Ngafuah’s Action Sparks Debate…Lawyers Say Decision Was Premature

The recent resignation of President Ellen Johnson-Sirleaf’s most favored Minister of Foreign Affairs, Augustine Kpehene Ngafuan has sparked serious debates amongst legal pundits in the country with some suggesting that the former minister’s decision at this time is premature.

Since the news of Minister Ngafuan’s resignation spread, the speculation began as to the motive for his resignation. Some speculated, and this may have had the wider speculation, that Mr. Ngafuan has ambition for the presidency in the upcoming 2017 Presidential and General Elections and wanted to ensure that he was in compliance with the code of Conduct Act passed in 2014.

“The timing of Minister Ngafuan’s resignation would seem to support that speculative theory. The resignation runs almost exactly two years to the October 2017 Elections. Certainly this must have other potential unannounced aspirants rather apprehensive as debates have mounted as to who will follow Minister Ngafuan’s lead,” said one of the lawyer.

Some legal pundits say there is good reason for the jittery amongst the potential presidential aspirants who are still in government.

They said after all, the Code of Conduct, at section 5.1, requires that not only that all officials appointed by the President not engage in political activities, canvass or contest elected offices, use any government facilities or serve on any campaign team of any political party or independent candidate, but also that if they hold the position of Minister, Deputy Minister, Director-General, managing director or Superintendent and have any desire to contest any elective public office, they should resign their position at least prior to the date of the public elections which they desire to seek the elective office.

The Act states further, at section 5.2, that if the person or persons affected hold tenured positions, they must resign the position at least three years prior to the date of the elections in which they seek the elective public office. Interestingly, the Act exempts the President, Vice President, Senators and Members of the House of Representatives from its coverage.

Those debating the issue noted that the Code of Conduct Act has not gone unnoticed. “In fact, a group, terming themselves as Citizens Solidarity Council, last year filed in the Civil Law Court a Petition for Declaration Judgment asking the court to declare sections 5.1 and 5.2 of the Act unconstitutional. Our inspection of the files in the matter shows that the Petition was opposed by the Government and that the Judge, not thinking that he could rule on the constitutional issue presented, forwarded the case to the Supreme Court.

The Supreme Court records show that the Court has already heard the Petition and that the parties to the case are waiting for the Supreme Court’s decision,” said the head of one civil society organization.

According to him, when they asked some legal practitioners, who prefer to remain anonymous, about the matter and the resignation of Minister Augustine Ngafuan, they said that if the reason for Mr. Ngafuan’s resignation was to enable him to be within the time period set by the Act in order that he could contest the 2017 presidential Elections, then he acted rather prematurely and that his move was a rather stupid one.

They said that if the Supreme Court decided that the Act was unconstitutional, then Minister Ngafuan would look stupid since no Minister or other persons affected by the Act could be expected to resign, and it makes no sense for them to resign, while the Supreme Court was still considering the matter or before the Supreme Court handed down a decision.”

The lawyers argued that if the Supreme Court decided that the sections of the Code of Conduct Act that are challenged are unconstitutional, then any cabinet minister or directors general or any other tenured official could hold the office for as long as necessary until he or she declares the intention for the elected political office and is accepted by the Elections Commission as a certified and recognized candidate to the elective office.

This paper has learned, from the inspection of the court’s records, that one of the major contention of the Citizens Solidarity Council, is that the Act is discriminatory and therefore a violation of the constitution; that the Act infringes on the right of contract since it tries to have an incumbent violate a contract which he or she had with the institution with which he or she is employed.

All eyes are now on the Supreme Court which has been dealing with constitutional matters almost for as long as this President is in office. For now, all of the other incumbent, except for Minister Ngafuan, are waiting to hear what the Supreme Court says before they decide on what action to take. Lawyers feel that this is a smart and wise move and that no one should resign at this stage while the matter is still before the Supreme Court.

“If anyone resigns right now, on account of the Act whose constitutionality is still in doubt and is waiting the Supreme Court’s decision, the resigned officials cannot come back and ask to be reinstated in the event the Supreme Court decides that the Act is unconstitutional,” one lawyer argues.

The one thing the lawyers have cautioned, however, is that the Supreme Court should not be speculated on as no one knows how the Court will rule. Any officials resigning would be made to look stupid by the decision of the Court if the Act is determined to be unconstitutional. On the other hand, they would have nothing to lose by the Supreme Court declaring that the Act is constitutional and they then decide to resign because of the decision of the Court.

What is clear is that the lawmakers, who have vowed that the next President will come from the Legislature (the Senate or the House of Representatives), some of whose members are already indicating interest in the presidency of the nation, will be highly disappointed as the decision would open the field to true competition for the presidency.

What is clear also is that the Act clearly favors the Legislature over the other branches of the government, except for the president and the Vice President. The lawyers have asked: Do we want that kind of discrimination? Morrison O.G. Sayon writes.

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