The opinion of the court was delivered by: Chin, District Judge.
I provide summaries of (a) Liberia's government, its recent
civil war, and its judiciary; (b) the underlying facts in this
case; and (c) the prior proceedings in this case, including the
proceedings in Liberia.
1. The Government and History of Civil War in Liberia
The nation now known as Liberia was originally established by
the American Colonization Society, an organization that was
founded in 1817 to resettle freed American slaves in Africa. The
first such emancipated slaves settled in Liberia in 1822. A
constitution modeled on the United States Constitution was
adopted, and Liberia became an independent republic in 1847.
The original 1847 Constitution was amended in 1976 and again in
1986. In many respects, the government established under the most
recent amendments mirrors the United States Government. Indeed,
under the 1986 Constitution, Liberia has a unitary government,
consisting of three separate, distinct, but coordinate branches —
a Legislature, an Executive branch, and a Judiciary.
From 1980 to 1989, the Liberian government was headed by Samuel
Kanyon Doe. Doe's regime was marked by corruption, human rights
abuses, and, by the late 1980s, rampant inflation. In December of
1989, a group of dissidents began an uprising and took over the
government of Liberia. Doe was executed by a group of rebels on
September 12, 1990. His murder marked the end of constitutional
government in Liberia and the beginning of a seven-year civil
war, during which the country was consumed by violence.
By 1991, Liberia was effectively ruled by two governments. One
government controlled Monrovia, while a rebel group controlled
the remainder of the country. An attempt to reach a peace accord
in 1992 proved unsuccessful, and in September 1992, hostilities
broke out. Boys as young as eight years old were recruited to
fight, and civilians who refused to join the rebel forces were
executed. Monrovia was held under siege, and thousands of
civilians were killed in the crossfire.
In August of 1994, the leaders of the various factions met
secretly to discuss a timeline for disarmament and the
institution of the 1993 Council of State plan. There was another
brief cease-fire in December of 1994, and finally, a formal peace
accord was signed on August 19, 1995. In September of 1995, a new
government was organized, and the Council of State was
tentatively established. Its authority, however, was tenuous.
Moreover, disarmament was never achieved.
Hostilities flared up again in April of 1996. An uprising was
sparked in the outskirts of Monrovia, and quickly spread into the
capital city. Street fighting erupted in the city, accompanied by
widespread looting, and, eventually, the new government
collapsed. Another cease-fire was declared in May of 1996.
The restoration of peace and democracy in Liberia began in
1997. An election was held in July of 1997, the first democratic
election in Liberia in 12 years. Charles Taylor was elected
President, garnering 75% of the votes, and the newly elected
government was inaugurated in August of that year. At the same
time, the 1986 Constitution was reinstated by a joint resolution
of the National Legislature.
Commentators have observed that, between 1989 and 1996, as many
as 200,000 people were killed in Liberia, and that well over one
million Liberian citizens were left homeless as a result of the
civil war. Approximately 750,000 Liberians fled the country
seeking refuge in other countries. Other commentators have
reported that the fighting destroyed much of Liberia's economy,
that the unemployment rate during the hostilities was as high as
80 to 90%, and that during the period of civil war in Liberia,
corruption was rampant in all government organizations.
Pursuant to the 1986 Constitution, the judicial powers of the
Liberian government are vested in the Supreme Court and such
subordinate courts as the Legislature may establish. The Supreme
Court consists of one chief justice and four associate justices.
Justices and judges are nominated by the President of Liberia and
confirmed by the Liberian Senate. Once appointed, a justice or
judge has life tenure, unless removed as a result of impeachment,
resignation, or death.
After the civil war began in 1990, however, the provisions of
the 1986 Constitution relating to the judiciary were no longer
followed. Because the government was undergoing upheaval,
justices and judges were no longer nominated by an executive
authority, and were no longer confirmed by an elected legislative
In 1992, the Supreme Court was reorganized. The warring
factions agreed that one faction could appoint three justices to
the court, including the chief justice, and that the other could
appoint two justices to the court. In his First Sworn Statement,
H. Varney G. Sherman, a Liberian attorney, former president of
the Liberian National Bar Association, and counsel to Citibank's
branch in Liberia ("Citibank Liberia"), states that it was the
head of each of these two factions who made the appointments to
the court, and that, during this period, "it was common knowledge
that members of the Supreme Court served at the will and pleasure
of the appointing powers." (First Sworn Statement of H. Varney G.
Sherman dated June 2, 1998 ("Varney Aff. I") ¶ 5).
The portrayal of the Liberian judiciary in Varney's First Sworn
Statement is consistent with that contained in the U.S.
Department of State's Country Reports on Human Rights Practices
for Liberia for the years 1994-97. For example, the 1994 report
stated that all levels of the court system were functioning
"erratically," and that "corruption and incompetent handling of
cases remained a recurrent problem." (Def.'s Ex. 6). This report
also stated that one of the improvements in the judicial system
from the previous year was the implementation of a requirement
that "circuit court judges be law school graduates." Id.
Finally, the 1994 Report stated that, since 1991, legal and
judicial protections in the part of the country controlled by one
of the factions were "almost totally lacking," and that in areas
controlled by other factions, "there was little pretense of due
process," and that "swift justice was meted out by faction
The 1995 Report depicted an equally bleak picture of the
Liberian judicial system. This report stated that, in 1995, "the
judicial system continued to be hampered by inefficiency and
corruption." Id. The report stated further that, "because of
the war, the judiciary does not function in most areas of the
country," and that where it does function, "it is in practice
subject to political, social, familial, and financial suasion."
Id. Furthermore, while the Constitution theoretically provided
for due process rights, "[m]ost of these rights . . . were
ignored in practice." Id. Similarly, the 1996 Report stated
that "the judicial system, already hampered by inefficiency and
corruption, collapsed for six months following the outbreak of
fighting in April."
Finally, it appears that even after the conflict ended,
problems with the judicial system persisted. Indeed, the 1997
Report stated that the Liberian judiciary was still "subject to
political influence, outside pressure, and corruption" and
continued to be subject to "political, social, familial, and
financial pressures." Id. The report stated further that,
"[e]ven after the elections, the judiciary did not function in
most areas of the country due to lack of infrastructure," and
that due process rights continued to be "ignored in practice."
In 1997, in anticipation of the first democratic election in 12
years, the leaders of the various factions acknowledged that the
membership of the Supreme Court had been based on factional
loyalties since 1992, and agreed that any specter of factional
loyalties would have to be eradicated to enhance the credibility
of any electoral dispute that might be decided by the Supreme
Court. Convinced that the international community would not
accept a decision of the Supreme Court on any electoral dispute
unless the membership was changed and the process for the
selection of new justices reformed, the Council of State
organized a new Supreme Court. The members of the court were
dismissed, and new members were appointed based on
recommendations by the Liberian ...