By Wonderr K. Freeman, Attorney, CFCS

What does the Liberian constitution say about immunity for criminal acts by an ex-president while he/she was in office? Does it really say that all former presidents are immune from all acts done while in office? To explore this question, we must first and foremost start with the Liberian Constitution (1986). Here is what our Constitution says:

Article 61

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 62

The President and the Vice-President may be removed from office by impeachment for treason, bribery and other felonies, violation of the Constitution or gross misconduct.

What these clauses show is that a president, whether in power or out of power, can be held accountable for his or her actions that are unconstitutional, unlawful, and illegal – including for acts constituting a felony. A constitution that envisages that a sitting president can be removed from office for unlawful action and/or felony (as noted in article 62) will not, at the same time, grant the same president “immunity” for felonious crimes while out of office. Accountability logically follows that, if you are not excluded from accountability while in office, there is no reason to believe that you will be immune for your criminal acts after you shall have left office.

Reading articles sixty-one and sixty-two in conjunction with other articles, as the constitution was meant to be read and understood, it becomes even clearer that all [persons] are equal under the law. This is not a mere theory. This goes to the heart of the rule of law and constitutional order. Chapter III, Article 11 (a)_(c.) puts it squarely that all persons are equal before the law and are entitled to equal protection under the law. Equal means equal. To assume that articles 61/62 give a president or ex-president “extra” rights to commit crimes and walk away with impunity is to impute something that is not in the constitution and was never ever contemplated under our constitution.

Liberian most recent case law on presidential immunity

In the case ‘Brownie Samukai vs Republic of Liberia (October 2020)’, ex-Defense Minister, Brownie J. Samukai sought to cover his crimes of theft of property and criminal conspiracy of Armed Forces of Liberia personnel’s pension funds by deference to “presidential directive” and implied presidential immunity. The Court in affirming Mr. Samukai’s guilty verdict stated:

It is unimaginable that the Government will order such invasion of private property (i.e. doing something illegal, unlawful or commit crimes) right without the due process of law. To condone this conduct of any public official is tantamount to giving a carte blanche to public officials to arbitrarily invade private properties. This Court declines to go down this path of uncertainty and lawlessness.

The Court in the Brownie Samukai ruling made it clear that no public official (i.e., including the president of Liberia, representative, senators, ministers, commissioners) has carte blanche to act unlawfully or to commit crimes. In essence there is no immunity for unlawful and illegal acts – not even for ex-presidents.

Common law doctrine of official immunity

Generally, in most common law jurisdictions, official immunity applies in cases where significant discretion is associated with an office. In plain terms, that “office” makes decisions which could or could not turn our “well”. The doctrine therefore precludes punishment or liability for a public official for not making the “right call”. It is under this doctrine that immunity is generally granted to legislators, judges, and executives’ officials, including president or prime ministers. This immunity for the exercise of discretion by a public official always apply to the lawful activities and never to unlawful or illegal acts, more so in the case of felonious criminal acts. Note, that the immunity only applies to “discretionary” acts as defined by law and never to non-discretionary acts by the public official. For example, article forty-two of the Liberia constitution provide for legislative immunity for senators and representatives in the following manner

• No member of the Senate or House of Representatives shall be arrested, detained, prosecuted or tried as a result of opinions expressed or votes cast in the exercise of the functions of his office.
• Members shall be privileged from arrest while attending, going to or returning from sessions of the Legislature, except for treason, felony or breach of the peace.
• All official acts done or performed and all statement made in the Chambers of the Legislature shall be privileged, and no Legislator shall be held accountable or punished therefor.

You will note that this is a qualified immunity with emphasis on the (a)“functions of his office”, (b)“going to and coming from sessions”, and (c.) for “official acts”. Note also that there is an express exclusion for treason, felony or breach of the peace. A senator who kills somebody while driving under the influence of drugs or alcohol does not get to benefit from legislative immunity because his/her act is (a) not an official act (b) does not involve the exercise of discretion of this office function, (c) is a violation of the relevant criminal code. This same logic applies to a judge or an executive official, including the president or former president, as the case may be.

Does the Liberian president have immunity for corrupt acts done during his/her tenure?

The short answer is no! I have surveyed the Liberian constitution and showed that public officials, whether presidents, executive officials, legislators, or judges have only qualified immunity – immunity in so far as it related to the exercise of “discretion” in relation to their specific office. Under the common law doctrine of “official immunity” this qualified immunity most certainly does not apply to non-discretionary acts, not to mention felonious crimes. The president is only one of many public officials imbued with qualified immunity. The president, while in office, does not have a blanket immunity for all acts done as president. This notion of an all-encompassing immunity for all acts is prevalent in Liberia, but patently false and misleading. It is repugnant to the idea of equality before the law and is unfounded under our constitution, statutes or under global common law principles.

Liberia has well-established prohibition under our criminal code [Penal Law, Title 26, Chapter 15, subchapter (D) to (F)], including prohibition against Economic Sabotage against the Republic. Some of the specifically proscribed [felonious] acts include:

1. Money laundering
2. Theft of property
3. Fraud on the internal revenue
4. Misuse of public money, property, or record
5. Theft and/or illegal disbursement and expenditure of public money
6. Misapplication of entrusted property  
7. Receiving stolen property

As far as the law of Liberia holds, any president or public officer, who became unmindful of his/her oath of office, and engaged in any of the acts listed above (or other felonies), can be prosecuted, and when convicted, sentenced. They have absolutely no immunity. That the person was once a president does not grant them any extra immunity. This is particularly so in the case of acts constituting a felony under our penal code. I recognize that this notion of an all-encompassing immunity for ex-presidents is commonplace in Liberia’s public discourse. Maybe it is ignorance or maybe it is mis-education. Whatever it is, let’s set the record straight, one’s status as a former president does not grant one immunity for corrupt acts done while in office. The list of corrupt acts above are all felonies and subject to criminal prosecution when evidence is substantial and a prima facie case is made out. Equality before the law does not allow for exceptions based on status.

Summary note

To reiterate, our former presidents enjoy only “qualified” immunity – for discretionary acts in line with their official duties. This qualified immunity does not apply to non-official acts, or non-discretionary acts, and certainly does not apply to criminal acts, including corruption. Stealing millions or even thousand is not an “official act” and does not qualify for immunity. A government failing to prosecute an ex-president for well documented grand theft and unbridled corruption under the guise of respecting “presidential immunity” is simply trying to cement a false narrative. This is not Liberian law and never has been. Liberia’s democracy is no different from other constitutional democracies around the world where we have seen former presidents (and heads of government/prime ministers) going to jail for crimes committed while in office. In recent times we have seen presidents and other heads of government tried, convicted and sentence to prison, including countries like South Korea, South Africa, Brazil, Isreal, Argentina, Peru, etc. If our current government chooses not to persecute a former president for corruption or other criminal acts done while in office, let it be known that this decision is not based on Liberian law, or on common law, but most likely this unfortunate decision is an act of self-preservation – setting a precedent that they too hope to benefit from in the future.