Civil society in Liberia is running out of options as FrontpageAfrica’s Managing Editor health deteriorates, and mediation efforts, so far, have failed.
But, I like the well-reasoned position on the FrontpageAfrica issue taken by the Alternative National Congress (ANC) and some of the lawyers who apparently lead that new political party: “…We are aware that Mr. Sieh has said he does not trust the Supreme Court and that is why he did not perfect his appeal of the lower court’s damage award—a decision by him that, unfortunately, allowed the High Court to affirm the lower court’s award, without formally hearing Mr. Sieh’s side of the case. Even if Mr. Sieh has reasons—given his past experiences with the judicial system—not to trust the Supreme Court, we believe that it will serve his interest and the long-term interest of press freedom to have his lawyers take up his detention and the closure of the paper before the Court”.
(See FPA, August 23, 2013, online edition)
So, according to ANC, FPA’s Publisher can try with a new lawsuit (a “writ of mandamus”) challenging his incarceration, perhaps on due process grounds. Indeed, his incarceration due to his inability to pay an exorbitant sum of money is truly “shocking to the conscience”. I also wonder whether the Publisher was ever put on any kind of notice that his personal inability to pay civil damages could result in his incarceration. I doubt it, and that too, may be grounds for a due process challenge.
However, the ANC’s suggested “writ of mandamus” may be a tall order, because under Section 44.71(2)(e) of the Liberian code, imprisonment is mandatory where a defendant “cannot or will not” satisfy a full judgment in an “injury to reputation” case. So, it does not appear that the trial court abused its discretion in ordering the Publisher’s jailing. Arguably, the Court had no choice, given the mandatory language of the statute. By operation of the statute, the Court was mandated to imprison the Publisher. A writ of mandamus to force that Court to reverse itself is unlikely to be successful. But, the denial of such a writ might be appealable, and such an appeal could be a way to get back to the Supreme Court.
Now that he has been rushed to the hospital, FPA’s lawyers may also want to consider moving for the Editor-in Chief’s release on compassionate health grounds.
An appeal to ECOWAS is really not the way to go. The facts just do not support any argument in favor of ECOWAS’ jurisdiction: Chris Toe resigned in 2009 and was out of government when the supposedly libelous FPA article at issue appeared in 2010. Toe’s private lawyers filed a civil lawsuit in May 2010. FPA’s private lawyers answered and were apparently instructed to reject Toe’s comparatively meager $25,000 settlement demand. A Liberian jury – and not a Circuit Court judge — eventually found FPA guilty of libel and assessed a sum of $1.5 million against FPA in July 2013. Thereafter, FPA filed a motion for a new trial. The trial court denied the motion, and FPA then filed appeal papers with the Liberian Supreme Court, but refused to follow through on the appeal because its Editor-in-Chief believed that the Supreme Court would not be fair. That is not, as Bai Gbala recently wrote, a mere “technicality”. It is an act that deprived the Supreme Court of jurisdiction and an opportunity to hear FPA’s side of the story. (See New Dawn, August 27, 2013).
So, there is no evidence of the executive arm of the government being involved in this civil lawsuit between private Liberian persons. Indeed, the Liberty Party, led by Cllr. Fonati Koffa, one of FPA’s original lawyers, seems to agree that there is no state action in this case: “While we hold it true that the case is one that does not involve the government as a defendant or a plaintiff, as is being argued by some government functionaries, it reveals, for all practical purposes and intents, a serious reversal of the gains that have been made to lift press freedom to a higher ground, even with government’s endorsement of the Table Mountain Declaration”.
(See FPA, August 22, 2013, online edition)
The planned ECOWAS appeal will be dead on arrival unless FPA can prove that the government was involved in the litigation and that the government misused the courts to obtain an outcome. “State action” is a necessary element for a human rights claim, and it does not seem to be present here. Now that he has been rushed to the hospital, FPA’s lawyers may also want to consider moving for the Editor-in Chief’s release on compassionate health grounds.
2 or 3 preeminent persons from civil society and/or religious groups really need to step forward and assist in settling this matter privately, if the litigants’ lawyers can’t do it. Hopefully, the Publisher can be persuaded to end his hunger strike while this new legal process runs its course. If not, I hope he at least agrees to be monitored by qualified medical personnel while he pursues his hunger strike action and his health continues to deteriorate.
The government may not be involved, but this turn of events is not a good look for Liberia. Private citizens will have to help fix this problem, as private citizens helped to create it.
About the Author: Ambrose Wotorson, Esq. Is an attorney admitted to practice in New York since 1992, but not admitted to practice in any Liberian courts, yet.