I. INTRODUCTION
The recent removal of Representative Yekeh Kolubah from the Honorable House of Representatives of the Republic of Liberia has ignited a constitutional crisis of the first order. When a member of the Legislature is expelled in alleged defiance of a Justice’s stay order, and without the barest rudiments of due process—including the right to counsel, the right to access evidence, and the right to a hearing consistent with the Constitution—the Supreme Court must act as the ultimate guardian of fundamental rights.
This article examines whether Representative Kolubah can prevail in his pending petition for a writ of prohibition, and whether, given the opportunity for due process, he may be restored to his seat notwithstanding his colleagues’ actions taken in the face of a judicial order. Drawing from the Supreme Court’s landmark opinions in Edwin M. Snowe, Jr., Speaker of the House of Representatives v. Some Members of the House of Representatives (2007), Kpaan v. Johnson et al. (2016), and the established principles flowing from Kettehkumehn Murray (by analogy on procedural regularity), this article argues that any legislative act that tramples upon constitutional due process is void ab initio and that judicial orders cannot be ignored with impunity.
II. THE CONSTITUTIONAL FRAMEWORK FOR LEGISLATIVE DISCIPLINE
A. Article 49: The Power to Expel Is Not Absolute
Article 49 of the Liberian Constitution empowers each House of the Legislature to discipline its members, including expulsion, but only upon a two-thirds vote of its members. However, the Supreme Court has consistently held that this power, like all governmental powers under the 1986 Constitution, is subject to the Fundamental Rights provisions of Chapter III. As the Court stated in Snowe v. Some Members of the House of Representatives (2007):
“This Court has consistently reiterated that not only is it vested with the constitutional authority and powers to declare any acts, treaties, statutes, decrees, customs and regulations, whether formulated by the Legislature or the Executive, found to be inconsistent with any provision of the Constitution, as ‘unconstitutional,’ but that this Court will also never vacillate to perform its sacred constitutional duty pursuant to the power of ‘judicial review.’” (Opinion, p. 5)
Thus, no provision of the Constitution—including Article 49—operates in a vacuum. Any act of expulsion must conform to the due process mandates of Articles 20(a) and 21(c).
Article 20(a) is unequivocal: “No person shall be deprived of life, liberty, security of the person, property, privilege or any other right except as the outcome of a hearing judgment consistent with the provisions laid down in this Constitution and in accordance with due process of law.”
Representative Kolubah’s right to remain a member of the House of Representatives is a “privilege” within the meaning of Article 20(a). Any proceeding to deprive him of that privilege must conform strictly to due process. The Supreme Court in Kpaan v. Johnson (2016) emphasized:
“It is fallacious for one to think that it is permissible to mostly comply with due process; [to the contrary], to be considered lawful, due process of law must be fully complied with. This Court envisions no circumstance that would warrant the suspension of an iota of one’s due process rights.” (Opinion, p. 25).
C. Article 21(c): The Right to Counsel
Article 21(c) guarantees every person “the right to be represented by counsel of his choice.” In Kpaan, the Supreme Court held that the House of Representatives violated Superintendent Kpaan’s rights when it restricted her counsel from speaking openly in her defense. The Court declared:
“The Respondent House of Representatives, by disallowing Counsellor Pearl Brown-Bull, petitioner’s legal counsel, from making statements in defense of her client, Petitioner Grace T. Kpaan, at least, or by restricting counsel from speaking openly and unrestrictedly to the quasi-judicial sitting in defense of her client, the accused, stripped Grace T. Kpaan of her fundamental right.” (Opinion, p. 26)
Here, Representative Kolubah’s counsel was not only restricted from speaking but was denied access to evidence and instructed to communicate only through the client. This is a far more egregious violation than that found in Kpaan.
D. The Rule of Law and Separation of Powers
The Constitution establishes three coordinate branches of government. As the Supreme Court affirmed in Snowe:
“The Constitution as the ultimate instrument of Liberia’s governance scheme mandates that every law or body of rules enacted by the Legislature or any action the Executive Government embarks upon, shall conform to the tenets of fundamental rights enshrined in the Constitution.” (Kpaan, p. 3)
When the Legislature violates fundamental rights, the Judiciary is not only empowered but duty-bound to intervene. Article 66 vests in the Supreme Court the final authority to adjudicate constitutional issues.
III. THE PRECEDENTS
A. Edwin M. Snowe, Jr., Speaker of the House of Representatives v. Some Members of the House of Representatives (2007)
In Snowe, the Supreme Court reaffirmed the power of judicial review over legislative acts. While the case involved internal leadership disputes, the Court made clear that the Judiciary may examine whether the House has acted within constitutional bounds. The Court stated:
“This Court has consistently reiterated that not only is it vested with the constitutional authority and powers ‘to declare any acts, treaties, statutes, decrees, customs and regulations,’ whether formulated by the Legislature or the Executive, found to be inconsistent with any provision of the Constitution, as ‘Unconstitutional.’” (Opinion, p. 5)
In the Snowe case, the Court also emphasized that the Supreme Court will not hesitate to exercise its constitutional duty pursuant to the power of judicial review. This principle applies squarely to the removal of Representative Kolubah. The House’s action, having allegedly violated due process and a judicial stay order, is a fit subject for judicial review.
B. Kpaan v. Johnson et al. (2016)
Kpaan case is the most directly applicable precedent. In this case, Superintendent Grace Kpaan was cited for contempt by the House of Representatives, denied the full assistance of counsel, and sentenced to 72 hours of imprisonment. The Supreme Court granted prohibition and set aside the contempt finding. Crucially, the Court held:
- Legislative contempt power is not discretionary: “The exercise of said power is clearly not lodged in discretion, nor is the exercise of this power left to the impulses and caprices of the Legislature.” (p. 24-25)
- Due process requires a hearing consistent with Article 44 and Article 20(a): “Article 44 of the Liberian Constitution, the grantor of the power of contempt to the Legislature, also expressly ordains that sanction on account of legislative contempt would apply only ‘after hearing consistent with due process of law.’” (p. 25)
- The right to counsel is inviolable in legislative proceedings: The House’s restriction of counsel rendered the proceedings unconstitutional.
- A Justice’s stay order must be obeyed: The Court noted with disapproval that the House continued its pursuit to detain Kpaan despite the stay. (p. 11)
- If a 72-hour imprisonment cannot stand without due process, a permanent removal from office—infinitely more severe—cannot stand either.
C. Kettehkumehn Murray (by Principle)
Although Kettehkumehn Murray (often cited for procedural regularity in administrative and judicial proceedings) does not involve legislative discipline directly, its underlying principle is instructive: any tribunal, whether judicial, quasi-judicial, or legislative when acting in a disciplinary capacity, must follow the rules it has set for itself and the constitutional minima of due process. Where a body deviates from its own rules—such as the House’s alleged failure to require individual members to answer for their votes on removal—the resulting action is void. The Supreme Court has consistently held that deviation from prescribed procedures that results in prejudice to a party cannot be countenanced.
IV. LEGAL ANALYSIS: WHETHER REPRESENTATIVE KOLUBAH CAN PREVAIL
A. The Writ of Prohibition Is the Proper Remedy
Under Section 16.21(3) of the Civil Procedure Law, prohibition lies to stop a judicial or quasi-judicial body from proceeding where it has no jurisdiction or is proceeding by wrong rules. As the Supreme Court held in Kpaan:
“The writ of prohibition is used to stop a judicial or quasi-judicial body from proceeding when and where it has no jurisdiction, but is proceeding by wrong rule.” (p. 35)
The House’s Committee and Plenary acted without jurisdiction to deny due process. By proceeding under rules that denied counsel the right to speak and denied access to evidence, the House proceeded by “wrong rules” within the meaning of the law. See also Kennedy and Johnson-Whisnant v. Goodridge and Hilton, 33 LLR 398, 407 (1985).
B. The Right to Counsel Violation Is Dispositive
In Kpaan, the Supreme Court did not require a showing of prejudice beyond the denial of counsel itself. The denial of the full right to counsel was held to be a structural defect rendering the entire proceeding unconstitutional. In this case, counsel was not merely restricted; counsel was denied the opportunity to speak, denied access to evidence, and effectively reduced to a spectator. This is a clear violation of Article 21(c) as interpreted in Kpaan.
C. The Defiance of the Justice’s Stay Order Renders the Removal Void
The Justice in Chambers ordered a stay of “all further actions.” The House’s decision to proceed with the removal while that order was pending constitutes an act without legal effect. Article 2 of the Constitution declares that any act inconsistent with the Constitution is “void and of no legal effect.” The House’s defiance of a court order, which itself enforces constitutional due process, cannot be validated.
In the Snowe case, the Supreme Court underscored that the Judiciary has the power to declare any legislative act unconstitutional. If the House could nullify a judicial stay by simply ignoring it, the separation of powers would be eviscerated. The Court will not permit such an outcome.
D. The Removal Does Not Moot the Petition
Respondents may argue that removal has already occurred, rendering the prohibition petition moot. This argument fails for three reasons:
1. Prohibition addresses ongoing jurisdiction: The House continues to assert authority to have removed him; prohibition can issue to declare that authority was exceeded.
2. The Court can order reinstatement: The Supreme Court has inherent power to restore the status quo ante. In Kpaan, the Court ordered the release of Superintendent Kpaan from detention. By parity of reasoning, the Court can order Representative Kolubah’s reinstatement.
3. Defiance cannot confer jurisdiction: If a party could defeat judicial review by acting in defiance of a stay order, court orders would be meaningless. As the Kpaan Court implied, such conduct is “inimical to a fledgling democracy.” (p. 11)
E. The Individual Voting Objection Has Merit
Representative Kolubah’s objection that each member should answer individually as to his or her vote is well-founded. The House’s internal rules, consistent with principles of transparency and due process, require that when a member’s seat is at stake, the vote must be recorded in a manner that allows verification of the two-thirds threshold. A voice vote or secret ballot without individual accountability denies the affected member the ability to challenge irregular votes. This further compound the due process violation and echoes the Kettehkumehn Murray principle that deviation from prescribed procedures vitiates the resulting action.
V. CAN HE REMAIN IN OFFICE?
Representative Kolubah has been removed from the House, but legally, he remains a member because the purported removal is constitutionally void. The proper remedy is for the Supreme Court to issue a peremptory writ of prohibition ordering:
1. That the removal proceeding and the vote of removal be declared null and void;
2. That the House of Representatives recognize Representative Kolubah as a sitting member;
3. That the House cease any further proceedings against him until a hearing consistent with due process is conducted; and
4. That the House show cause why it should not be held in contempt for violating the Justice’s stay order.
Given the opportunity for a proper hearing—one where his counsel can speak, access evidence, cross-examine witnesses, and make legal arguments—Representative Kolubah may still face disciplinary proceedings. However, he cannot be removed without such a hearing. The Kpaan Court was clear: “To be considered lawful, due process of law must be fully complied with.” (p. 25)
Thus, he can and should remain in office pending a constitutionally compliant proceeding. His colleagues’ haste to remove him in defiance of a judicial order only underscores the necessity of the Court’s intervention. The Supreme Court has the power to restore him, just as it restored Superintendent Kpaan to liberty.
VI. CONCLUSION
Representative Yekeh Kolubah has a compelling case for the granting of a writ of prohibition. The proceedings against him violated the most fundamental tenets of due process: the right to counsel, the right to access evidence, the right to a hearing before an impartial body, and the right to be free from action taken in defiance of a judicial stay order. The Supreme Court’s decisions in Snowe and Kpaan provide binding precedent that legislative bodies cannot punish—let alone expel—a person without full compliance with due process.
The House of Representatives, by proceeding with the removal while a Justice’s order was in effect, has acted not only unconstitutionally but in a manner that threatens the separation of powers and the rule of law. The Supreme Court must reaffirm, as it did in Kpaan and Snowe, that no branch of government is above the Constitution.
Representative Kolubah should prevail. His removal should be declared void. He should be reinstated immediately. And the House should be ordered to conduct no further disciplinary proceedings except in strict compliance with the Constitution and the Fundamental Rights it guarantees.
The Constitution is the supreme law. Due process is not a suggestion—it is a command. Defiance of a court order is not a path to legitimacy; it is an invitation to judicial review.
About the Author:
Cllr. Sylvester G. Lormie, II, is a Counsellor-at-Law of the Supreme Court Bar and a member of the Liberia National Bar Association (LNBA). He is a practicing lawyer and a trained public financial management professional with over 10 years of experience across public sector financial institutions. His dual expertise in law and finance distinguishes him in civil litigation, particularly in commercial, debt, tax, regulatory, land, labour, estate and trust, and administrative matters. He is a skilled drafter of legal opinions, contracts, and leases, with strong capabilities in legal research and negotiation.
