He’s Got the Law (Literally) in His Hands

Six years after a civil war that killed 250,000 and displaced hundreds of thousands more, justice is at the top of Liberia’s list of needs. But in this small West African country of 3.5 million, the problem isn’t a lack of courtrooms or trained lawyers. Liberia is wanting for the actual laws themselves. The country’s legal code doesn’t exist in print except for a few mismatched volumes here and there, sequestered in incomplete sets in libraries in the capital, Monrovia. And right now, as far as legal advocates can tell, even Liberia’s national parliament doesn’t have a full copy of the law.

Why not? Because the few volumes that do exist have been quietly copyrighted — and subsequently held ransom — by the man in charge of Liberia’s legal reform. Across the country, lawyers, courtrooms, and even the government are operating blindly; it’s impossible to be certain if they are following a legal code they don’t have.

The man who has literally taken the law into his own hands is Philip Banks, appointed by President Ellen Johnson Sirleaf as chair of the country’s law reform commission. He served twice as Liberia’s justice minister, first during an interim government in the 1990s and again under Johnson Sirleaf beginning in 2007.

In between his stints as justice minister, Banks led a team of lawyers, a group called the Liberia Law Experts, to codify the country’s newest laws. The project, which picked up where an earlier pro bono effort by late Cornell University professor Milton Konvitz had left off, won just over $400,000 in funding from the U.S. Department of Justice (DoJ), according to e-mail exchanges between Banks and key legal players, obtained by Foreign Policy. Konvitz had codified laws up to 1978, just before Liberia plunged into 20 years of sporadic conflict. Those volumes list the copyright as belonging to the government of Liberia.

Defending himself in an interview with FP on Oct.27, Banks says he numbered, bound, and indexed the newer laws — intellectual work that he claims as his original property. Without his efforts, he claims, Liberia’s laws would exist only in loose-leaf pamphlets and would likely be lost. Banks says the DoJ funding wasn’t enough to cover his costs. So when DoJ declined to give him more, he asserted a claim of copyright on the work, according to an explanation of the issue he sent by e-mail to a justice sector consultant in 2006. It’s a claim he has appeared willing to relinquish several times for sums between $150,000 and $360,000, according to the e-mail exchanges, which were obtained by FP.

But Banks sees the copyright as an altogether different tool. "These are resources that you’ve had to expend in putting all of this together, and the question is, should you be compensated? I hold the view that you should," he asserted in his interview with FP. "And for folks that have said, no you shouldn’t, I’ve said to them, go and get your loose-leaf." DoJ, meanwhile, couldn’t find records of its agreement with Banks, but a spokesperson says it would be "highly unusual" for the department to have agreed to let Banks retain the copyright.

Banks claimed during the interview that he is willing to give up the copyright for "zero," but that others in his team of Liberian lawyers want more money. Critics in Liberia say Banks is the problem. "There’s a lot of blame and name-calling and passing the buck," says Anthony Valcke, a British lawyer working in Liberia on rule-of-law issues.

Either way, the consequences of the dispute are being felt across Liberia, whose courtrooms and parliament are operating without copies of the law. "Look at all the work that’s being done in the government, anti-corruption, legal aid, NGOs, all those who work as watchdogs over the acts of the legislature. None of these organizations — none of them — have copies of the laws," says Valcke. "It’s so fundamental to a democracy that it’s unbelievable that this situation has been allowed to exist for so long."

The problem is an open secret in Liberia, where the current justice minister has publicly called the availability of the law a priority, and the minister of labor, who used to work in the Justice Ministry, has often derided the country’s lack of access to its own legal code. The U.S. Agency for International Development estimates that $13 million is poured into rule-of-law assistance programs in Liberia each year, even as the law itself is lacking. Several of those programs’ personnel have pressed Banks on the issue. When those attempts proved unsuccessful, they’ve instead worked around his copyright claim. This summer, the United Nations Development Program bought and donated 15 sets of the disputed volumes so that rural county prosecutors could have access to them. Individual volumes from an original run of 100 are scattered across libraries and offices — or have been lost. No one really knows. Effectively, the volumes are unobtainable.

Banks’ group, Liberia Law Experts, is currently negotiating to sell the copyright to the Liberian government. Those involved won’t name the asking price, but Varney Sherman, a former presidential candidate who worked on the project with Banks and is party to the negotiations, says the "small fee" is "closer to $100,000" than $360,000. (The entire government’s 2007-2008 budget was $207 million, according to the Liberian Finance Ministry.) President Johnson Sirleaf said in an Oct. 12 interview that she is willing to entertain compensation for "whatever they may have spent out of their own resources," but insists, "Rightfully, those copyrights belong to the government." She hopes to have the situation sorted "within a year."

Meanwhile, the dispute slows down legal reform efforts. Judges, law students, and legal scholars make arguments based on old laws, often toting to court 20-year-old tattered law books purchased at a time when you could actually buy law books in Liberia. But a lot has changed in Liberia since those pre-civil war laws were drafted. "We have a lot of laws that are duplicative, that are conflicting, and that has to be sorted out," Johnson Sirleaf acknowledged in her interview with FP.

But sorting out the overlap is difficult to do without access to the law books. In a paper written a year before he became justice minister for the second time, Banks acknowledged that variation in the laws undermined business, development, and human rights in Liberia. The solution? He recommends the government buy the copyright to materials published by "private Liberian initiatives." Banks never acknowledges his financial stake in that recommendation in the 83-page paper, written for the government body that oversees the Law Reform Commission he now chairs.

As the negotiations drag on, the law is disappearing. "We’re going to lose legislation, literally," says John Hummel of the Carter Center in Liberia. "When this is all resolved, someone is going to say, ‘We passed this one law two years ago about arson; where is it? I don’t know.’"