Code of Conduct: Important but Flawed from Inception

With the resignation of the Foreign Minister, H.E. Milton Findley, for the purpose of contesting the ensuing senatorial elections, I see that Code of Conduct (CoC) has, once again, become a topical issue. And rightly so.

But here is my take on the CoC. I think it is fundamentally flawed. The March 2014 Law was never a product of a deliberative lawmaking process. It was a knee jerk reaction by the political elites to suppress the presidential ambition of Governor Joseph Mills Jones. This was wrong and never should have happened. Why do I say that? Well, let me start from beginning…

When I returned home in June 2009 to begin the process of managing the implementation of the Poverty Reduction Strategy (PRS), I realized that one of the policy interventions in the PRS under the Governance and Rule of Law (GRL) Pillar that was managed by Cllr. Arthur Johnson, was the enactment of a Code of Conduct for Civil Servants and Public Officials. According to the implementation schedule, this intervention had a completion date of December 2008 but the briefing that Cllr. Johnson provided to me indicated that the draft law was before the National Legislature with no movement. The two (2) institutions responsible for this intervention were the Civil Service Agency (CSA) and the Governance Commission (GC). Cllr. Johnson noted that the political process to enact such a legislation was onerous and would take some time.

In one of our LRDC Steering Committee (SC) meeting in 2009, which was chaired by the President, the Deputy Speaker, Tokpah Mulbah, was accompanied by some other members of the National Legislature. In that meeting, the Deputy Speaker was asked about the status of the CoC. It was astonishing that the Deputy Speaker indicated that the CoC was too complex and that they (the Natioal Legislature) were taking a more detailed look at it because it seems that the CoC might prevent them from accepting ‘chicken’ and ‘goat’ from their people as gift. I am serious! Chicken was mentioned. The National Legislature wanted to ensure that the CoC would not prevent them from accepting chicken. But he mentioned that if we want the law to not apply to them (the Legislators) but only to the Executive then they could look at it, quickly. This was in 2009.

Well, until the end of the implementation of the PRS in 2011, nothing was ever heard of the CoC. It was technically dead.

Remember that not only did the PRS require that a CoC be enacted but Article 90 (c) of the 1986 Constitution stipulates that the Legislature shall prescribe a Code of Conduct (CoC) for the purpose of ensuring that public officials don’t engage in conflicts of interest or act against public policies. This was a constitutional requirement but who cares, right?

But when the Central Bank of Liberia’s Governor, Joseph Jones, started behaving in manners that no other central banker, the world over, had ever behaved, then the “system” or political elites got terrified. Governor Jones had been encouraged by Theo Bettie (the late) to run for the presidency. To achieve this end, Governor Jones needed to start participating in ‘gowning ceremonies’ and national-wide tours and providing loans to various interest and political groups.

With Governor Joseph Jones presiding over the nation’s coffers, the ‘system’ needed a way to put him in check. Remember, at this point, the Vice President (Joseph Boakai) intended to run to replace his boss; Speaker Tyler was also considering a potential run; and Nuquay and other legislators were organizing a political party, the PUP. These powerful forces had to figure out a way to prevent Governor Jones from having an unfair advantage over them.

The first step that the system took was to amend the Central Bank of Liberia’s Act of 1999. On February 13, 2014 or thereabout, the National Legislature made several amendments to the CBL Act of 1999 but the two (2) important provisions were: (1) the Governor should not run for political office but he/she wanted to run for office, he/she should resign three (3) years prior to the elections; and (2) that the CBL can only ‘issue’ banknotes or mint currencies upon approval of the National Legislature.

With the passage of this amendment, the ‘system’ believed that it had Joseph Jones exactly where it wanted him. Well, the Governor had a well-oiled political machinery and before long, the commentaries on national radio and within legal circle was that the amendment would not affect Governor Jones because it did not exist at the time he took the job. It might be for the next governor that comes after him.

Wow! The ‘system’ then needed to do something else and boom: The Code of Conduct.  The ‘system’ decided that it would dust the CoC and quickly enact it into Law and this time it could catch Governor Jones. Passing the CoC was an easy thing because it protected the political interests of the legislators who were coming up for re-elections in 2017. The CoC would ensure that cabinet ministers (deputy and assistants) would not have an advantage over sitting lawmakers. For sitting lawmakers, their major challengers were those in the cabinet because they might have the financial means to put up a fight. Well, with all the rational self-interests aligned, on March 4, 2014, the CoC was enacted.

Remember, this a law that had been sitting in the Legislature since 2008 but because its passage could potentially prevent a sitting a lawmaker from accepting chicken, it never went anywhere. But now that it seems that Governor Jones might become President or that sitting lawmakers might meet stiff political fight from cabinet ministers, the CoC becomes easy to pass.

Because the law itself was not a product a deliberative lawmaking process, a very flawed instrument was created. Just reading the Law provides several difficulties in its implementation. For example, when do we know that someone had the ‘desire’ or ‘intent’ to run? Then the law complicated itself further when it talked about the office of the Ombudsman. It does not say how many persons will constitute this office. Will he/she or they be confirmed by the Senate? How long he/she or they serve? It says nothing! Some legal minds tried to put together an Executive Order to clarify those issues, but it was late in the day and so some smart legislators decided to intervene under the pretext that they will fix the law. Well, I am not sure they ever did and now we have another election coming up.

Actually, I think the law was passed under the wrong circumstances. The CoC should be a very important instrument and was not to be used to go after a particular person. It was wrong. The system should have told Governor Jones that he changes his mode of operations and behave as a responsible central banker by being politically non-aligned or disinterested or the system requests and accepts his resignation. Though he had tenure of office, but he could be removed especially given the way he had been comporting himself. No central bank governor engages in open political activities the way Governor Jones did. But that was no reason for the system to enact a law that targeted him. Now we have a Law that has become an embarrassment, so to speak.

That’s my take…