JURIST - Dateline: LIBERIA: Destruction of Documents Undermines Common Law System

Adrienne Lester, Pitt Law '11, interned at the Honorable House of Representatives for the Republic of Liberia this summer...

West Africa evokes images of Juju child soldiers, dismembered limbs, and volatile men in short-sleeved safari suits with aviator sunglasses. When I had the opportunity to intern with the House of Representatives for the Republic of Liberia in the summer of 2009, I accepted with a mixture of excitement and uncertainty. However, planning for an internship in the world’s fourth least-developed nation (as determined by the UN Development Index) proved to be quite an endeavor unto itself. There are few resources about Liberia online or in print, and there is even less information coming out of the country.

Liberia has been at war for nearly two decades, a fact I knew prior to my departure but which was resoundingly affirmed within moments of my arrival. However, the most significant casualty of the violent civil war has been the legal system, founded on common law tradition. Due to the physical destruction of valuable documents, including statutes and court decisions, the judiciary cannot utilize what would otherwise be its greatest tool for sustaining the rule of law: precedent. This situation severely threatens the consistency and reliability of the law within Liberia.

The civil war involved intermittent fighting from the Doe Regime of 1980 up to the interim government established in 2003. During this time, Liberia experienced a series of autocratic regimes with corresponding rebel forces. This period was characterized by horrific ethnic violence, rapidly-shifting political dynamics, and the wholesale collapse of the rule of law. The event with potentially the largest impact on the legal system of Liberia was the looting and destruction of the archives of the National Legislature. As a result, documents are either completely missing, or as with the Culture and Tourism statutes, only partially intact.

A major complication of my internship was determining where genuine gaps in the law exist, because Liberia lacks a centralized archival system. Currently, there are at least four archives in Liberia: The House of Representatives, the Senate, the Ministry of Internal Affairs, and the University of Liberia. There is no central body which has cataloged the remnants of Liberian archives or which tracks the loaning of documents. Also, there is no internal organization of documents within the archives, leading to stacks of papers and books strewn about on the floor. Another, perhaps obvious, observation is that electronic management of governmental documents is non-existent. Electricity from generators is inconsistent and computers are too expensive for the government of a country staggering under $1.8 billion in debt - 123% of the GDP.

Allegations circulate regarding the smuggling of forged statutes into the archives for socio-political gain. With the post-conflict limitations, it would be difficult to determine the legitimacy of the entire archive, let alone the fallibility of one document in particular. Additionally, this scenario further undermines the legitimacy of the Liberian government in the minds of the people, because these stories are covered regularly in the Liberian press. Thus, when statutes and case law are applied in the courts, there is a sentiment that the laws are unreliable and may serve the personal, corrupt interests of others.

A common solution in post-conflict countries is to use laws from other, established legal systems. In Liberia, US law serves a gap-filling function: if there is no Liberian precedent on point, US law is applied. While both countries have common law legal systems, they have major differences in governmental structure and culture. Thus, there are dangers in copying without understanding the cultural foundation, legislative history, or precedent. The resulting law may be ineffective in regulating behavior, and may remain on the books without being enforced.

Working in the Liberian context necessitated creative legal research and drafting. For instance, I was instructed to draft an amendment to the definition of Sexual Harassment in the Code of Conduct for all Public Servants for the Republic of Liberia. However, instead of confining research to the Penal Code's sections dealing with rape, I had to broaden my the scope to include international legal sources. Definitions from African nations, the European Union, the United Nations, as well as the United States were examined and synthesized. The result was a definition that took advantage of established legal orders, but was also sensitive to the Liberian cultural context.

Despite obstacles to precedent and legal research, post-conflict recovery in Liberia boasts a number of accomplishments. Most notably, the elections of 2005 produced the first democratically-elected female head of state in Africa - Her Excellency Ellen Johnson Sirleaf. A more recent milestone, and one I experienced during my internship, was the release of the official report from the Truth and Reconciliation Commission. This report represents the next step towards accountability for war crimes committed in Liberia. As the country prepares for its second democratic election in 2012, the burgeoning spirit of democracy in this coastal African country will be tested, and hopefully prevail, creating fresh images of West Africa.

Sources:

Jeremy I. Levitt, The Evolution of Deadly Conflict in Liberia 194- 202 (Carolina Academic Press 2005).

Ellen Johnson Sirleaf, This Child Will Be Great 202-5 (HarperCollins 2009).

Code of Conduct for all Public Servants for the Republic of Liberia (pending legislation, House of Representatives for the Republic of Liberia, 2009).

Photo Credits: Adrienne Lester