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Faculty of Law Lund University FACULTY OF LAW LUND UNIVERSITY ALVIN WEAGAR YELLOWAY ACCESS TO JUSTICE IN LIBERIA: A CRITICAL ANALYSIS OF CORRUPTION IN THE LIBERIAN JUDICIARY AND ITS NEXUS TO PRETRIAL DETENTION FROM 2004-2019 JAMM07 MASTER THESIS INTERNATIONAL HUMAN RIGHTS LAW 30 HIGHER EDUCATION CREDITS SUPERVISOR: DR. KAROL NOWAK TERM: 21 JANUARY – 28 MAY 2020 TABLE OF CONTENTS Summary 1 Preface 2 Abbreviations 3 Chapter 1 4 Introduction 4 1.1 Introduction to the Subject 4 1.2 Purpose and Research Questions 6 1.3 Methodology and Material 7 1.4 Theory and Perspective 10 1.5 Limitations of the Research 13 1.6 Definition of Terms 15 1.7 Review of Current Research Status 18 1.8 Outline 21 Chapter 2 23 Access to Justice in Liberia 23 2.1 History of Access to Justice in Liberia 23 2.2 Linkage between the USA’s Legal System and Liberia’s Legal System 24 2.2.1 Governance Structure of the two Nations 25 2.2.2 The Legal System and Legal Principles of the two Nations 26 2.3 Legal Basis of Access to Justice and Analysis of Liberia’s Legal System 30 2.3.1 Legal Basis of Access to Justice 30 2.3.2 Analysis of Liberia’s Legal System 31 2.3.3 The Statutory or Formal Legal System 32 2.3.4 The Traditional or Customary Legal System 43 2.4 Access to Justice before Regional Mechanism and Sub-Regional Court 50 2.4.1 Access to Justice at the African Commission of Human and Peoples Rights 51 2.4.2 Access to Justice before the ECOWAS Community Court of Justice 52 2.5 Current Trends of Access to Justice in Liberia 53 2.5.1 Accessing Justice via Innovative Hubs 55 2.6 The Transitional Justice Process and Access to Justice 56 2.6.1 The Transitional Justice Process 57 Chapter 3 62 Corruption in the Liberian Judiciary 62 3.1 Bribery as an Act of Corruption 63 3.2 Judicial Independence, Immunity, and Political Interference and Maneuvering 65 3.2.1 Judicial Independence and Immunity 65 3.2.2 Political Interference and Maneuvering 67 3.3 Prohibition of Corruption, Measures to Curb Corruption, and Abuse of Power in the Judiciary 68 3.3.1 Prohibition of Corruption 68 3.3.2 Measures to Curb Corruption and Abuse of Power 69 3.4 Ethical Transgression by Judicial Officers as Corruptible Acts in the Judiciary 73 3.4.1 Corrupt Practices and Ethical Transgression by Judges 74 3.4.2 Corrupt Practices and Ethical Transgression by Lawyers 77 3.5 Jury Tampering as Corruptible Acts in the Judiciary 79 3.5.1 Legal Basis of Trial by Jury 79 3.5.2 Jury Tampering as Corruptible Acts 80 Chapter 4 83 Corruption in the Judiciary and its Nexus to Pretrial Detention 83 4.1 Legal Basis of Pretrial Detention and Length of Pretrial Detention 84 4.1.1 Legal Basis of Pretrial Detention 84 4.1.2 Length of Pretrial Detention 85 4.2 Police Corruption and Abuse of Power by Judges as an Impetus for Subjection to Pretrial Detention 86 4.2.1 Police Corruption and its Linkage to Pretrial Detention 87 4.2.2 Abuse of Power by Judges and its Linkage to Pretrial Detention 88 4.3 Subjection to Prolonged Pretrial Detention as a Violation of Fundamental Human Rights 90 4.3.1 Presumption of Innocence 91 4.3.2 Deprivation of Liberty and Security of the Person 92 4.3.3 The Right to Speedy and Fair Trial 93 4.3.4 Deprivation of the Right to Equality before the Law and Due Process of Law 94 Chapter 5 97 Concluding Analyses 97 5.1 Is Access to Justice in Liberia a Fundamental Human Right? 97 5.2 Can Judicial Corruption and Abuse of Power be alleviated in the Liberian Judiciary? 98 5.3 Is Subjection to Prolonged Pretrial Detention against the Rule of Law in Liberia? 99 5.4 Is the Liberian Judiciary Stifling the Rule of Law as a result of Corruption? 100 5.5 Final Thoughts 101 5.6 Concluding Remarks 102 Bibliography 105 Books 105 Articles 105 UN Documents 106 AU Documents 107 ECOWAS Documents 107 Liberian Laws 107 Table of Cases 107 Other Links 108 Online Dictionaries 108 SUMMARY In this research, I investigate access to justice in Liberia; specifically delving into corruption in the Liberian Judiciary and its nexus to pretrial detention. I argue, that despite the huge investments by the post-conflict nation and its partners in the Judiciary; in order to sustain peace and political stability, the desired outcome of a strong, transparent, and independent Judiciary has not been attained. The Judiciary has denied citizens effective access to justice, it is entangled in rampant corruption, which has caused a boom in pretrial detention across the post-conflict nation. I also argue that corruption in the Liberian Judiciary has undermined citizens’ trust and confidence in the Judiciary and this has led to violation of fundamental human rights and poses a direct threat to the political stability and security of the nation. I argue that effective access to justice is a fundamental human right and it needs to be enjoyed by all individuals within the Liberian jurisdiciton. I also argue that unhindered enjoyment of the right to effective access to justice is absolutely essential in building trust in the Judiciary, restoring law and order in the post-conflict nation after decades of anarchy, and entrenching the basic tenets of democratic governance. I further argue in this research that in a post-conflict country like Liberia, where there are limited capacity of judicial officers and a challenged economic environment, judicial corruption cannot be eliminated from the judicial landscape of the nation, but can be minimized through increased salaries for judges and court officers and the institution of harsher punishment for them in the event they breached ethical standards. I also argue that the Judiciary is stifling the rule of law as a result of corruption by violating the basic rights of alleged criminal defendants and denying them their statutory right to a bail. I then argue, that the Liberian Judiciary is not independent and it is colonized by a patrimonial Presidency. Finally, in drawing a nexus of corruption in the Liberian Judiciary to prolonged and increased pretrial detention, I argue that corrupt practices in the Justice of the Peace Courts, Magistrates’ Court, and Circuit Courts have immensely contributed to massive, widespread, and sporadic pretrial detention across the post-conflict nation. I further argue that the failure of these different courts to utilize the constitutional provisions on bail and the criminal procedure statute have contributed to the floodgate of pretrial detainees across the West African nation. I then conclude my argumentation that the subjection to prolonged pretrial detention is contrary to the Constitution of Liberia, international human rights treaties the post-conflict nation has ratified or acceded to, and it has undermined the rule of law by crushing on an alleged criminal defendant’s right to due process, equality before the law, and subject pretrial detainees to harsh punishment for crimes which they have not been convicted of before a court of competent jurisdiction. 1 PREFACE Firstly, I would like to commend the Swedish Institute (SI) for affording me the opportunity to study at Lund University through the SI Scholarship for Global Professionals. I am ever so grateful to SI and indebted to the incredible people of Sweden for this academic journey. Secondly, I would like to say a very big thank you to Dr. Karol Nowak; my supervisor, who helped me with all the comments and feedbacks from the development of the research topic to the finalization of this scholarly work. Thanks Karol! Finally, to my incredible father, hero, and champion: Dear Papa, Today, you are resting in the bosom of Abraham; but your memory lives on forever. You did all within your powers to give me a decent education during the turbulent civil conflict in Liberia by selling all of your chattels and real properties when you could not raise me and my siblings school fees. You made my dream a reality! You live a selfless life for me to acquire an education! You coached me, mentored me, and showed me the brightest way in life! You taught me that I must never settle for little things, patronage, and the easy paths in life; but I must work hard, study hard, and find the right paths in life which will unlock doors. I am forever grateful to you, Samuel Weagar Yelloway! Sincerely Yours, Alvin Weagar Yelloway Your Son 2 ABBREVIATIONS ACHPR African Charter on Human and Peoples’ Rights ACS American Colonization Society Atty Attorney /Attorney-at-Law AU African Union CEDAW Convention on the Elimination of all forms of Discrimination Against Women Cllr Counselor/Counselor-at-Law CRC Convention on the Rights of the Child CRPD Convention on the Rights of Persons with Disabilities ECOWAS Economic Community of West African States ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic Social and Cultural Rights GEC Grievance and Ethics Committee INCHR Independent National Commission of Human Rights JIC Judicial Inquiry Commission LCLR Liberia Code of Law Revised LLR Liberian Law Report LNP Liberian National Police LSCR Liberia Supreme Court Report MOJ Ministry of Justice of Liberia OAU Organization of African Unity RL Republic of Liberia TRC Truth and Reconciliation Commission of Liberia UN United Nations UNDP United Nations Development Programme UNICEF United Nations Children’s Fund UNSC United Nations Security Council UNGA United Nations General Assembly UNMIL United Nations Mission in Liberia UN Women United Nations Entity for Gender Equality and the Empowerment of Women USA United States of America UDHR Universal Declaration of Human Rights 3 CHAPTER 1 In this chapter, I will sketch out the introduction to the research and its background.
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