UNITED STATES MILITARY ACADEMY
Access to Justice and the Interaction between the Formal and Tribal Legal
Systems in Liberia
Research Summary: Point-to-Point 2013 visit to Liberia
5 July 2013
By
LTC Walter E. Narramore
Assistant Professor
Department of Law
West Point, NY
Narramore, W.
Introduction
I visited Liberia with Cadets Jared Helsop and Mallory Kulungowski from 18 June to 6
July 2013 to study rule of law initiatives and activities in the country. The program, called
Point-to-Point gives the cadets the ability to shape their research on areas in which they are
interested within the broad topic of rule of law. During our time in country we focused primarily
on problems that hinder access to justice, and the interaction between the formal legal system
and the informal, or tribal, legal system. The purpose of this writing is to summarize our
significant findings, from my point of view, and offer potential recommendations on how Liberia
might remedy some of these issues, or alternatively, offer advice for future research.
The Liberian Formal Legal System
Liberia faces significant access to justice issues. We interviewed five magistrate and
circuit court judges, attorneys from the Public Defender’s Office, and various attorneys from
USAID, UNMIL, and other NGO’s . On a positive note, they all repeated a similar assessment
of the most significant problems. This is positive because there seems to be agreement on the
biggest issues, and for some of them Liberia is making a concerted effort to improve the
situation. First, I should provide a quick synopsis of the problem using a standard criminal case.
Suppose a girl in an outlying county is sexually assaulted and wishes to obtain some punishment
or justice from the perpetrator.
In most countries, the victim would first call the police. The same is true in Liberia
except that if the victim is in an outlying county, the police may be far away and not have the
resources to travel to the scene of the crime. Even if police respond, they are not properly
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trained in conducting investigations and collecting evidence and they may further persecute the
victim based on traditional ideas of the roles of women. Furthermore, there are very few medical
personnel available who are qualified and trained to conduct a sexual assault examination.
Assuming an investigation does occur and some evidence is collected, the victim still faces many
hurdles. The closet court to her will likely be a magistrate court. Assuming she can get to this
court, she may find that neither the magistrate judge nor the prosecutor are actual attorneys,
much less have access to the law. Secondly, neither the magistrate nor the police have adequate
resources, so she may have to pay the magistrate court to hear the case or the police to bring the
defendant to court. This is technically corruption, and there certainly is corruption in Liberia that
is based on avarice, but it is just as likely to be done by the officials out of necessity because they
truly do not have funds to cover their operating costs. If she overcomes these barriers, she will
find that although the magistrate court can conduct a preliminary hearing, its jurisdiction is
extremely limited – much narrower than a simple division of misdemeanors and felonies – and
the law requires the magistrate judge to transfer her case to the circuit court that oversees that
jurisdiction. This will likely require significant travel for the accused and more payments to
police and government officials, a significant burden for a country whose citizens live largely
below the poverty line. Furthermore, Liberia’s record keeping system is poor and many court
personnel are untrained, resulting in the loss of case files and evidence during the transfer
process.
Even if the victim does continue to pursue the case she will find that 90% of cases at the
circuit court level do not get resolved. A variety of problems produce this shocking figure,
including a lack of capacity by the police which leaves prosecutors without any evidence to
present, and the lack of cooperation from witnesses; in addition to the cumbersome jury system,
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the limited court term, the appellate rights of accused individuals, and the jurisdictional rules
which forces the circuit courts to hear most cases. The reality is that the formal Liberian system
of law does not provide justice for most people, so most people do not even try. And it would be
a mistake to conclude that things are much better in urban areas. While the distances between
the police and the courts are less and people are generally more educated, the same problems in
the law and with the capacity of the police create similar roadblocks for city dwellers. The civil
court system is not much better.
The Informal System
This is where the informal system comes into play. Liberia’s legal system recognizes
both a formal justice system and an informal system as part of Liberian law. The informal
system comes from the tribal practices that existed for hundreds of years prior to the
establishment of the formal state. Liberian law, however, limits the use of the informal system to
small disputes and very minor crimes. Unfortunately, the reality is different than the law. With
so many impediments to achieving justice in the formal system, people naturally turn to the
informal system to resolve their problems. This system, is faster, cheaper, and more available to
the average Liberian. It has its own problems, however. Chief among them is that the traditional
system often relies on ancient values and even mystical beliefs that are contrary to the law and
modern understandings of justice. For example, traditionally women are considered the property
of their husbands and have no independent authority including the authority to inherit property.
Modern Liberian law, consistent with most modern governments, makes women equal to men
and able to inherit equally and many times before all others if the women is the spouse of the
deceased. In another example, many tribes practice a tradition known as sassy-wood in which a
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defendant or an accuser is made to do some test, such as drink poison. If the person survives he
or she is considered to be under the protection of the gods and therefore must be telling the truth.
Recognizing the inadequacy of the formal system and realities of the use of the informal systems,
many organizations such as the Carter Center and USAID are working on training tribal chiefs,
and community leaders on the law and how to properly mediate disputes.
This training provides one level of reform designed to improve the informal system.
There are several other ideas for reforming the formal system, some of which Liberia is actively
pursuing and some of which are probably infeasible in the near future due to resource
constraints. I will mention the ones that are actually possible first, followed by ones that might
be reserved for the future.
Recommendations for Change
It would be very difficult for Liberia to eliminate the many roadblocks to justice in the
short term, but there are things that Liberia can do right now to make a significant difference.
Specifically, it can take actions that do not require significant resources to reduce the backlog of
cases in the circuit courts. There is currently a bill that the president recently signed into law, but
has yet to be implemented, that increases the jurisdiction of the magistrate courts so that they can
hear more cases. This will relieve the circuit courts from having to hear as many cases as it
currently does. Unfortunately, it took us two weeks of inquiring about this bill before we were
able get a copy and found out that the law had been passed, which raises additional issues
concerning access to the law that I will not address here. The legislature also passed a law to
reform the jury system, which should make it fairer and more nimble. Both of these new laws
should make a difference, but Liberia will need to implement them by training judges and
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lawyers on the new rules and resourcing the changes (i.e. provide money to create a Jury office
provided in the latter bill).
There are also other things the legislature should also do that will cost nothing (or maybe
the judiciary can do some of these unilaterally). First, they should review and adjust the court
terms for the circuit courts. Circuit courts currently sit in four terms per year of 42 days each.1
The purpose of this four term system in unclear and it is administratively burdensome and slows
down cases because courts must stop and reset as each term comes to an end. The legislature
should reduce the number of terms to two at most, and potentially one per year, which will allow
courts to run continuously most of the year. The next one might be more difficult depending on
the constitution and the Supreme Court’s interpretation of the rights it provides, but the
legislature should reduce the right to jury trial to cases where the maximum penalty is more than
one year.2 Additionally, it should reform appellate rights to reduce the number of automatic
appeals going from the magistrate court to the circuit court and from the circuit court to the
Supreme Court. Lastly, either the judiciary or the legislature should adopt rules that permit
judges to hear more than one case at a time. Judges should have discretion to schedule their
dockets according to the complexity of the individual cases. These provisions together would
cost Liberia very little and have significant impact on reducing the case load at the circuit court
level, which will increase the access to the justice for Liberian citizens.
Other more expensive reforms are needed over the long term, although I recognize that
Liberia is significantly constrained by available resources and it is not helpful to recommend
steps that the country does not have the means to take. I offer these recommendations as steps
1
We received conflicting information on how many terms exist for each circuit court. One circuit court judge for a
specialty court that focuses on sexual assaults said that her court only has two terms per year. More research needs
to be done on the term requirements for circuit courts and whether the requirement is set by the judiciary or by law.
2
More research needs to be done on jury trial right in Liberia and what it requires versus what the Liberian system
provides.
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that Liberia will have to take at some point in the future to truly produce a fair system of justice.
First, judges, police, and court personnel need better training and better resources. Liberia is
obtaining some training for its police and court personnel with the assistance of international
organizations such as the United Nations. But more needs to be done. I have already mentioned
the lack of training in the police department and the result, but this only one facet. For example,
court stenographers record the record of trial on either a standard computer or even a type writer
in some courts. This significantly slows down trials as judges and court attorneys have to
constantly pause so the clerk can type the proceedings. Liberia needs trained court stenographers
with the appropriate equipment. This is not to mention the need for additional prosecutors,
defense attorneys, legal resources, and means to secure witness cooperation. As to legal
resources many attorneys and judges are practicing without adequate access to the law of
Liberia, and thus without accurate knowledge of the law. In a perfect world the government
would provide computers and internet access in all court houses and put Liberian law online so
that attorneys can search it and access it easily. Lastly, although it will be expensive to create the
additional judicial positions and provide facilities for them, Liberia must, at some point, create
intermediate appellate courts. Currently, the only courts are the magistrate courts, circuit courts,
and the Supreme Court. Add this to the fact that all criminal defendants have a right to appeal,
and this means that the Supreme Court and circuit courts are overwhelmed with appeals from
trials at the lower levels. The system cannot legitimately operate this way and serve its role in
the Liberian government. The judiciary needs intermediate appellate courts to hear the majority
of appeals from the circuit courts,3 leaving the Supreme Court to hear appeals from the
intermediate courts under some type of discretionary review standard as opposed to the current
3
Senator Jewel Howard Taylor stated in an interview that she has drafted a bill to create intermediary courts that
will sit at the four judicial hubs that are being created throughout the country. She is currently seeking feedback on
this piece of legislation from various organizations and plans to introduce it on the senate floor sometime next year.
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method. Although we did not focus on the Supreme Court, it seems that the highest court will
never operate effectively until this step is taken.
These are only a few of the problems facing the Liberian judicial system. Although we
conducted many interviews that touched on it, we did not focus on problems with the system that
implicate defendants’ rights. For instance, Liberia has a significant problem with pretrial
confinement. Prisoners languish in jail for months, or even years, waiting for trial. Furthermore,
there are not enough public defenders to protect the rights of accused persons, including those in
pretrial confinement or prosecuted at the magistrate level, nor do the public defenders have the
resources they need to do their job. While Liberia has a long way to go to produce a truly just
system of which it can be proud, it is moving in that direction. Time and again, we encountered
judges and officials who were passionate about their job, recognized the problems with the
system, and were determined to do something about it. They provided hope that over time the
system will improve to provide better access to justice for all.
Future Research
Future trips to Liberia might focus on Liberian defense attorneys and how accused
persons obtain an adequate defense and on whether the system does enough to protect their
rights. Alternatively they might focus on the jury trial system by evaluating the extent of the
right to a jury trial, how it is executed and how it should be modified. Lastly there is a need to
examine the prison system to include an in-depth look at pre-trial confinement.
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Activities and Interviews by Day
Monday
Tuesday
Wednesday
Thursday
18 June
-Departed JFK
19
-Arrived in
Country
20
-Driving/
Walking tour of
Monrovia
24
-Drove to Kakata
1 ½ hours
outside
Monrovia to
watch Legal
Trng of Women
Community Ldrs
25
-Interview w/
Rep. Duma
-Observed House
Legislative
Session
-Interview w/ Dr.
Julia Richards,
USAID
Education Team
Leader
26
- Interview w/
Mr. Dan Terrel,
USAID ROL and
Governance
Team Leader
-Interview w/
Judge Jallah,
traffic court
-Ducor Hotel
1 July
-Interview w/
UNMIL LJSSD
-Observed Cir.
Ct proceedings
-Mtg with Dir. of
Bureau of Pris.
-Obs. hearing in
a sexual assault
case
-Interview w/
Cir. Ct Judge
Clinton-Johnson
2
-Prison visit
aborted
-Observed
Senate
Legislative
Session
-Writing/
Research time
-Obtained bills
from Legislature
3
-Interview w/
Deputy Director
for Patrols at the
Police Nat’l HQ
-Interview w/
Senator Jewel
Howard Taylor
-Embassy 4th of
July Party
27
-Interview with
Mag. Ct Judge
Worries in West
Point
-Observed Mag.
Ct session
-Interview with
WP Comm.
-Interview w/
Chief Public
Defender for
Liberia
-Mtg with INL at
the embassy
4
-Interview w/
police
investigators at
local police
station
-Mtg with Dean
Jallah at the UL
law school
-Writing/
Research time
9
Friday
21
-Mt w/ DAO
-Interview w/
Finlay Kungar,
Liberian
Attorney for
USAID
-Interview w/
Cllr. Gbabea at
the Carter Center
-Research at UL
Law Library
28
-MOJ visit
-Interview with
Mag. Ct Judge
Peabody in
Paynesville
-Interview with
Cir. Ct Judge
Juba
5
-Administrative
Wrap-up
-Departed
Liberia