Presidential Immunity: Who Are Those Immune and Who Are Not? By Frederick A.B. Jayweh, Esq.

In African
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Recently amongst Western and African leaders in political and legal circles, presidential immunity or absolute protection of a sitting and former presidents has become a critical issue for discussion and relentless debate. The question is whether, the official as well as unofficial actions of a president (both elected and unelected) are constitutionally immune and protected from judicial review?

Arguments for Immunity

On the one hand, many Western and African political leaders have argued and are claiming that for a nations’ President to have the power to successfully conduct the affairs of his or her country, he/she must have absolute and presumptive immunity. In exercising the duties and responsibilities of his/her office, the President of a country needs to have restricted, unlimited, and absolute immunity from all civil and criminal litigations. The successful conduct of the office of the presidency requires presidential privilege and absolute immunity. In keeping within the scope and limitation of his/ her authority and office, a President needs not be under any apprehension pertaining to the motive that controls his/her official or unofficial actions and inactions while in office and administering the affairs of the State.

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When acting as the President, the conduct of a president needs not and should never become the subject of judicial review, or any form of litigation prosecuted before and at any court. Any attempt to question the actions or inactions of a President will cripple the proper and effective administration of the State. To have the judiciary to review and adjudicate the official or unofficial actions of a President is unlawful under the constitutional system of governance.  Hence, a president needs not and must never become restrained by any law, or he/he be made accountable to anyone or courts of his country to answer to any civil or criminal action for his/her official and unofficial actions while administering the affairs of the State.

To act otherwise will certainly amount to a flagrant violation of the constitution of the state or nation. Presumptive or absolute immunity is representative of good governance in any aspect of the state.  Those in support of absolute presidential immunity contend that constitutionally, the legislative, judicial, and executive branches of a sitting government are constitutionally independent and should always remain independent of each other and on all occasions. Thus, the actions of current and former presidents cannot be questioned by any court. Spalding v. Vilas (1869), Clinton v. Jones, Nixon v. Fitzgerald (1982), and Article 61(a) of the Liberian Constitution, (1986) Constitution of the Republic of Liberia.

Arguments against Immunity

While many people believe in absolute presidential immunity and they may relentlessly and firmly so, notwithstanding, this issue has always been, and remains, contentious because there are also many constitutional scholars who believe in a doctrine of limited presidential power and control in a nation. Historically, presidential privilege has conflicted with the doctrine of separate but equal distribution of powers amongst the legislative, judicial, executive, and judicial branches of government. Those who believe in and support the doctrine of the separation of powers have argued that the powers of the legislative, executive, and judicial branches of a government constitutionally are separated but must remain coordinated and distributed equally amongst the three branches of every sitting and elected government.

Anything short of this shall woefully and unlawfully amount to the abuse of power by a President, whether a sitting or former President.  Advocates of limited and restricted presidential power, restricted privilege and supervised and regulated actions of former and current presidents,  argue that while the Constitution distributes and diffuses powers amongst the legislative, executive, and judicial branches of a nation’s government to better secure liberty and justice and equality before the law, it also commands coordination and interdependence amongst the three separate but equal branches of government for the purpose of equal justice, proper and better governance to uphold and ensure obedience to the Rule of Law.

The doctrine of separation of powers conflicts with the granting of absolute and unrestricted powers to a President.  Allowing a president to have absolute power, unrestricted privilege, and immunity could conflict with the provision of equal justice, the development of the rule of law, and human rights in any developed and developing society.  It could be a troubling and terrifying environment if unrestricted and unchecked powers were to be granted to a former or sitting President. Therefore, there must always be checks and balances on the powers of a President regardless of whether he/she is a president of the Western World or in the troubled environment of Africa.  The president and all government officials must also be subjected to the same laws that are applied to the citizens and resident of his homeland. This and by holding a sitting and former President to by judicial review account, will always avoid national confusion and anarchy.

Since granting unlimited and unchecked powers to a president cannot be accounted for and sustained under the doctrine of the separation of powers, there is no precedent for such occurrence.  Some argue that to compel a current or former president to appear before a court to account for his/her unofficial and unlawful actions might appear to leave a nation and its executive branch of government without a president.  Nevertheless, it is and remains the power and province of the courts to conduct judicial review or say what the law is.  Therefore, the legislative, executive, and judicial branches of a government must always act as checks and balances on the powers of a former or sitting president. Anything short of this is equal to asking a nation, Western or African, to place its president above the law, equal justice, and the respect for human rights. Marbury v. Madison (1803), Baker v. Carr, Youngstown Sheet, Tube Co v. Sawyer, Article III, Sections, I and II, P15, and the 1986 Constitution of the Republic of Liberia, Articles 65 and 66.

The Claim of Immunity

Whether or not a current or former president should be granted absolute and unlimited presidential powers can be certainly reviewed and treated under two distinct cases: US Congress v. George W.  Bush, former President of the United States of America, and Charles G. Bryan, et al v. The Republic of Liberia. These two cases, though factually and significantly different, they both highlight the same question whether a president should be granted absolute presidential powers to administer the affairs of the State.

In Washington, D.C., and during the Gorge Walker Bush’s era, the United States Congress issued two separate subpoenas for some of President George W. Bush’s advisors to appear and testify under oath before Congress about their knowledge of how and why the services of eight United States attorneys were terminated and their positions subsequently. Additionally, a subpoena was issued demanding that these advisors produce written documents about this issue. In law, these subpoenas are known as Subpoena “ad testificandum, and Subpoena discus tecum”—- a subpoena that always orders a witness to appear and to testify relative to his certain knowledge about a particular matter pending before a court or an administrative body, and a subpoena demands and orders a witness to produce certain written documents, books and papers that pertain to a particular case pending before court and held under his or control and in his/her custody. The foregoing subpoenas when issued, must be swiftly answered to and obeyed.

With these two subpoenas, Congress was determined to establish whether the eight United States attorneys were fired for political reasons.  If so, Congress wanted to determine whether a crime was committed and who committed it. To date, the Bush-led administration openly refused and embraced the doctrine of presidential immunity and constitutional protection to shield itself from any judicial review or legislative adjudication. Under this doctrine, all matters discussed and resolved by the United States’ President and his advisors are constitutionally immune and protected under the Constitution of the United States of America. As such, discussions, conclusions, and holdings reached by the President and his advisors shall not and are never to be disclosed, not even to the legislative or judicial branch of government or to the American public. The Bush-led administration claimed that all discussions, communications, and deliberations of the President of the United States of America, enjoy presumptive and absolute presidential immunity and that constitutionally— legally, there is nothing left to be discussed and debated.

The battle as to whether President George W. Bush’s advisors should have appeared and testified under oath before Congress about the propriety or impropriety of the firing of the eight United States Attorneys remained debated by both the Bush’s administration and the United States Congress.  Should a president enjoy absolute immunity and unrestricted protection from judicial review for his unlawful actions?  And if so, may his/her official and unofficial actions or inactions be absolutely and perpetually protected?

Precisely this form and type of questioning, equally applies to Africa and the people of Africa. The Bush’s Administration argued that the firing of the eight U.S. Attorneys questioned by the United States Congress done by Office of the Attorney General of the United States of America, is an action of the President of the United States.  As such, this action, regardless of whether it is acceptable to and by Congress or not cannot be brought into questioning by the judicial or legislative branch of the United State Government.  President George W. Bush-led administration claimed that their actions were protected both statutorily and under the US Constitution. Article II, Section 1 of the Constitution of the United States of American, PP 11, United States v. Nixon, 418 U.S. 683 (1974), and Chemerinsky: Constitutional Law, PP.240-245.

In Monrovia, Liberia, the arrest, and desire to prosecute Mr. Charles G. Bryant former interim President of Liberia and his associates for supposedly committing economic sabotage and property theft raises similar claim and issue. Mr. Charles G. Bryant was the selected interim Chairman of the Transitional Government of Liberia from 2003 to 2005. As stated in the Liberian government’s arresting orders and indictment, while serving as the chairman of the transitional government of Liberia, Mr. Charles G. Bryant and his associates purportedly stole and converted a little over US$1,000,000 from the coffers of the Republic to their personal use and personal benefit. For this alleged act, Mr. Bryant and his colleagues were charged, arrested, indicted, and brought before Criminal Court “C” to be prosecuted for Economic Sabotage—a violation of Liberia’s Penal Code, § 15.80. Fraud on the internal revenue of Liberia, Title 26.

To the following charge and subsequent indictment, Mr. Bryant claims presidential privilege and absolute immunity from arrest, indictment and trial. According to him, since he was the President of Liberia at the time of the infraction, no court has the power to prosecute or question him. In his petition to prohibit the Government of Liberia from prosecuting him, Mr. Bryant confessed to taking the money; however, he contended that at the time, he had presidential privilege and constitutional immunity. As such, the Government didn’t have the authority to prosecute him.  Mr. Bryant argued then that all his actions from 2003 to 2005 were protected under Article 61 of the Constitution of Liberia. Thus, he couldn’t be arrested, charged, or prosecuted by the Courts of Liberia because he enjoyed absolute immunity and protection.

There is a significant difference between President George W. Bush of the United States of America and Mr. Charles G. Bryant of the Republic of Liberia.  Mr. George W. Bush was constitutionally elected President of the United States of America, while Mr. Charles G. Bryant was handpicked, outside of the Constitution and the Statutory Laws of the Republic of Liberia to serve as the transitional Chairman from 2003 to 2005. To-date, Mr. George W. Bush was the elected and President of the United States of America, and Mr. Charles G. Bryant was a criminal defendant indicted and before the Courts of Liberia charged then with the Crime of Economic Sabotage. Were Mr. Bryant and all his actions from 2003 to 2005 while serving as transitional president of Liberia, immune and protected under the Constitution of Liberia? Whether they be actions of omission or of commission, are all actions of a President, whether sitting or former president is immune and protected by his/her country’s Constitution from judicial review?

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What is Presidential Immunity?

Whether serving in the affluent Western World or on the Continent of Africa, Presidents have always contended that the office of the president is a special and unique office. They have argued that the office of the president has immense and enormous powers and responsibilities.  These powers and responsibilities are so vast and important that the president must always direct his/her undivided time and attention to his/her duties and responsibilities for the sake of protecting the interest of the people. For this reason, both Western and African Presidents have always argued and claimed that the official and unofficial acts of a president cannot be questioned by the judicial or the legislative branch of government because the president always enjoys executive privilege with presidential immunity. What is presidential immunity? In Africa, this case is shamefully made strongest. Presidential immunity is the power and authority that a president must declare that his/her discussions, deliberations, and communications are confidential and secret.  As such, all presidential deliberations and communications are absolutely protected by the Constitution from the public. United States v. Nixon, (1974), Nixon v. Fitzgerald, Baker v. Carr, Clinton v. Jones and Article 61 (a) of the Liberian Constitution relative to Executive Privilege and Presidential immunity.

Historically, discussions, deliberations, and communications carried out by and under the auspices of the office of the President are usually privileged and protected by the Constitution.  In the Republic of Liberia, Article 61 of the Liberian Constitution is shield that a sitting and former President relies upon. They stress and argue that all their discussions and deliberations are immune if they are specifically conducted within the scope and limitation of the office of the president. To be privileged and protected under the Constitution, a president’s actions and inactions must be official, specific, and serve a compelling public and national interest. Unofficial and vague communications, discussions and actions of a President that serve the general, narrow, or personal interest of a president of any country is not constitutionally and protected.  Furthermore, for presidential immunity to apply, a sitting or former president must be acting within the scope of the office of the presidency and under the expressed or implied laws of his/her country. The goes to say that a sitting or former president that acts outside of the law, he/she enjoys no immunity and protection and thus, judicial review, shall certainly be attached and he/she can be prosecuted after leaving office. Under the construction and application of constitutional law he/she is not immune.

Under constitutional law when a president acts pursuant to the expressed or implied power delegated and assigned to him/her by the State, the President’s acts are at their maximum immune and protected under the Constitution. Youngtown Sheet & Tube CO. v. Sawyer 343 U.S. 579 (1952), and Constitutional Law by Chemerinsky, PP 232-342.  Constitutionally, the executive power of the state is vested in a president, and thus, he/she must take care that the laws of his country are always faithfully executed. The law, whether statutory or constitutional, permits no citizen elected President of his/her country and by his people, he/she is elected to commit civil and criminal offense while President and against the interest of the State.

Liberian Constitution: Article 61

The 1986 Constitution of Liberia, States: The President shall be immune from any suits, actions, or proceedings, judicial or otherwise, and from arrest, detention, or other actions on account of any act done by him while President of Liberia pursuant to any provision of this Constitution or any other laws of the Republic. The President shall not, however, be immune from prosecution upon removal from office for the commission of any criminal act done while President.

 Article 61 of the Liberian Constitution as herein stated, presents two fascinating and computing questions:

  1. Whether Article 61 of the Liberian Constitution grants the sitting or former President of Liberia absolute immunity and protection for crimes he/she committed while in office?

 

  1. Whether the President of Liberia can only be prosecuted if he/she is impeached by the House of Representatives and convicted by the Senate?

To properly construct and apply Article 61 of the 1986 Constitution of Liberia, Liberian scholars and attorneys, and the Courts of Liberia particularly the Honorable Supreme Court of Liberia are duty bound and obligated to ascertain and determine the original intent and meaning of the drafting and supervisory committees of the 1986 Constitution of Liberia. The neglect and failure to revisit, review and legally determine what the drafters of our Constitution meant when they drafted Article 61, sadly undercuts, and certainly amounts to judicial neglect which in and of itself, violates the authority of the courts of Liberia—this, includes the statutory and constitutional powers invested in the Courts of Liberia.

So, does Article 61 of the Constitution of Liberia grant absolute immunity to a sitting and former President of the Republic from prosecution or from judicial review for civil and criminal offenses that he/she committed while in office and serving the State as President?

Liberia’s Constitution and Statutory Laws grant no such power and authority to the President and the former President of Liberia. No Liberian is above the laws of Liberia, whether an ordinary citizen, former or elected President of Liberia. The purpose and intent of Article 61 of is to: 1) ensure that the President of Liberia whether sitting or former President will always uphold and act consistent with the laws of Liberia. 2) Though the executive power of Liberia is vested in the President, he/she must take care that the laws of Liberia are faithfully executed. When the sitting or former President acts outside of the laws of Liberia by commission of a civil or criminal offense, whether sitting or former President, his/her acts are not immune, and he/she enjoys no protection from arrest and prosecution by our courts.

Being the President of Liberia, his/her acts and actions are legally the acts and actions of the States. Since the purpose and intent of the establishment of the State borders on law and order and to always protect its citizens and residents, whether sitting or former President, he/she has no legal authority outside of the Liberia’s Constitution and the Statutory Laws of Liberia to act criminally and unlawfully. That goes to say that consistent with the doctrine of constitutional construction, interpretation, and application, when an elected president acts pursuant to the expressed or implied power delegated and assigned to him/her by his country, his/her actions, whether sitting or former President, are immune and protected at their maximum under the Constitution and statutory laws of his/her country.

Under Article 61 of the Constitution of Liberia, the sitting or former President of Liberia, enjoys no immunity and his/her actions are fixed subject for judicial review after he/she departs office—whether voted out of office, by impeachment by the House and conviction by the Senate, or by retirement.

Thus, is it our opinion that the Case: Charles Gudy Bryant, et at, Petitioner vs The Republic of Liberia, Respondent, Petition for Prohibition, be re-visited and recalled due to inadvertent and material errors committed that could create the impression that the actions of Liberia’s sitting, and former President are immune and protected from administrative or judicial review by the Courts of Liberia.

 

Frederick A.B. Jayweh, Esq., Counselor-At-Law, B.A, LL. B, LL.M

International Affairs Africa Center for Law and Human Rights, Inc.

 

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