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INJUSTICE IN THE BALANCE: CORRUPTION AND THE RULE OF LAW IN LIBERIA

By Nathan Tousley*

Located on the western coast of Africa, Liberia is a unique country, rich in both natural

resources and history. It was originally settled in 1847 by freed slaves from America, known as

Americo-Liberians, and although they never constituted more than 5% of the population, they

have been the primary rulers of Liberia for 150 years.1 Though Liberia claims the title of the only

African country to self-govern itself throughout the colonial period, the Americo-Liberians ruled

the country in a similar fashion to many of the other colonial empires, and there are still some

traces of resentment that remain. Throughout the 20th century, the country fared much better than

many of its sister countries, and saw considerable progress as a nation. However, even with

compulsory education laws, in the mid-1960’s, there was still less than 10% of the population

who was literate, and many of the native tribes were very reluctant to have anything to do with

the government.2 In spite of this, however, Liberia’s economy was improving dramatically,

spurred primarily by American investment during and after World War II, and by the 1970’s, it

was well ahead of its neighbors. However, in 1980, trouble struck when a dozen or so mutineers,

led by Master Sergeant Samuel Doe, mounted a military coup against the government,

overthrowing it and instituting a dictatorship in its place. Although his rule had a violent

beginning, things continued relatively peacefully after that for a period of time. He created a

new constitution and also held elections in 1985, but they were deemed fraudulent, and political

1*Nathan Tousley is a Cadet First Class at the United States Air Force Academy. He will graduate in May 2013 with a Bachelors of Science degree in Legal Studies. The views expressed here do not represent the views of the United States Air Force Academy, the United States Air Force, or the Department of Defense. Itano, Nicole. "For Liberians, old ties to the US linger." CS Monitor. 03 2003: 2 Dec. 2012. <http://www.csmonitor.com/2003/0808/p25s04-woaf.html?related>.2 Dalton, George. "History, Politics, and Economic Development in Liberia." Journal of Economic History. 25.4 (1965): 30 Nov. 2012.

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unrest continued to rise, until the country eventually rose up against him. There were several

different faction leaders who organized their forces against the government, the most notorious

and successful of these being Charles Taylor, who rose to power after defeating the government

forces, but then proceeded to institute an even more cruel dictatorship than before. After a

period of time, the country rose up against him as well, resulting in the Second Liberian Civil

War, which finally ended with Taylor’s defeat and capture in 2003, finally ending the fourteen

years of periodic civil war that had ravaged the country.3

The effects of this civil war still linger in Liberia today, and are compounded by a largely

broken justice system and corrupt public servants. This presents a series of challenges to those

in Liberia who are attempting to reform the government and foster economic growth, and indeed,

they have made dramatic improvements since the end of the civil war in 2003. However, one of

the most common ways that Liberians interact with their government is through the judicial

system, and for reasons discussed later, this tends to leave Liberians feeling deeply cynical about

how their government operates. Plagued with problems and rife with corruption, Liberia’s

judicial system struggles to accomplish even the most basic tasks required of it.

I visited Liberia for 2 ½ weeks in June of 2012, where I had the opportunity to conduct a

significant amount of legal research on the problems with Liberia’s justice system, and

particularly the corruption that is endemic to it. I stayed at an apartment next to the United

States Embassy in Monrovia, and did the majority of my research in Monrovia and the township

of West Point, although I also took a day trip to the district of Todee to research the rural part of

the country. I interviewed people at numerous organizations during my research, including: the

Liberia Anti-Corruption Commission, the General Auditing Commission, the Liberian National 3 Stanley, William R. "Background to the Sierra Leone and Liberia Implosions." GeoJournal. 61.1 (2004): 30 Nov. 2012.

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Police Division of Professional Standards, the National Democratic Institute, the Carter Center,

the Magisterial Court in the West Point township, the Monrovia Supreme Court, the Monrovia

Traffic Court, and the Monrovia Central Prison. This research project was sponsored by the

United States Air Force Academy and the United States Military Academy, which is in the third

year of a five-year research partnership with Liberia to provide solutions to selected legal issues

that confront Liberia today. The result of that research project is this paper, written for Liberia

as a whole and the Mayor of Monrovia specifically.

The corruption in the judicial system is the primary focus of this paper, because of the

ripple effect of problems that corruption causes in Liberia. It is much more serious than the

simple illegal transaction of money, or even the danger of the guilty being set free. The judicial

system is one of primary ways in which the government serves the people, by providing an

impartial arbiter who will dispense justice when one person has been wronged by another. It is

instrumental in fulfilling the government’s social contract with the people, and is one of the

primary functions of a properly operating government. It is an excellent opportunity for the

government to interact with the people in a positive manner, but when it fails the people because

of corruption, distrust and resentment form amongst the populace. The people begin to feel like

the government is not helping them, but is rather serving the self-interests of an elite few. This

type of divide creates dissatisfaction and an “us versus them” complex, where the people lose

commitment to their government and the policies that the government is attempting to further.

This leads to an impotent government, which is extremely detrimental to any national efforts to

improve the economic and political standing of Liberia.

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1 Problems in the Judicial System

When we first arrived in Liberia, one of the first issues that we discovered through our

interviews with the people is the general lack of access to justice through the formal system, as

well as a marked preference for the customary system. In 2010 a national conference was

convened to discuss how to reconcile the formal and customary justice system. The participants

in the conference identified corruption in the formal legal system as the “primary obstacle to

justice.” Specifically, the participant’s complaints were directed toward a lack of transparency

for the legal fees that they were charged, and also towards the ability of the wealthier parties to

influence the judge in their favor.4 This matched up with the interviews that we conducted while

in country, where the common folk also had similar complaints about the legal system – a

general feeling that the system was rigged to favor the wealthy and thus unfair to the poor.5

1.1 Income Disparity

These problems stem in part from the vast gap in income between the rich and poor in

Liberia, which means that lawyer expenses are prohibitive for the poor of Liberia, effectively

preventing them from hiring a lawyer without spending several hundred to a thousand dollars, or

close to a year’s salary for the poor, who rarely make more than $100 USD per month. The

upper class in Liberia, on the other hand, makes an income comparable to a middle-class

American, approximately $7500 USD per month.6 Wages in the private sector are sometimes

higher than the public sector, but often private companies justify their extremely low pay

4 Rawls, Amanda C., Policy Proposals for Justice Reform in Liberia: Opportunities Under the Current Legal Framework to Expand Access to Justice, in CUSTOMARY JUSTICE: PERSPECTIVES ON LEGAL EMPOWERMENT 91, 104 (Janine Ubink & Thomas McInerney eds., 2011) 5 James Nuah, Personal Interview, 28 June 2012.6 Rathke, Wade. "President of Liberia's Pay." Chief Organizer. Daily Kos, 25 2009. Web. Web. 7 Nov. 2012. <http://www.dailykos.com/story/2009/08/25/772360/-President-of-Liberia-rsquo-s-Pay>.

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because the government’s standard pay to civil servants is around only $80/month. Because of

this income disparity, richer people who are sued will typically request that their case be litigated

in court, rather than being mediated at the magisterial court level, knowing that the plaintiff

cannot afford it.7

Additionally, many of their laws have not been updated since before the civil war, which

began almost 30 years ago. The fine amounts do not reflect inflation since then, and as a result,

the judges just ignore that part of the law and impose what they feel is an appropriate amount. As

an example, many traffic laws list fines of about 50 LD, or less than 1 USD equivalent, a paltry

fee to even poor people. The judges often up the fine to a “more reasonable” 500 LD instead, or

to whatever amount they feel is appropriate.8 This results in a subtle contempt for the law as a

whole, because if the judges don’t even feel an obligation to follow the punishments outlined in

the law, why should the citizens expect them to follow the elements of the law?

1.2 Judicial Inefficiency

In the judicial system itself, pre-trial confinement periods commonly last as long as two

years or more, simply due to inefficiency in handling the cases. In fact, the Monrovia Central

Prison is currently at nearly three times its planned capacity of 350 inmates, and of the nearly

1000 inmates there, 88% of them are in pre-trial confinement.9 Often the amount of time that the

inmates are waiting in jail for their trial exceeds the possible sentence that they would be given,

if convicted.10 We observed several instances where charges were simply dropped because of a

7 Magisterial Judge. Personal Interview. July 09 2012.8 Traffic Court Judge. Personal Interview. July 07 2012.9 Johnson, Alaskai Moore. "Central Prison to Be Relocated." Liberian Daily Observer [Monrovia, Liberia] 31 JAN 2012, Web. 7 Nov. 2012. <http://www.liberianobserver.com/index.php/news/item/347-central-prison-to-be-relocated>.10 "Promoting Rule of Law and Governance in the Criminal Justice System in Liberia." United Nations Development Account. United Nations, Oct 27 2011. 2 Dec 2012. <http://www.un.org/esa/devaccount/projects/2010/10-11AY.html>.

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lack of evidence when the cases finally did come to court, and there is no indication that any

compensation is given to those who have unfairly served years in jail. This current system

punishes everyone who even gets accused of a crime, and although it tangentially has some

effect of deterrence, the injustice done to innocents is much greater.11

The public is aware that these false accusations can easily land innocent people in jail,

and the investigation won’t clear them for years. Our conversations with a judge at the

magisterial court indicated that victims usually don’t believe that it is likely that they will see

justice for how they have been wronged. The judge believed that this was largely because of

poor police work, particularly in gathering sufficient evidence for the crime that is being

charged. He also believed that much of the difficulty came from the victims not understanding

the system, and sometimes only coming to court once and then believing that they were no

longer needed. Without witnesses for the additional hearings, the cases had to be dropped.12

1.3 Lack of Representation or Inadequate Representation

Another reason for the slowness of the judicial system may be because of the lack of

qualified public defenders to represent the accused. A United Nations report in 2011 found that

there were less than 30 lawyers who were exclusively public defenders in Liberia, and most of

these were relatively young and inexperienced. This is miniscule in contrast to the 4.1 million

people who currently live in Liberia.13 It also found that there was very little infrastructure in

place for defense attorneys in the Liberian criminal justice system, with little centralized

coordination or support staff.14

11 Liberian Circuit Court. Personal Observations. 29 June 2012.12 Magisterial Judge. Personal Interview. July 09 2012.13  "Liberia Population." Trading Economics. World Bank, Jan 2012. 10 Dec 2012. <http://www.tradingeconomics.com/liberia/population>.14 "Promoting Rule of Law and Governance in the Criminal Justice System in Liberia." United Nations Development Account. United Nations, 27 2011. Web. 2 Dec 2012. <http://www.un.org/esa/devaccount/projects/2010/10-

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Corruption appears to be endemic among all levels of the Liberian government, but it

causes particular problems in the judiciary. It is difficult to ascertain what percentage of the

judges are willing to take bribes, however, there is a common perception among the people that

we interviewed that the judges often accept bribes. This leads to the perception that the rich

won’t be convicted – a theme that we commonly heard was: “if you have enough money, you

can get the judgment that you want.”15 We observed significant unprofessional behavior by the

lawyers in the courtroom as well, and it appeared to us that they do not take the judicial process

that seriously. Examples include: talking and joking with each other during the court session,

periodically texting under the table, and once a defense counsel simply left the court for a while

during the proceedings.16

2 Cumulative Impact of these Problems

The combined effect of these actions results in a serious distrust of government figures,

which is one of the worst second-order effects of corruption, and has far-reaching implications

for the government as a whole. We interviewed a woman who is working to help other women

get back on their feet through an organization called WANT (Women Action Network for

Transportation).17 Her belief was that the government officials use the drugs they confiscate and

that the justice system as a whole was generally corrupt – a theme that we heard repeatedly

throughout most of the interviews that we conducted during our time in Liberia.

11AY.html>.15 James Nuah, Personal Interview, 09 July 2012.16 Liberian Circuit Court. Personal Observations. 29 June 2012.17 Florence, Personal Interview, 30 June 2012.

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One of the most egregious areas where corruption has completely tainted the populace’s

view of the government is in the Liberian National Police. They are most often seen at their job

as traffic police, however, it doesn’t appear that their presence is improving traffic much in the

city. Traffic is almost always congested in the city, drivers generally do whatever they please,

including driving in the wrong lane and on sidewalks, and basic traffic laws appear to be rarely

enforced. These factors alone would serve as an indicator that perhaps the police are not doing

the job they are being paid to do. In order to determine how the police were using their time, we

staked out an intersection to make personal observations of police for about a thirty-minute time

period. During this time, we saw at several policemen pull over drivers for reasons not

immediately apparent to us, and then after some arguing, accept a wad of bills and let the driver

go free. Our driver explained to us that the policemen usually pull drivers over for some kind of

defect on their car, asserting that it is a safety violation. He told us that these bribes are usually

not very large to a foreigner, on the order of $100-$500 LD or approximately $5 USD, but they

are significant amount to the drivers. This could significantly improve the take-home pay of a

policeman, if they stopped one or two dozen drivers per day.18 This is one of the deep-rooted

problems in the Liberians failure to trust their government, for once they have subverted a

government official with money, they will always believe that other government officials are

probably secretly taking money as well.

We observed the effects of this on several occasions, when our driver deliberately

avoided traffic police who were attempting wave him down, driving off the road in order to

avoid an encounter with them. He firmly believed that all they were interested in was money,

and got into a major argument with one police officer who did pull him over. This sort of 18 Sengbeh, . "Liberian Police Chief Admits Corruption In Traffic…Says Penalty Awaits Officers." Sengbeh's Weblog. 11 2010. 6 Nov. 2012. <http://sengbeh.wordpress.com/2010/07/11/liberian-police-chief-admits-corruption-in-traffic-says-penalty-awaits-officers/>.

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attitude is not surprising, considering the things that he said he experienced at the hands of

corrupt policemen, which is why addressing the corruption that causes it should be at the top of

the government’s list of priorities.

2.1 Legal Dissatisfaction Leads to Increased Use of the Customary System

The net result of all this is to make customary forms of justice much more attractive,

particularly in the rural areas of the country. The common people, at least in the rural areas,

believe that they are more likely to get justice from a tribal elder or chief than from the

government. Our interviews indicated that the people believed that the tribal elders were much

less likely to be corrupt and generally could be trusted to deal fairly with the cases that were

brought to them.19 In the urban areas, customary justice often takes on the form of street justice

for dealing with criminals, partly because they don’t believe that the government will

appropriately deal with criminals. As an example, a shopkeeper explained to us that thieves are

very harshly dealt with, usually in the form of bystanders tackling the offender and teaching him

a very harsh lesson in community justice. As a result, there is very little thievery and

shopkeepers have their money openly displayed in a box in front of their stores, often to the tune

of hundreds or even thousands of Liberian dollars – which is a significant sum for most

Liberians. In spite of this, the shopkeepers seem to trust the people enough to keep the money in

plain view without any apparent means of guarding it. This is one of the few methods of justice

that actually does work in Liberia, and it is rather strange to compare this to their relative

indifference to government corruption. Regardless, they do trust their fellow man much more

than their government, and often settle minor matters such as traffic damages on the spot. We

19 USAID Legal Assistant, Personal Interview, 5 July 2012.

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personally observed an example of this when our vehicle was damaged by a faulty security gate,

and the hotel immediately offered reparations to our driver.

3 Barriers to Progress

From my interviews with Liberians, it seems that most Liberians do want to see their

country become less corrupt, but unfortunately, there are a number of barriers to substantial

progress. The Liberian National Police generally lack resources and also receive some of the

lowest pay in the entire country, compared to the private sector, around $90/month.20 The

government is reluctant to increase their pay, however, and froze all government pay in

September 2012 because they suspected that there were a number of false entries on the payroll,

known as “ghost workers.”21 The rural policemen outside of Monrovia are hit particularly hard

by this lack of pay, as the government fails to provide them with a vehicle, gas, or money for

either. Sometimes the police will refuse to arrest without receiving a bribe first, because

otherwise they would not have enough money to buy gas to investigate the matter.22

The government has created an organization with specific purpose of fighting corruption,

called the Liberian Anti-Corruption Commission (LACC), but they are also stymied by a lack of

resources. With only 57 member staff and $2 million USD budget to supervise the entire

government, and it appears to us that the government doesn’t really want them to succeed.23 In

fact, in the four years that they have been in existence, they have always received less money

20 Executive Director of LACC, Personal Interview, 6 July 2012.21 Paye-Layleh, Jonathan. "Liberia Freezes Pay for Civil Servants." IoL News 07 SEP 2012, n. pag. Web. 7 Nov. 2012. <http://www.iol.co.za/news/africa/liberia-freezes-wages-for-civil-servants-1.1377604>.22 USAID Legal Assistant, Personal Interview, 5 July 2012.23 Executive Director of LACC, Personal Interview, 6 July 2012.

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than they asked for, another indicator that they do not have real government support.24 The

government as a whole has a budget of approximately $650 million USD, which means that the

government allocates only 0.31% of the budget25 to combat what many political scholars believe

is the most serious problem confronting Africa today.26

The LACC has had some measure of success in bringing charges of government

corruption, but less in seeing them successfully prosecuted. As an example, the former

Chairman of the Liberian Telecommunications Authority was investigated on suspicion of

operating a ghost payroll of more than $71,000 USD. He was arrested and tried, but the first trial

resulted in a hung jury and the retrial was still pending two years later.27 The LACC does make

an effort to ensure that all its investigations are free from corruption and undue government

influence – it even has separate prosecutors who are not affiliated with the Ministry of Justice in

any way. The LACC operates entirely independent of the rest of the government, so it appears

unlikely that the failure to convict individuals like the Chairman of the Liberian

Telecommunications Authority is related to prosecutorial corruption. It is unclear why they have

not met with greater success in ferreting out government corruption, but it could be because

those who are selected for the jury do not believe corruption to be a serious matter because they

see it happen so frequently with police officers on the street.

3.1 Lack of Government Credibility

24 Johnson-Morris, Frances. Interview by Scharff, Friedman, & Bacon. "Innovations for Successful Societies."Oral History Program. 30 2012. . Web. 7 Nov 2012. http://www.princeton.edu/successfulsocieties/content/data/oral_history/v1_frances_johnson-morris_id392/frances_johnson-morris.pdf.25 Zeongar, O. Testimony. "Liberia: U.S.$649.7 Million Draft National Budget Submitted to Legislature." All Africa. 1 2012: <http://allafrica.com/stories/201206030212.html>.26 The International Dimension of Africa’s Struggle Against Corruption. John Mukum Mbaku. 10 Asper Rev. Int'l Bus. & Trade L. 3527 "LACC SAVES GOL From AFL Ghost Payroll OVER L$1 MILLION." Liberian Anti Corruption Commission News. LACC, July 12 2011. Web. 3 Dec 2012. <http://www.lacc.gov.lr/LACC_SAVES_GOL_From_AFL_Ghost_Payroll_OVER_L$1_MILLION.html>.

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The continuing petty corruption by traffic police undermines the government’s efforts to

restore credibility among the population, because the average Liberian still commonly sees and

hears about policemen taking bribes. This corruption is so endemic amongst the police that the

people no longer find it unusual anymore, and taxi drivers even figure bribes into their overhead

to cover the costs of bribing policemen for imaginary traffic violations.28 This has the corollary

effect of inflation on the economy, gradually raising costs until everything is more expensive.

The policemen’s corruption is so severe that they are even willing to harass those who threaten to

expose their corruption, up to and including visiting foreigners. We had a personal experience

with this when were stopped by a policeman for taking what he thought was a picture of him

receiving money from a taxi driver. He threatened to take us in to the station and ordered us to

delete all the pictures off of my camera, which we complied with because we had not actually

gotten photographic evidence of his corruption. The fact that he was willing to take this action

against a visitor to his country leads one to believe that there is a sub-culture of retribution

towards anyone who appears to be about to blow the whistle on their corrupt activities.

In addition, there also is some degree of shielding that goes on for the wealthy – our

driver explained that the policemen should know better than to pull him over, because he

transports foreigners frequently. Many laws are not taken seriously by either the police or the

population, because most of them are worried about simply putting food on the table. The

majority of their laws appear to be direct copies from the US Legal Code as well, and their

Senate library was filled with US legal volumes from the 1950s. Although copying the laws

from a well-developed country sound good in theory, the result is that these laws are both poorly

understood and haphazardly enforced.

28 Executive Director of LACC, Personal Interview, 6 July 2012.

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3.2 Major and Petty Corruption

Unfortunately, the petty corruption in the system is often overlooked due to larger

concerns about combating major political corruption. The Stimson Center released a report in

2010 that gives an effective definition of petty corruption, as well as the seriousness of the

cumulative dangers. “Administrative (or petty) corruption is the label applied to essentially all

other instances in which lower level government employees and others demand or require small

bribes either to perform what should be their regular job or to cancel trumped-up charges

(baseless traffic tickets, for example). The term ‘petty’ is misleading, however, because it fails to

emphasize the repeated (and thus cumulatively costly) nature of these comparatively small

bribes.”29 The Executive Director of the LACC was not at all concerned about the petty police

corruption; he seemed to view it as something that couldn’t be fixed.30

As an example, he cited the current case of the Monrovia police chief who is accused of

stealing $200,000 US worth of uniforms – apparently the uniforms were paid for, but there is no

trace of them ever existing. At the moment, the prosecution of this case is still being delayed,

because the government has been unable to get the allegedly complicit agency to disclose their

documents regarding the matter. 31 Undoubtedly, this police chief had engaged in corrupt activity

while a lowly traffic cop, which likely allowed her to justify this much larger degree of theft.

The Liberian National Police (LNP) has on other occasions publically recognized that traffic

police “take money and compromise the violation,” and that it is a significant issue. However,

the government believes that the traffic police are still serving their purpose, because some of the

29 Boucher, Alix, William Durch, Margaret Midyette, Sarah Rose, and Jason Terry. "Mapping and Fighting Corruption in War-Torn States." Stimson Center Report No. 61. 2010.30 Executive Director of LACC, Personal Interview, 6 July 2012.31 ND Staff. "Stolen Police Uniforms Trail Leads To UNDP." The New Democrat [Monrovia, Liberia] 03 JUN 2012, Web. 7 Nov. 2012. <http://www.newdemocratnews.com/index.php/news/corruption/763-stolen-police-uniforms-trail-leads-to-undp?fontstyle=f-larger>.

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traffic violations are enforced, which brings in some much-needed revenue for the government.32

However, it is appears that they have overlooked the dangers of allowing their police force to

compromise their integrity over petty corruption, and that it can lead to much more serious

problems when those people gain power and position.

Admittedly, the Liberian National Police does have a Division of Professional Standards,

which is responsible for fighting police corruption. Much like the LACC, however, this division

suffers from neglect and poor resources – they are tasked with oversight of the 4000 member

police force with only 22 special investigators. They lack the resources to send any investigators

to oversee police forces in the rural areas, leaving the rural police essentially unchecked.

However, the agent in charge of the office told us that corruption tends to be less outside of

Monrovia because there is simply less money to take from people.33

4 Proposed Solutions

These problems that beset the Liberian justice system are clearly complex, but this does

not require that the solutions be equally complex. A good place to begin is with what appears to

be one of the least corrupt institutions in the country, the magisterial courts, which are the lowest

level of court in the formal justice system. The corruption is limited primarily because the

consequences are not as serious and usually the matter is between two ordinary citizens, who

usually don’t have enough money for a bribe. It also is effective because it resolves matters on

the lowest possible level, making the process relatively transparent for the average citizen, or at

32 Sengbeh, . "Liberian Police Chief Admits Corruption In Traffic…Says Penalty Awaits Officers." Sengbeh's Weblog. 11 2010. 6 Nov. 2012. <http://sengbeh.wordpress.com/2010/07/11/liberian-police-chief-admits-corruption-in-traffic-says-penalty-awaits-officers/>.33 Agent-in-Charge of LNP DPS, Personal Interview, 7 July 2012.

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least more so than the complex formalities that occur in criminal court. The jurisdiction of the

magisterial court is necessarily limited to fairly minor offenses; however, because they believe

that the higher courts probably will not have the time to deal with these cases, they classify many

smaller offenses as “disorderly conduct”, which allows them to handle a wider variety of cases

than they might otherwise be able to. Another restriction that is very effective for this court is

the 30 day limitation on confinement – if a prisoner has not been indicted within 30 days of

his/her interment, they must be released. This greatly improves the courts efficiency and allows

a much more speedy trial than is typically seen in the higher Liberian courts.34

4.1 Reconciling the Formal and Customary Systems

The problem of judicial inefficiency is one of the most serious problems that confronts

Liberia today. One way to improve the efficiency of the Liberian justice system is to find a way

to use the customary system alongside the formal legal system. In 2010 a national conference

was convened to discuss how to reconcile the formal and customary justice system. Some key

takeaways were that the participants in the conference sought greater jurisdiction for courts of

first instance, such as the magisterial courts. They also desired that traditional leaders, such as

tribal chiefs, to be able to have a greater role in the formal system.35 The United States Institute

for Peace did a study about the same time as this conference, and also found that “even if the

formal system were to operate fairly, free from corruption and in a timely manner, the average

Liberian would still prefer the customary system.” It appears that the customary system is

34 Magisterial Court Judge, Personal Interview, 9 July 2012. 35 Rawls, Amanda C., Policy Proposals for Justice Reform in Liberia: Opportunities Under the Current Legal Framework to Expand Access to Justice, in CUSTOMARY JUSTICE: PERSPECTIVES ON LEGAL EMPOWERMENT 91, 104 (Janine Ubink & Thomas McInerney eds., 2011)

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usually perceived as having a more holistic approach, and is able to take into account the

different underlying causes of disputes, which allows it to repair the “tears in the social fabric.”36

The customary legal system does appear to have a great deal of sway over the Liberians,

particularly the natives who still are reluctant to buy into the formal justice system, which they

view as being “overly adversarial, retributive, and narrow in its focus on the specific case at

issue.” However, because the majority of the nation’s legal practitioners were educated in the

United States, they prefer using the formal justice system instead. In order to regain the faith of

the common people in the judicial system, some sort of compromise is necessary. According to

reports from the national conference, there was “a broad consensus that traditional leaders should

have concurrent jurisdiction over minor criminal matters and civil complaints.” Defining what

constitutes a “minor” offense is somewhat more difficult, however, and is perhaps best done by

defining what it is not: crimes in which blood is spilled, armed robbery, or rape cases in which

physical violence is used, the victim is a child, or when the perpetrator is a stranger - these are all

categories of crimes that Liberians widely accept to be matters for the formal judicial system.37

4.1.1 Implementation

There are some practical considerations for a situation that melds the customary and

formal systems together. To begin with, the traditional elders who take up the role of judges in

the customary system should be paid by the government, for three reasons. One is that it reduces

the incentive to accept bribes, since sometimes desperation for resources allows the will of an

otherwise upright individual to be overborne, and corruption is the result. The second is that this

role requires a significant time commitment, and often the tribal elders who handle these sorts of 36 Rawls, Amanda C., Policy Proposals for Justice Reform in Liberia: Opportunities Under the Current Legal Framework to Expand Access to Justice, in CUSTOMARY JUSTICE: PERSPECTIVES ON LEGAL EMPOWERMENT 91, 104 (Janine Ubink & Thomas McInerney eds., 2011) 37 Rawls, Amanda C., Policy Proposals for Justice Reform in Liberia: Opportunities Under the Current Legal Framework to Expand Access to Justice, in CUSTOMARY JUSTICE: PERSPECTIVES ON LEGAL EMPOWERMENT 91, 104 (Janine Ubink & Thomas McInerney eds., 2011)

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civil disputes don’t have enough time to devote to both their occupation and their extracurricular

judging, and then both suffer.38 The final reason is that this gives the government a justification

to give them classes on formal legal training, which should reduce instances where basic rights

are violated. Although the government does pay some of these tribal leaders for their services as

part of the customary legal system, it should be consistently applied across the board as standard

government policy.

The customary system could also benefit from classifying crimes into different

categories, such as minor, serious, and everything in between. The minor category could be

given complete concurrent jurisdiction, the serious category would have exclusive jurisdiction

under the formal system, and the in-between category would also have concurrent jurisdiction,

but would also be subject to government review for serious errors. The participants in the

national conference agreed that this sort of a system would be acceptable to most Liberians.39

This would reduce the workload on the courts, increasing judicial efficiency for all categories of

crimes, and increase the Liberian’s trust in their system of justice because the majority is

disposed in a system that they understand.

4.2 Public Legal Education for Victims

This brings up the matter of the public not understanding how the formal legal system

operates, which generally complicates legal proceedings, and can lead to perceptions of injustice

through misunderstanding. A remedy for this would be to offer classes available to the public as

a whole that explain how the legal system works, with the purpose of enhancing understanding

38 USAID Legal Assistants. Personal Interview, 5 July 2012.39 Rawls, Amanda C., Policy Proposals for Justice Reform in Liberia: Opportunities Under the Current Legal Framework to Expand Access to Justice, in CUSTOMARY JUSTICE: PERSPECTIVES ON LEGAL EMPOWERMENT 91, 104 (Janine Ubink & Thomas McInerney eds., 2011)

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and decreasing cynicism. These classes would be strictly voluntary for the public, but they could

also be implemented into the public school curriculum in order to improve public understanding

of the system. Secondly, to require that all victims affected by the legal system take this class so

that they understand how the judicial process will work in their particular case. This should

prevent the problems of witnesses leaving after initial court hearings because they believe that

their job in court is now finished, something that has been a recurring issue for Liberian courts.40

This would also have the effect of decreasing public cynicism about the legal system because

they understand it better. Finally, it would help ensure that court proceedings occur in the

correct manner, because the public would be able to better recognize when a judge is corrupted

and not affording equal rights to both parties.

4.3 Increasing Representation Through Public Defenders

Another way to improve efficiency and the people’s confidence in the judicial system is

to increase government support for public defenders. South Africa has recently adopted a system

for improving public access to justice, known as the Legal Aid Board, which has a number of

Legal Aid offices across the country.

“Legal Aid offices are run not by lawyers but by civil servants who receive the

individual applications for legal assistance and determine which are to be granted.

Applicants must first meet a standard of indigence determined by their monthly income.

Applicants who meet this standard are then evaluated on other factors. For example,

applications from criminal defendants are generally not accepted if the accused admits

guilt, is unemployed for no good reason, appears to lead a criminal life, or if the Board

determines that the case is so simple that the accused should be able to handle it himself.

40 Magisterial Court Judge, Personal Interview, 9 July 2012.

Tousley 19

Applications that are accepted are referred to attorneys in private practice, who are then

reimbursed by the Legal Aid Board at an established fee.”41

A similar system could work in Liberia, with the government paying private attorneys to

represent indigent criminal defendants. It may be even more efficient to adopt exclusive use of

salaried public defenders, instead of reimbursing private attorneys for their work. In studies

conducted by Dr. D.J. McQuoid-Mason on the feasibility of a salaried public defender program,

he estimated that “full-time public defenders, paid an adequate salary by the government, could

handle from 2.2 to 3 times as many cases as referral lawyers currently do, for the same cost.” He

also observes that “full-time public defenders would become familiar with the criminal court

procedures and would build up an expertise in issues common to poor defendants, thereby

decreasing the need for new research and allowing them to handle each case more quickly and

more adeptly.”42

There are two primary problems that arise from adopting a public defender program: the

first is a lack of qualified personnel, and the second is budgetary concerns. The personnel issue

is challenging, but could be tackled with by the government offering subsidies or scholarships to

qualified individuals interested in a legal education – even out of country, if necessary. After

receiving their education, they would incur a mandatory public service period of several years,

during which they would practice law as a public defender, and after which they would be free to

work in or open a private practice. The matter of the budget is not an easy one to solve,

particularly in a country already strapped for cash, but it is certainly a worthy cause. The

41 Legal Representation For Indigent Criminal Defendants in South Africa: Possibilities Under the 1994 Constitution. 5 Duke J. Comp. & Int'l L. 42542 D.J. McQuoid-Mason, Rudman and the Right to Counsel: Is it Feasible to Implement Khanyile?, 8 S. Afr. J. Hum. Rts. 96, 99 (1992)

Tousley 20

difficulty of solving the money problem is discussed in greater detail below along with the anti-

corruption concerns.

4.4 Restoring Government Credibility Through Anti-Corruption Efforts

Another important issue is the anti-corruption efforts by the government, and showing the

people that they take it seriously, which will hopefully increase trust towards the government.43

They can do this by publicly announcing the reports of both arrested and convicted officials in

order to serve a deterrent effect – general transparency in both successes and failures will go a

long ways toward reestablishing public trust. In the words of the Executive Director of the

LACC: “The budget reflects the priority of the nation.” 44 Nowhere is this more evident in the

government’s paltry and lackluster efforts to combat corruption, particularly in their level of

funding for the LACC. They can begin to resolve this problem by allocating much more of the

budget to anti-corruption efforts. Clearly, this will cost more money, money that perhaps the

government does not have; however, there are several avenues available to Liberia to increase

government revenue.

4.5 Proposals to Improve Government Revenue

For instance, there is much opportunity for Liberia to gain off of their natural resources,

and by emplacing enforcement controls to ensure that illegal logging is stopped.45 Additionally,

the recent discovery of oil resources off the coast of Liberia raise prospects for some serious

revenue once those oil wells are established, although it may be as many as five to seven years

43 The International Dimension of Africa’s Struggle Against Corruption. John Mukum Mbaku. 10 Asper Rev. Int'l Bus. & Trade L. 35.44 Executive Director of the LACC, Personal Interview, 6 July 2012.45 Pearce, Fred. "Liberia looks to save its rainforests by barcoding trees." Guardian Environmental Network. 24 May 2011: Web. 7 Nov. 2012. <http://www.guardian.co.uk/environment/2011/may/24/rainforest-liberia-logging>.

Tousley 21

before that can happen. 46 Establishing a sustainable model of energy development will be

important for ensuring that Liberia follows the path of prosperity that Norway and Botswana

took after the discovery of oil, and not the path that Chad and Nigeria took.47

The petroleum industry began producing wealth for the Nigerians in 1970, and seemed to

be the perfect opportunity to allow the impoverished nation to advance economically. However,

when the oil revenues were placed into the public coffers, it never reached its intended target, but

was siphoned off by corrupt government entities. In fact, per capita income actually fell in the

time period from 1970 to 2003, and as of 2004, almost two thirds of Nigeria’s population lives

on the equivalent of $1.25 USD per day. Although the government has repeatedly changed their

formula for oil distribution, it has always been between state and local governments, leaving

most of the citizenry as mere spectators.48 Since it became an independent state in 1960, there

has not been a single criminal conviction of a government official on corruption charges.49

When Chad discovered oil, the World Bank attempted to help Chad avoid the trap into

which Nigeria had fallen, and instituted a series of measures to safeguard Chad’s wealth for

future generations. Unfortunately, many of the initiatives never went any farther than where they

had appeared on paper, and as soon as Chad repaid its obligations to the World Bank, the

legislature promptly made a series of changes to the laws that allowed the government access to

the oil revenues. The populace of Chad generally did nothing to protest this, which came as a

surprise to the World Bank. A study done on the issue found the most likely source of the

46 "New oil finds off Liberia and Sierra Leone." BBC News Africa. 21 Feb 2012: Web. 7 Nov. 2012. <http://www.bbc.co.uk/news/world-africa-17115042>.47 "Liberia: Resource Expert Welcomes Liberia's Oil Sector Reform - Says Liberia on Right Track." All Africa. 17 2012: Web. 7 Nov. 2012. <http://allafrica.com/stories/201209170457.html>.48 Moss, Todd, and Lauren Young. "Saving Ghana from its Oil: The Case for Direct Cash Distribution." Center for Global Development. 3 Dec. 2012. <http://dspace.cigilibrary.org/jspui/handle/123456789/27466>.49 Ribadu, Nuhu. 2009. "Capital Loss and Corruption: The Example of Nigeria." U.S. HouseCommittee on Financial Services.

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problem, noting that: “Chad’s experiment may have failed due to the lack of institutions through

which citizens could pressure politicians to manage oil revenues responsibly, no internal

constituency for sticking to the deal, and no external player to enforce the agreement.”50

It has been suggested that the best way to avoid the so-called “oil curse” is to disseminate

oil revenues through direct cash distributions to the general public. There is some concern that

the oil money will simply be spent on consumption rather than on developing the public

infrastructure, however. This is particularly relevant for Liberia, which could certainly use the

money to pay their public servants better, improve the courts, and hire more public defenders.

Although this is a concern because the government will not directly get much money, the natural

course of economics will cause a considerable amount of money will flow back to the

government through higher taxable income. In Liberia, where the majority of the population is at

or below the poverty line, and subsists on less than $200/month, “enhanced consumption” is

most likely to result in an increased ability to meet day-to-day expenses. The money spent will

then go back into the economy, improving the standard of living for all, and the money that isn’t

spent can be taxed by the government for use in development of public resources. A study

assessing the suitability of this method for Ghana noted that: “Direct distribution also increases

the state’s dependence on its citizens.  To get some of the revenues back, the state will have to

tax them, and justify its taxes with public services.  In fact, giving people more money will create

additional incentives for the revenue authorities to improve tax collection. Therefore, handing

cash directly to citizens and forcing the tax authorities to find ways to tax some of it back is not a

cost but rather a benefit of this scheme.”51

50 Moss, Todd, and Lauren Young. "Saving Ghana from its Oil: The Case for Direct Cash Distribution." Center for Global Development. 3 Dec. 2012. <http://dspace.cigilibrary.org/jspui/handle/123456789/27466>.51 Moss, Todd, and Lauren Young. "Saving Ghana from its Oil: The Case for Direct Cash Distribution." Center for Global Development. 3 Dec. 2012. <http://dspace.cigilibrary.org/jspui/handle/123456789/27466>.

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Although direct cash distribution may not be a foolproof mechanism, it dodges the main

pitfall of tempting the government towards greater corruption by putting the oil revenues directly

into the public coffers. As demonstrated by the World Bank’s failed experiment in Chad,

transparency systems are only effective if the people have the ability and interest to hold the

government accountable for their expenditures. The Liberian government could still become

corrupt through improper use of tax money, but the public will have a new incentive to monitor

their government for transparency, after having tasted the direct benefits of the natural resources

that their country possesses. “Sharing out oil funds directly to Liberians will provide them with

an immediate highly‐visible welfare benefit and, just as importantly, a direct incentive to actively

participate in monitoring the revenue flow. At the same time, it will force the state to find ways

of increasing taxation and the provision of public services.”52 This approach could allow oil to

strengthen, not weaken, the emerging social contract in Liberia, and encourage the public to

increase transparency in government and anti-corruption efforts. A certain percentage of the oil

revenue could go directly to the Liberian Anti-Corruption Commission, with no middleman to

siphon off the resources.

In order to ensure that money earmarked for anti-corruption efforts goes to the desired

source, budget transparency should be aggressively implemented, with income and expenditures

published regularly and publicly. In fact, this may make the matter of soliciting donations from

foreign donors much easier, particularly if these donations are also given directly to the LACC

and not through the government as a middleman. Direct contributions such as these may go a

long ways toward easing the minds of donors that their money is not going to simply pad the

pockets of corrupt government officials, but rather be used for ferreting them out. Reducing

52 Moss, Todd, and Lauren Young. "Saving Ghana from its Oil: The Case for Direct Cash Distribution." Center for Global Development. 3 Dec. 2012. <http://dspace.cigilibrary.org/jspui/handle/123456789/27466>.

Tousley 24

corruption in government will go a long way towards increasing investments and donations from

foreign entities.53

There may be some who charge that spending more money on anti-corruption efforts is

an unnecessary expense that Liberia cannot afford at this point in its history. To the contrary,

this is an expense that Liberia cannot afford to not spend, because of the second and third order

effects that corruption has on the country. The most direct effect will be that more money will

be saved because there will be less corrupt officials stealing it, which should pay for much of the

cost of the program. Corruption also imposes higher costs on both the government and the

populace. The government is forced to pay more for goods and services because corrupt officials

overcharge so that they can pocket the rest, increasing the overall costs for the government

without any additional benefit. The population is also forced to pay twice for public services,

because corrupt officials demand additional money in order to accomplish almost any basic

task.54 A more indirect effect will be that the government will begin to reestablish credibility

with its people once again, which will help stop tax avoidance and encourage buy-in by the

average Liberian. This increase in tax revenues will help greatly, and more importantly, perhaps

the average Liberian will begin to feel like their government is finally on their side.

Conclusion

Tackling judicial corruption is an important and relevant concern for Liberia today, and is

critical for establishing buy-in from the public for other government policies. An effective and

impartial judicial system is the cornerstone of the modern government that Liberia desires to

53 The International Dimension of Africa’s Struggle Against Corruption. John Mukum Mbaku. 10 Asper Rev. Int'l Bus. & Trade L. 3554 The International Dimension of Africa’s Struggle Against Corruption. John Mukum Mbaku. 10 Asper Rev. Int'l Bus. & Trade L. 35

Tousley 25

establish. Without a fair legal system, the people and the government will never be able to see

eye to eye and their goals will always be very different; which will prevent the government from

ever being able to effectively pull the country from the economic wreckage that the civil war has

left. Although most of the options that Liberia has to deal with corruption also cost a

considerable amount of money, they have a vast amount of natural resources that, if utilized

correctly, could lead to substantial economic growth and prosperity for all Liberians. An

increase in the economic stature of Liberia would increase government revenue and provide the

funds to stamp out corruption in the judicial system once and for all.

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