedly; in two years, Putin is bucked down in Ukraine, to the point of begging for support from small countries as North Korea, Iran, etc. Certainly, the recent US US$61B military package to Ukraine might not defeat Russia in Ukraine, but could certainly position Ukrainians into a position of strength for a possible negotiated settlement. And should “sleepy Joe” win in November, Russia could be very well beaten in the land of the occupied. Here at home, in Liberia, when former Vice President Joe Boakai announced his bid in 2017 for the Presidency, there was a general perception that Boakai was a “sleepy Joe”, and was dismissed as such – but the opposite was demonstrated – the “parked racing car” demonstrated strength and challenged the “indomitable Congress for Democratic Change” severely. In 2023, the “sleepy Joe” returned, with virtually no funding compared to the incumbent, and did the most unexpected – defeated the Coalition for Democratic Change, though with a slim margin, notwithstanding, tragically and humiliating, thereby also short-circuiting the Weah administration, as was with Trump in the US. It means these “Joes” are unpredictable. Coming back to the main issue under discussion, from all intents and purposes, President Boakai’s move could represent a paradigm shift, with far-reaching implications in the overall fight for “Transitional Justice”, against “impunity” in Liberia. Meanwhile, we advise that the fight against “impunity for “Transitional Justice” in post-conflict-Liberia, must be comprehensive and total, while shifting from the doctrine of “justice by restoration” to “justice by retribution”; it must significantly include the critical review and radical transformation of the overarching legal regime of Liberia, including the 1986 Constitution, that harbors preferences, however apparently silently, in favor of the culture of “impunity” against “Transitional Justice” in Liberia – constitutionally. What do I mean by this? From a legal, constitutionally scholarly perspective, I mean, in effect, the 1986 Constitution, the supreme law of Liberia, is being indicted – charged with complicity – for harboring tenants that lend the Liberian Constitution to the vulnerability and manipulations by the forces of war and bellicosity, in the fight against “Transitional Injustice” and “impunity” in Liberia. For this reason, the 1986 Constitution should be taken to court, and under the doctrine of “Due Process of Law”, to vindicate itself from the charges being levied against the supreme law of the land. In this regard, if the signing of a Presidential Law (Executive Order) for establishment of courts on “war crimes” as well as “war-related economic crimes”, such an exercise should not be about selective justice; instead, it must be about a comprehensive, total, as well as an all-inclusive approach in the fight against post-conflict “impunity” by bringing under critical review for radical transformation (not mere reform), all laws that encourage “impunity”, including the current Liberian Constitution of 1986, that is inherently compromised in respect of the pursuit of transitional justice and non-impunity in the Republic. The 1986 Constitution was produced under a military dictatorship by a military class that had developed an insatiable appetite for political power, and therefore, the Constitution it produced portrays semblances of pro-belligerence and the institutionalization of the culture of impunity by constitutional means. We must also take the ultimate decision as a post-conflict state of national renewal, to abrogate all draconian military decrees of the “People’s Redemption Council Government” of the 1980 Coup-makers – for it is an irony for a democratic constitution of a democratic state to be seen harmoniously and peacefully-co-existing, unperturbed, for almost four decades (40 years), with draconian military decrees that the very constitution was established to replace. It further means, undoubtedly, that the 1986 Constitution, a compromised legal regime, robbed of the moral rectitude to lead the general fight against “impunity” for “Transitional Justice in Liberia, finds itself in a state contradictory dilemma. In this regard, we can further safely say that the 1986 constitution is partly undemocratic and insensitive to fundamental human rights protections, both during and after armed conflicts, which have characterized politics for almost half of a century in Liberia. We can also safely say that the 1986 Constitution being partly pro-military dictatorship could become a pretext now and in the future, for the military (the new Armed Forces of Liberia) to eye and envy politics as its predecessor did – as an extension of the culture of impunity. Based on the foregoing analyses, the question is: How did we get to produce such a constitution, as the 1986 Constitution? In retrospect, the making of the 1986 Constitution faced very serious and difficult challenges under a military dictatorship that had tasted power, and was set in its own ways to hold on to power under a post-military “constitutional order”. The framers of the constitution were then obliged to bend over backwards, to appease the military, although, some of the members of the two constitution commissions were already opportunistically in bed with the military politically, with some of the members of the two Commissions serving as spies on others for the military. Appeasement – the pacification and the compromise of fundamental principles for narrow and short-lived ends, in all political situations – is very dangerous. “Appeasement” policies by 20th Century European leaders gave Adolf Hitler the time, space and strength to become the monster he became. The appeasement of the military dictatorship by the two Constitution Commissions during the making of the 1986 Constitution produced the dangerous consequences we have had to live with today in Liberia, regrettably. As the post-coup constitution-making processes went, the old Armed Forces of Liberia, under the “Peoples Redemption Council” (PRC), armed twisted the entire processes to its own advantage. For example, the military dissolved and replaced the first Constitution Commission of Amos C. Sawyer, and subjected its original constitutional draft to a bad-faith, partisan-based, and undue political overhaul, based on the arrogance of militarism. Dr. H. Boima Fahnbulleh, Jr., Professor of International Relations, and a National Security Expert, referred to the action of the military as a “butcher of the Sawyer Constitution Draft”. The second Constitution Commission (“Constitutional Advisory Assembly”), was chaired by Edward Binyah Kesselly, founder of the current Unity Party in power today – many of whose members of the Kesselly Commission were loyalists to the military, as well as partisans of the military’s “National Democratic Party of Liberia” (NPDL) of President Samuel K. Doe. Evidently, some of the members of the Binyah Kesselly Commission were elected as “senators under the NDPL” in the subsequent 1985 Election. The two Commissions, notably, did appease the military, but the Binyah Kesselly Commission went far overboard in further political appeasement of the military dictatorship, when under the pretext of review of the constitution-draft, inserted extraneous elements, including the long tenures of elected officials. Specifically, Article 97 (a-b) (i), (ii), (iii), (iv) and (v) of Chapter Xiii, “Transitional Provisions” of the 1986 Constitution, is attributed to the two Commissions, I stand to be corrected. This was part of the appeasement ploy – to make it illegal, constitutionally, the questioning of all military and political actions of the PRC, including all extra-judicial killings, etc. in a post-military-democratic society. This provision of the 1986 Constitution, in effect, does represent an institutionalization of the culture of impunity constitutionally, from all intents and purposes. As a major constitutional miscarriage of a dangerous precedence, this section of the constitution subsequently may have contributed to all other incidents of war criminality that characterized, for example, the “November 12, 1985 Johnson-Sirleah-Quiwonkpa” putsch, and the Liberian civil wars that followed. Don’t forget, the 1986 Constitution was completed by 1984, but came into effect 1986, due to the transitional process. While I do not intend to bore the readers, it is however important to appraise the public on why we argue that the 1986 Constitution has been compromised and weakened, and could be of no significant relevance in any decisive fight for transitional justice and non-impunity in post-conflict Liberia. Specifically, Article 97 of the 1986 Constitution lays bare the ploy and strengthens the thrust of my arguments. This is what Article 97 (a) and (b)(i-v) of 1986 Constitution (under Chapter XIII -Transitional Provisions) says in effect: “a) 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 questioned 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”. “b) 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 of Liberia on the 12th day of April, 1980, in respect of any act or commission relating to or consequent upon: (i) the overthrow of the government in power in Liberia before the establishment of the government of the People’s Redemption Council; (ii) the suspension of the Constitution of Liberia of July 26, 1847 ; (iii) the establishment, functioning and other organs established by the People’s Redemption Council; (iv) the imposition of any penalties, including the death penalty, or the confiscation of any property by or under the authority of the People’s Redemption Council under a decree made by that Council in pursuance of but not limited to the measures undertaken by the Council to punish persons guilty of crimes and malpractices to the detriment of the Liberian nation, the people, the economy, or the public interest; and (v) the establishment of this Constitution.” Contextually, therefore, reading from the foregoing, several factors analytically come to play: Firstly and undoubtedly, it must be established that the 1986 Constitution is legally deficient and weak, and is compromised particularly as it relates to the fight against post-conflict injustices and impunity – given the sweeping post-coup impunity and immunities for the coup makers and their military and “constitutional government”. Additionally, the Liberian Constitution established under a military dictatorship that provided no level-playing field for thorough public debates and participation, also lacks other major democratic creeds, including economic rights, recognition and protection of traditional and customary cultural rights, and many other concerns, including the overly centralized nature of the Liberian unitary state, which has made “Monrovia” the “colonial enclave” and the citadel for the consumption of virtually all state resources, to the neglect and development of the rest of the entire country. There is a “Decentralization Law” that was realized by huge financial support from the international community (UNMIL, UNDP, World Bank, etc.). The original version of the law was butchered and watered-down, and yet, its effectuation as a law is being stalled. For example, the “Ministry of Internal Affairs” by now should be transformed into a “Local Government Ministry” as per the “Local Government Act”, but there is no will for change and transformation. All of these observed deficits of the 1986 Constitution, including the unnecessary long tenures for elected officials of government (that must be addressed), make the argument or the need for a better, newer, and more democratic constitution to be impelling, for the replacement of the 1986 Constitution. In essence, what the 1986 Constitution urgently needs for addressing its colossal shortfalls is not for the endless processes of stitching and patching, but for the making of a new constitution. To continue to accommodate a constitution with huge defects, says so much about the lack of political will to reform, particularly after Liberia’s civil wars. Certainly, the call for a new constitution should not be a regime agenda, but the whole of country and an all-society national concern, including both political parties and civil society coming together as a common front for the campaign for the making of a newer, better more democratic constitution. Essentially, however, the Boakai-UP-led administration must take the lead. Under the same UP leadership of President Ellen Johnson-Sirleaf leadership, there was a feeble attempt at reforming the 1986 Constitution. That attempt to reform the Constitution under the Sirleaf Administration was led by former Attorney-General and former Chief Justice of Liberia, and former Vice National Chair of the Unity Party, Cllr. Gloria-Musu Scott, who tragically and unfortunately recently came in conflict with the law, and having been adjudged, is currently serving her sentence for a crime of high felony. The Musu-Scott Constitution Commission’s reform-drive was limited and narrow, because it sought selective reforms, than the making of a rather newer and better democratic constitution, of the sort we are calling for. In spite of that, all the propositions the Musu-Scott Commission proffered as recommendations are relegated to mere paper works. The second of the several factors that comes to play analytically is that, this particular provision of the 1986 Liberian Constitution makes it ineffective, and arguably so, to serve as a legal reliance to prosecute people accused of war and economics in the current Liberian situation. Therefore, the fight against injustice and impunity in Liberia has to go beyond fighting a few war criminal suspects, however important that is, and we must hail President Boakai for the courage and audacity for attacking the “taboo”. Within this context, no post-war leader ever developed the guts, audacity, and political will to have acted in the direction of the “parked racing car”, driven by “sleepy Joe”, perceived to be weak. We encourage the President to go one step further and two steps backward, by taking the bold steps to remove all obsolete and inconsistent laws from the books, and take the lead for the making of a post-war constitution, beyond the coup. Supporting the Law Reform Commission with extra-mandates and extra-budgets as well as the Ministry of Justice and its Codification Department to help lead these huge legal reform measures are very important. At a sitting organized by the Law Reform Commission in Ganta, Nimba County, sometime in 2023, when we converged to collectively help the Commission prepare its “2022-23 National Plan” under the Chairmanship of Hon. Cllr. Boakai Kanneh, in my presentation at that convening as Assistant Minister of Justice for Codification, I hypothesized that all statutes (subordinate laws) formulated under the 1847 Constitution, particularly those that are inconsistent with the 1986 Constitution, are obsolete and illegal, and should be prioritized for reform or abrogation. I further argued at that sitting that we cannot continue to tolerate statutes on our books, derived from the 1847 Constitution, particularly when said statutes are variously inconsistent with the constitution abrogating the old 1847 Constitution – for to do so would suggest we are dealing with both the 1847 (repealed) as well as the new 1986 Constitutions simultaneously. There are so many statutes on our books that fall in this category of laws under discussion. A law remains a law, whether obsolete or inconsistent with the existing constitution, until it is reformed and brought up-to-date, or totally repealed. Finally, let me say here that serious post-war reform and transformation in Liberia require a broad coalition of a national front, supported by all the political leaders of Liberia, as a matter of a strategic imperative. During the Weah administration, in an attempt to reform the Constitution, all counts proffered in a pre-election referendum were unanimously rejected by the electorates – and that was largely on account of the gang-up by the opposition to the referendum in a united opposition front, aimed at giving the incumbent a vote of no confidence. The constitutional reform proposals made by the Weah administration were highly reform-driven, but were out-rightly rejected. A similar scenario was earlier seen in 2011, when all the four counts proffered by the UP-Johnson-Sirleaf administration in a referendum, were also rejected as a tacit vote of no confidence in the administration – led by the opposition. In the two referenda the whole country suffered by the refusal to transform the 1986 Constitution because of mechanical and narrow opposition politics. A major lesson learned from the two referenda is that we must not attach plebiscites to General and Presidential elections. – they should be held independently, detached from General Elections, so as to reduce the anti-regime sentiments, as seen in the last two situations. Today, unity between former President Weah and President Boakai, the two most popular leaders of Liberia is vital for strengthening our democracy and for the fight for all forms of far-reaching outcomes in Liberia. I contend that former President Weah and current President Boakai are brothers – the both are victims of the system – one of a slum up-bringing, from the Southeast, and the other, a poor rural migrant-boy of the North-Western and Central, who migrated from Northern Liberia to Monrovia in search of opportunities, and by the accident of history, he ended up in the most “prestigious” high school of elitist arrogance – the College of West Africa. The both, in spite of their very difficult backgrounds and upbringings, rose from obscurity to relative prominence (from youth to adulthood) nationally and internationally, with no civil spoons in their mouths, but by their own boot strings. Boakai and Weah, the two phenomenal national characters of national stewardship, have had one major virtue in common – they both have made historic and magnanimous decisions in democratic elections, where the win or loss of elections, was a matter of “life and death”. Under those difficult circumstances, both Boakai and Weah, put the greed for personal power aside and magnanimously conceded to each other in different times of difficulty. By so doing, they both saved the country. In 2017, Vice President Boakai said when he conceded to Ambassador Weah that he did not want anybody to “use his name to spill blood” in Liberia – he then conceded, and thanked Weah for his victory. Many of us who supported Vice President Boakai at the time, including myself, did not like his move, but his was virtue and strength, and the most appropriate thing he did. In 2017, as Secretary-General, I along with other key executives of the National Democratic Coalition (NDC), including Comrades Thomas Kaydor, Nyanquoi Kargbo, Johnson Willabo, Emmitt Blayee (Youth leader), etc., led the campaign for former Vice President Boakai within the NDC, and his subsequent overwhelming endorsement by and at the NDC 2016 Benthol Convention, leading to the 2017 Elections. Certainly, 2023 cannot be isolated and delinked from 2017, albeit, they are two distinct situations. The history is long but short. On the other hand, in a very tight race that the incumbent could have contested and gambled through the use the Supreme Court to resolve post-elections conflicts, President Weah unprecedentedly conceded defeat, when the final vote counts of those elections were not yet concluded, and when the final pronouncement, were yet to be made by the constitutional authorities of the National Elections Commission. As an incumbent, and with all the incumbent advantages, Weah’s manner of concession was historic and unprecedented in Africa– the contrary could have very possibly cracked the “peace”, and who knows, Liberia might have possibly slipped into post-election chaos – possibly resembling the Gambian situation under Yahya Abdul-Aziz Jammeh, in which situation, ECOWAS threatened to intervene. In the two incidents the two most popular leaders of Liberia today (of the UP and CDC), by their actions of self-less and magnanimous stewardship, raised Liberia’s profile regionally and internationally as a successful post-conflict country irreversibly on the path of democracy, thereby building global confidence that Liberia is stable for genuine partnership, long-term foreign investments, for economic growth and prosperity. The courage and the strong will demonstrated by both men at two separate critical post-conflict intervals of transitions – former President Weah, on the one hand, and now the 25th President of Liberia, on the other, did what neither President Samuel K. Doe, nor Charles Taylor and all war lords, had the strength and courage to do, the consequence of which was the destruction of Liberia in prolonged fourteen years of bloodbaths. Both Taylor and Doe demonstrated intransigence and the cling to power, when they both could have conceded when there were sufficient moments to doing so, and save the country – but what happened eventually, they both exited power by force and tragically. Their stories are well known to the Liberian people and the world at large – theirs has become the history of tragedy and vanity! In similar related development to Doe and Taylor, when President Sirleaf felt her second bid for the presidency was threatened, she went to the extreme, and as a woman of belligerence, she sent armed state security forces, with a shoot-to-kill mandate, to the headquarters of the Congress for Democratic Change; blood was spilled and a death occurred, following the failed attempt to eliminate Ambassadors Winston Tubman and George Manneh Weah, Standard Bearer and Vice Standard Bearer, respectively, of the CDC. The National Democratic Coalition Standard Bearer, Professor Dew Tuah-Wleh Mayson was one of those that escaped the state-sponsored terror of Africa’s first female president, indicted for war and economic crimes by the Truth and Reconciliation Commission. It is the virtues of Weah and Boakai, distinct from Doe, Taylor and Sirleaf, that we emulate here, politics aside. These are the two principal political leaders that Liberia relies on to hold the country, and to advance strategic national development, for consolidating the peace. For example, when President Boakai threatens the “Western Cluster”, a criminal cartel, with closure because of major contractual breach, he needs the support of Weah, Brother Alexander Cummings, and all others in the opposition, including the whole of civil society, and all of Liberia for support; to fight foreign corporations involved in “extractive plunder”, economic exploitation and dominance – is a very serious matter, because these rapacious foreign corporations respond to national threats with viciousness, including steering up instability, sometimes using the opposition against the incumbent. It is these foreign corporations that instigate the military to oust civilian democratic regimes, when their super profit interests are threatened. The evidence of this is plenty all over Africa, including the recent coup in neighborly Guinea. A broad national unity of collective purpose is the best way we can effectively check foreign criminal cartels, engaged in extractive plunder in Liberia, based on very bad, one-sided, unjust and unconscionable contracts of multibillion dollars dimensions, with very long tenures, ranging from 25, 65, and 99 years, imposed on the Republic, by the self-same Republic, via despicable “Mineral Development Concession Deals”, orchestrated by functionaries of the Republic. I have researched and critically reviewed many of the natural resource “Concession Agreements” of Liberia with foreign corporations (Transnational and Multinational Capitals) as a book project in progress, including those of “Western Cluster”, Golden Veroleum, Putu, Mittal Steel, China Union, etc., and I tell you – the outcomes of the reviews are tragically revealing, very telling, and dreadfully annoying. All of the contracts (“Mineral Development Concession Agreements”) legislated into law, based on concurrences of the two Houses, and finally signed into Law by the President, were not orchestrated by mistakes – they are deliberate, and were based on an obsolete law of 1956 (CONCESSION). The Concession law is inherently inconsistent with Article 7 of the 1986 Constitution; arithmetically, today, the “General Business Law (including Investment Incentive Code) – Title 14 – Liberian Code of Laws Revised, 1956, Section 6.1” that provides for and defines “Concession Contract law”, is 38 years older than the 1986 Constitution; the latter draws its legal legitimacy from the 1847 Constitution, which has been abrogated. “Concession”, which the Government of Liberia exclusively relies on for all of its mineral, agricultural, fishery and other contractual business deals with foreign corporations is inherently “individualistic”, “monopolistic”, and above all, within the Liberian context, does not provide for partnership and share-holding for Liberians. Whereas, there are other better and prudent contracts, including “Public Private Partnership” (PPP), that allow for “Joint Ventures” and share-holding. “Concession” as a form of contract is not only obsolete, it is very unprogressive, unjust and exclusively benefits only the foreign corporations, against the immediate, medium and long-terms strategic interests of the Republic, as is being demonstrably shown in Liberia since the 1920s and 1950s. This is what a US Ambassador , Her Excellency Deborah Malac, May 2015, had to say about “Concession”: “I know Liberians tend to think of ‘concessions’ as the one model for foreign investment, but that model is increasingly outdated”. I cannot imagine, and it is inconceivable to see, that all the “concession Contracts” between the Government of Liberia and foreign corporations since 1926 to current (including those of post-war Liberia), are outrageous. “Concession Contracts” are not only based on very long “Terms”, but they give “Exclusive Rights” to foreign “Concessionaires” to “Explore for minerals”, in the proposed “Concession Areas”, without a Government “third Party” involvement to protect the interest of the Republic in the processes of exploration . Accordingly, “exploration” sets the basis and is key for a just contractual negotiation, in that it is during “exploration” that the actual “commercial quantity and quality” of a particular mineral of interest is determined. In all “Concession Mineral Development Deals” offered by the Liberian State adopts a disclaimer in all rights to “exploration” and other areas of the “Agreements” In the case of plantations – rubber and oil palm – the “Concession Agreements” are similar; here, the key issue is land grab. The plantation companies (“Concessionaires) are given the right by the “Agreements” to go anywhere in Liberia, without prior consultations with traditional people, to grab land of their exclusive choosing – the entire exercises are characterized by abuses – abuse of the traditional people customs, traditions, destruction of the cultural shrines, and many others. Firestone took the whole of Margibi County virtually – One million acres of land at 6 cents per acre (1926), and grabbed an additional thirty-seven thousand (37,000 acres), after the Civil Wars (at 50 cents), during the National Transitional Government –NTGL- when Disarmament, Demobilization, Rehabilitation and Reintegration (DDRR) had not taken place, and Liberians (prime land custodians) as IDPs and refugees, had not returned to their lands. That meant the NTGL was in a very weak position to have effectively negotiated such a deal (1, 000, 037, 00). Similarly, Goldern Veroleum has grabbed “approximately 350, 000 hectares of land” in Maryland, Grand Kru, Sinoe, River Cess and River Gee, referred to as “Gross Concession Area”, and is targeting more land for “expansion”. These vital information are acquired from the “Concession Contracts” under review. It is the same “concessionaires” (owners of foreign corporations) “granted exclusive rights” of “exploration” without government’s involvement, that are the very ones that give “advice to Government” about the “commercial quantity and quality” of minerals discovered, and said to be deposited is said “Concession Areas”. At the same time, the same company “granted exclusive rights of exploration” are also the identical people “granted License A” by the Government of Liberia (through the Ministry of Lands and Mines), to “Exclusively Exploit” and “Exclusively Market” or “sell” the said mineral(s) on the world market on an annual basis – all of this to the “Exclusion” of the Republic in all said ”Concession Agreements”. By such “Arrangements”, the Republic “excludes” itself from all aspects of operations and ownerships – meaning the Republic is not part of “Exploration”, “Exploitation” or extraction, “Marketing” and the “Sale” of the minerals extracted from Liberia, to be sold on the world market. Worst still, there are no provisions provided in such “agreements” for processing or manufacturing, where feasible. If any such provision(s) for processing (as in the case of Golden Veroleum) are provided, the “Agreements” give the “Concessionaires” the right to study and make the determination, and “provide advice to Government”, whether or not it is feasible to manufacture. In effect, the Republic eventually “owns no share(s)”, has no “share-holding standings”, and does not share in any and all of the profits acquired from the actual cumulative multibillion dollars values of the natural resources exploited. This is what all “Concession Contracts” belonging to all foreign corporations entail, without any exceptions. Whereas, it is the Republic, in actual fact, that is the “exclusive” owner of the land and waters, and all natural resources beneath them (Gold, Diamond, Iron, Sand, Rocks, Oil, Fisheries, etc.), in accordance with the supreme law of the land – the Constitution. Such “Concession Agreements”, notably, enacted into law, do not only represent gross criminal dereliction of duty on the part of the entire Liberian State and Government, but signify a suicidal giveaway of the nation’s wealth to foreigners, virtually for nothing, at the peril of the country. This is what has been happening in Liberia economically since 1926 or before, and that is why, the national economy of so-called multi-billion dollars of foreign direct investments value, cannot raise a single US$B FY Budget for the Government of Liberia, in order to be capacitated to develop the country – to build roads and other infrastructure, Science and Technology, to invest in agriculture, tourism, education, health, housing, electricity, water and sanitation, etc. What does the state get in returns in these callous “Concession Agreements”? Mere royalties – fees, ignominiously referred to as “taxes”, which boil down to nothing but “BS”. Apart from these criminal defaults, the foreign concessionaires are also granted “huge tax holidays” and “duty-free privileges” by the State. These are similar “Terms of Agreement” Firestone-Liberia has been operating in Liberia, since 1920s, as the oldest and largest investment in Liberia. Firestone will be 100 years old in 2026 (in two years’ time) In Liberia, with not a single plastic factory; whereas, rubber from Liberia is being used to help build rubber factories in South Africa, Cameroon, Kenya, the United States and elsewhere, as research records have shown. The rest of the foreign corporations have followed suit since the 1920s, including the Liberia Mining Company (LMC), the first iron ore company in Liberia – followed by the Liberia-American-Swedish Corporation (LAMCO), Bong Mining Company, Liberia Agricultural Company (LAC), etc., since the 1950s. In all the counties these mineral resource extraction foreign corporations have operated, all that you see is abject poverty, environmental degradation, infrastructural deficits, poverty and hunger – Bomi, Nimba, Lower Bong, Margibi, Bassa, etc. The post-war companies following similar patterns – Mittal Steel, Golden Veroleum, China Union, Western Cluster, CHICHO, and the rest of the criminal cartels. Enough is enough – it is time for action. All the foregoing contracts given to all foreign corporations must be adjusted to give the Republic its legitimate SHARES. Importantly, there are laws on the books, both local and internationally, for remedy so as to change these tragically bad “Concession Contracts”. Thus, when we talk about constituting courts for “Economic Crimes”, are we also taking into consideration these categories of enterprises and the economic crimes and injustices they perpetrate in Liberia? Not because foreign concession contracts are “legal” make them untouchable. In conclusion, we therefore encourage President Boakai and former President Weah to forge ahead and work together. We also encourage other opposition leaders, including Brother Alexander B. Cummings and the rest, to join the fight against economic injustices, by paying serious attention to the national economy and for proper natural resource management. We must all, together, in a united front give serious attention to existing bad, one-sided, unequal and unconscionable “Mineral Development Deals”, signed by previous governments, and imposed on the Republic. I reiterate there are legal avenues and remedies for redress – it only requires the political will to act. For example, when Article 25 of the Liberian Constitution obliges the Republic to “guarantee” and uphold the sanctity of “contract”, and that ”no laws shall be passed which might impair this right”, it was never the presumption of the Constitution and its framers that “contracts” entered into by the Republic would be so despicably and outrageously unconscionable as in the case of all “Concession Contracts” of Liberia. Additionally, it was never the contemplation that the Republic would enter into multi-billion “Concession Mineral Development Agreements” with all foreign corporations, and does so against itself, which is what all these so-called “contracts” manifest. And it does not matter, whether the heartlessness of these “Agreements” signed into law, and discovered after 100 years cannot be debunked by a new generation of national leaders. For the issue of ”Statutes of Limitations” is inapplicable here – meaning that the Government of Liberia, for example, can call for the review and adjustment of the “Contract of Firestone-Liberia of 1926”, the oldest and largest “foreign investment in Liberia” – that historically set the basis of “extractive plunder”. The Government of Liberia can do similar thing to all other bad-faith state-sponsored contracts, possibly including those that have expired. I contend, and it further means that any “contract” be it of Firestone, LAC, Mittal Steel, Golden Veroleum, Western Cluster, China Union, etc. found to be unjust, unequal, unconscionable, and one-sided, as described within the context of “Concession Contract Law” of 1956 that contravene the 1986 Constitution (as in the case of “Article 7”), such contracts can logically and factually be considered “Null and Void Ab Initio” – meaning that such contract(s) are considered invalid from the time they came into existence and were signed into law. For the Liberian State could be right to invoke the International Law of “Clausula Rebus Sic Stantibus”, a principle of International Law that allows a state to refuse to “fulfill its obligations” regarding a “contract”, in case of a fundamental change of national “circumstances” (Britannica). This principle of International Law is the opposite of another principle of International Law, referred to as “PactAaSunt Survanda”, a principle in International “Contract Law” as in the case of Article 25 of the 1986 Constitution that “says obligations created in terms of an agreement must be honoured; therefore parties who enter into contractual agreements with the relevant intention are obliged to respect the agreement” (Britannica). Article 7 of the 1986 Constitution as well as the International Law “Clausula Rebus Sic Stantibus”, can be used for the fight, including many other legal frameworks (local and international). Therefore, the fight against “impunity” for “transitional justice” in Liberia should include reviews and adjustments of all multibillion dollars contracts involving natural resources, the land, agriculture and fisheries, etc. On the other hand, by the use of “retributive justice”(prosecution of suspected war criminals), we should simultaneously involve “restorative justice” – to include reconciliation, memorialization, and above all, reparation for our poor people – perpetual victims of wars, foreign extractive plunder, land-grabbing, environmental degradation, and the violation of fundamental human rights, associated with bad business practices, condemned by the United Nations. What we seek here is not the extreme – expropriation of the expropriated (nationalization of foreign corporations’ assets and “properties”) – despite their unjustness. Rather, we are calling for a renegotiation of the Transnational and Multinational Corporations “Concession Agreements” so that the Republic become share-holder in all aspects of production and marketing of the natural resources of our country by foreign corporations. This is a matter that requires a constructive engagement approach for a “win-win deal”. This is the key to salvation in Liberia – a paradigm shift required. Thank you *Atty. Abraham Barlou Mitchell has had twelve (12) years of cumulative experience as a practicing Lawyer – an emerging Legal Research Scholar of Liberia, also with vast expertise in matters of National Security, Public Policy Formulation as well as Law Reform.

By The Analyst News On May 22, 2024 90