{"id":32122,"date":"2023-02-21T12:13:34","date_gmt":"2023-02-21T12:13:34","guid":{"rendered":"https:\/\/www.africa-press.net\/liberia\/all-news\/liberia-allowing-an-individual-in-legal-limbo-to-lead-our-elections-is-a-monumental-risk"},"modified":"2023-02-21T12:32:02","modified_gmt":"2023-02-21T12:32:02","slug":"liberia-allowing-an-individual-in-legal-limbo-to-lead-our-elections-is-a-monumental-risk","status":"publish","type":"post","link":"https:\/\/www.africa-press.net\/liberia\/all-news\/liberia-allowing-an-individual-in-legal-limbo-to-lead-our-elections-is-a-monumental-risk","title":{"rendered":"Liberia: Allowing an Individual in \u201cLegal Limbo\u201d to Lead Our Elections is a Monumental Risk"},"content":{"rendered":"

Africa-Press – Liberia. <\/strong><\/span>Liberia votes come 2023. There are, ostensibly, many great speeches about the necessity of free and fair elections \u2013 from the opposition, as well as the ruling party. But in truth, free and fair elections are a process \u2013 not an event. Those who are waiting for October 2023 to ensure free and fair elections will be late \u2013 as in too too late.<\/p>\n

The road to free and fair elections in Liberia is months and months of hard work. Of course, as we move toward October 2023, there is no question as to who is leading this process. For now, it is Mrs. Davidetta Browne Lansanah, the Chairperson of Liberia\u2019s National Elections Commission (NEC).<\/p>\n

And I\u2019m shocked that interested participants seem to be okay with Cllr. Browne-Lansanah as Chair of NEC. I say it seems to be okay because, so far, there are only murmurs of dissent in what is supposed to be real a case of real \u201cnoise\u201d and \u201cyo-yo\u201d over our election process being led by someone who is currently in \u201clegal limbo.\u201d<\/p>\n

Of course, the popular news reports have it that charges against the NEC Chair were dismissed. But words can be tricky. <\/b>Does the dismissal of an indictment <\/b>against the NEC Chair amount to being legally cleared?<\/p>\n

And if not, should we risk our peace and progress, however snail-paced, by having such a crucial national process being managed by an individual whose leadership represents a legal risk for graft or other illegalities, or worst yet, risk of blackmail via threat of prosecution? These are the questions I intend to unravel in this article.<\/p>\n

What Does it Mean to Dismiss an Indictment Under Liberian Law?<\/b><\/p>\n

An indictment is a written document drawn up by government lawyers (i.e., prosecutors) to the effect that they honestly believe there\u2019s available evidence that an individual has committed a crime \u2013 and, as such, they want to put the accused on trial.<\/p>\n

The best way to dismiss an indictment is to have the prosecutors admit their evidence in court, have it cross-examined and have the jury or judge decide whether it is sufficient to find the accused person guilty (or not guilty). There is an alternative, of course. The alternative is to have the government openly declare that they are dropping charges altogether. Also, many times a case may be brought to an abrupt end before the trial can start (i.e., before the evidence is presented, cross-examined, and submitted to the jury or the judge). Under Liberian criminal procedure law (and for most common law countries), there are provisions for pre-trial dismissal of an indictment. This includes:<\/p>\n

Dismissal by court, upon request by government lawyers (prosecuting attorneys<\/b>). Under this scenario, prosecutors may say we changed our minds (professional discretion). Government lawyers have the unquestioned right to drop some of the charges or all (Ref: 2LCLR, \u00a718.1<\/b>). This legal provision is used frequently if prosecutors want the cooperation of an individual who played a minor role in the crime but who has much useful evidence against the masterminds of the crime.<\/p>\n

Dismissal by court \u2013 upon request by defense counsels<\/b>. In this case, the defense counsels request the court to dismiss the indictment for prosecutors\u2019 delay beyond the time frame allowed by law. It could also be that prosecutors got some things wrong with the initial indictment (i.e., wrong charges, mistaken identity, or any other legal technicality). If any such issue is the case, defense lawyers may ask the court to dismiss the indictment on this ground. (Ref: 2LCLR, \u00a718.2<\/b>\/18.3; see also 1LCLR, \u00a711.2 on pre-trial motion generally)<\/p>\n

Under Liberian law, any dismissal of a criminal case\/charge \u2013<\/b> dismissal of an indictment \u2013 prior to admission of evidence, cross-examination, and\/or prior to presenting such evidence to the jury or the judge is not a full and complete legal clearance<\/b>. Government lawyers reserve the right to \u201cimprove\u201d upon the indictment and reissue it, as warranted (2LCLR \u00a718.3).<\/p>\n

Under Liberian law, dismissing an indictment under either \u00a718.1 or \u00a718.2, is understood by lawyers, generally, as an attempt to buy time. It could be the government lawyers want to buy time or it could be the defense counsel’s buying time. For the accused, it\u2019s not over until the case goes to court and a not-guilty verdict emerges, or where the government openly declares that it is closing the case and dropping [ALL] charges. Any other scenario is temporary. In the case of NEC\u2019s Chairperson, I\u2019m unaware of any such pronouncement by state prosecutors.<\/p>\n

There are many cases to cite to establish this point, but let\u2019s take this fairly recent case. In the case Ware v. R.L [2012] LRSC 10, involving Dr. Lawrence K .Bropleh, <\/b>and two staff members of the Ministry of Information. Accused of graft and theft, Dr. Bropleh\u2019s legal team moved for dismissal on ground number [2] and tagged to its request \u201cwith prejudice.\u201d<\/p>\n

In essence, Dr. Bropleh\u2019s legal team wanted a full and complete dismissal. The trial judge, Hon. Ware, granted the request, without<\/b> clarifying that the government reserves the right to re-indict and retry. The case reached the Supreme Court and \u201cas a side issue\u201d the court clarified that the Judge Ware was in error for NOT stating emphatically <\/b>that the government reserves the right to re-indict and retry the case. Here is the ruling of the Supreme Court in its own words.<\/p>\n

But even if the trial judge was within the pale of the law by dismissing the case against the defendant under the facts and circumstances as stated herein, he still could not dismiss the case with prejudice.<\/b> By dismissing the case with prejudice<\/b> to the state, the trial judge had foreclosed and prohibited the state from bringing any future action against the defendant on the same claim. Section 18.3 of the Criminal Procedure Law provides: Dismissal of an indictment or complaint <\/b>under section \u00a718.1or \u00a718.2 or at any time before the jury is impaneled and sworn or, if the case is to be tried by the court, before the court has begun to hear evidence, shall not<\/b> constitute a bar under the provisions of section 3.1 to a subsequent prosecution. Ware v. R.L [2012] LRSC 10.<\/p>\n

The Politics of Indictment under the George Weah\u2019s Government<\/b><\/p>\n

If you follow the news, obviously, you will get the impression that the NEC Chair is cleared. But I have shown here that, in so far as the NEC Chair\u2019s case did not get to the stage of evidence submissions, cross-examinations, and consideration by the jury or the judge, then unfortunately, Madam NEC Chair is not yet legally cleared, especially since, as things stand, the government has not openly announced the dropping of ALL charges. <\/b><\/p>\n

What this means is that the government can, at any time, decide to brush up their old files and come for her. Of course, as a lawyer, the NEC Chair knows this already, as do the MOJ\/LACC\u2019s attorneys, and all the defense counsels involved. So, the curious question is: if the MOJ and the LACC know this, why are they not taking any action, for or against?<\/p>\n

Here is the sad truth. For this George Weah\/CDC government, the law is simply an extension of party politics, nothing more, nothing less. Prosecution or non-prosecution, under this CDC regime, is always perennially a political calculus. When it\u2019s politically expedient, they prosecute. Where there\u2019s nothing to gain politically, then there\u2019s simply no prosecution. This is about the most consistent inconsistency of George Weah\u2019s administration. Here are a couple examples.<\/p>\n

The Brownie Samukai\u2019s case (i.e., Theft and Misapplication). Remember the CDC government \u201centered\u201d an agreement with BJ Samukai that the government will pay back soldier\u2019s savings misapplied by Samukai and others, even though they were aware that Samukai and some yes-men at the Ministry of Defense had abused their fiduciary position. But in 2018\/2019, the Ellen-UP\/CDC honeymoon was fully on, and CDC had no political incentive to go after Samukai. All that changed, however, when Samukai opted to contest in the [2020] Lofa senatorial election.<\/p>\n

The Ellen-UP\/CDC honeymoon was declared officially over. The CDC government simply dusted up their old files and brought criminal charges against BJ Samukai. In the Samukai\u2019s case, once Samukai was subdued and submitted himself to the \u201ccountry giant\u201d political supremacy, the MOJ sprang into action helping Samukai get \u201csuspension\u201d of his prison sentence. For his now \u201cgood political behavior\u201d, Samukai even got a bonus \u2013 the now infamous \u201c150-year repayment plan\u201d. For this CDC government, it\u2019s never about the AFL soldiers\u2019 pension, nor the constitution, nor even the people of Liberia. For this CDC government, it\u2019s all about submission to the will of Weah, always, every time.<\/p>\n

The case of Senate Secretary and former National Investment Commission Chairman (i.e., Naborlor Sengbe and George Wisner joint indictment and re-indictment on theft of property, forgery, and criminal conspiracy. Recall the indict, drop charges, then reindict merry-go-round?<\/p>\n

This indictment merry-go-round<\/b> is typical of state prosecutors under the CDC regime. When it suits CDC politically, MOJ\/LACC indicts; if not, they drop charges or simply refuse to indict. They are just so happy to look the other way. After all, Wifey and kids gotta eat!<\/p>\n

The case of Bill Twehway, Kanio Gbala <\/b>et al, ex-Managing Director (NPA) and current LACC Vice Chairperson. The gang of CDC loyalists was accused of milking the National Port Authority (NPA) of close to half a million US dollars, but the government\u2019s investigation report never saw the \u201clight of day\u201d. No indictment was ever drawn up. And it\u2019s unlikely any will ever be.<\/p>\n

Because, for George Weah and his CDC government, the office of the public prosecutor is just another \u201cwing\u201d of the party \u2013 just like the [CDC] \u201cyouth wing or the \u201cwomen wing\u201d. Under such circumstances, indictments are ONLY for people who annoy the CDC\u2019s standard-bearer or for people who disrespect Liberia\u2019s \u201cbest Prezo ever\u201d. For now, these accused officials REMAIN loyal to the regime. So, evidence notwithstanding, there will simply be no indictments nor prosecution forthcoming. That\u2019s the George Weah\/CDC regime M.O. since taking office.<\/p>\n

I could list dozens of such examples. There are certainly as many. Like the multiple allegations of brutality, aggravated assaults and worse \u2013 against Jefferson Koijee, who has never ever been placed under any formal investigation, let alone indictment. Under George Weah\/ CDC\u2019s government, an accused status as a \u201cloyal partisan\u201d takes precedence over the constitution of the Republic of Liberia and over the interest of the state. As shameful and as repugnant as this is to the notion of civilization, that\u2019s exactly what it is. For now, I suppose these few examples make the point well enough viz: Everything is politics for this regime<\/b> \u2013 even indictments and prosecutions.<\/b>
\nThe Risks NEC Chair\u2019s Re-indictment Poses for Liberia\u2019s Election <\/b><\/p>\n

I have established that, so far, the NEC Chair is not legally cleared, in so far as the dismissal of her indictment was done under subsection \u00a718.1\/\u00a718.2 of the Liberian criminal procedure. I have also established that for this CDC government, the decision to prosecute is strictly a political affair. If it is beneficial to the party, MOJ\/LACC prosecutes. If not, then there\u2019s no prosecution. As simple as that! I have given concrete examples of how the CDC government uses the prosecution strictly on the basis of political calculations. Now, what does all this have to our October 2023 elections and the current NEC Chair? I will explore this issue next.<\/p>\n

#1: The Risk of Legal Blackmail<\/p>\n

The NEC Chair has an indictment that can be switched on at any time. This \u201changing\u201d indictment is for felonies (i.e., very serious charges). As such, the NEC Chair is very susceptible to legal blackmail by the CDC regime. The regime could make her a request, and if she drags her feet or dilly-dally, of course, they could dust off the \u201changing\u201d indictment and initiate criminal proceedings. Brownie Samukai can relate. Of course, at this point complying with the regime will be in her best interest and most pleasing to the CDC, but detrimental to the country. What\u2019s the likelihood of this happening? It depends. What we know for sure is that CDC sees prosecution in purely political terms, and if they figure they could get political capital from blackmailing the NEC Chair, my sense is they will not hesitate at all to use such leverage. Certainly, they have a long history of doing this. Should the person who leads us into our October 2023 elections be under such risk? That\u2019s the question we all as Liberians need to answer now or never.<\/p>\n

#2: The Risk of Repeating the Offense<\/p>\n

The second risk of course is that if a corrupt individual is not brought to book for an [alleged] crime, then they might never entertain second thoughts about repeating such acts. In the case of NEC Chair, this looks much more likely. A woman who, as NEC Chair, despite her fiduciary responsibility to NEC, got NEC to deal with her brother\u2019s company at \u201cjacked-up\u201d prices, is likely to continue such fraud because she \u201cscrewed\u201d the government and got to keep the proceeds. She won; Liberia lost. Who does want to win again, if given the chance? How far will she go for money? Many elections participants are risk-takers. They could make her an offer too good to turn down. Maybe we all want to be \u201csecond fool\u201d. For me, this is just too much risk for Liberia! It\u2019s not worth it. Not at all.<\/p>\n

#3: The Risk 0f International Community\u2019s Disengagement<\/p>\n

The third risk (and equally serious), is the fact that the international community already knows about this case and is disappointed at the Liberian government\u2019s failure to act. And, since they cannot force a sovereign government to take action, such as removing a public official from office, they can, however, always withhold financial and other technical assistance from NEC, on account of the fact that its Chairperson has no integrity whatsoever to lead a integrity-based process. Of course, poor Liberians need as much help as possible for foreign partners \u2013 financial, technical, logistical. Why should poor Liberia take such a risk, when it\u2019s so much easier to just ask the NEC Chair to step down?<\/p>\n

Who are the stakeholders and What Can they do? <\/b><\/p>\n

Of course, we could all appeal to President Weah to remove this legally-compromised NEC\u2019s Chairperson. However, experience shows this is very unlikely. The political tides are turning against George Weah and the CDC government, so it will make more sense for him to keep open the possibility of a NEC Chairperson whose \u201cprosecution button\u201d can be switched-on or off, at will by CDC. I\u2019m no soothsayer, but after five years of watching CDC government in action, my sense is that they will stick with her, since her legal vulnerability is valuable political capital to them. So much so for the man who has Liberia at heart!<\/p>\n

Our constitution provides that \u201call power is inherent in the people\u201d. So, the people, acting directly, or through their elected representatives, can act. But expecting intervention from the National Legislature is a long shot. For the past five years, we have regularly witnessed our National Legislature in action, and they have disappointed us time and again. Maybe they will put their foot down on this matter, as many of them are themselves contestants. They can call a public hearing on this matter and solicit legal opinions from the public. And if this public hearing confirms my argument, then the National Legislative can declare a vote of no confidence in the NEC Chair. Will the Legislature act to save the state? Only they can say. The ball is also certainly in their coat.<\/p>\n

Other stakeholders include political parties, composed of citizens across the country, who stand to be disenfranchised by election fraud or other illegalities. But when will their infightings stop, so that the necessary advocacy and rectification can be done? We also have civil society groups as stakeholders. They can jointly issue a vote of no confidence in the NEC Chair and \u201cblow the whistle\u201d. Their actions may be largely symbolic [locally or legally] but could end up being hugely significant [internationally]. The international community gives a lot of credence to the voices of independent civil society groups.<\/p>\n

Overall, I think it is a very bad idea to allow a legally-compromised individual to lead Liberia into these [2023] elections. We should always remember that elections are won at the polls, not in the courts<\/b>. Certainly, I think that no one has a \u201cconstitutional right\u201d to a high-profile government job. These jobs are for our most esteemed and eminent citizens. The job of the NEC Chair is most definitely NOT <\/b>for an individual who is in \u201clegal limbo<\/b>\u201d. The stakes are just too high. In Libera, we prefer to do nothing \u2013 and let the damage occur first. Let\u2019s not allow our 2023 elections to be subjected to our business-as-usual culture. I hope I have made some sense. Those who have ears, let them hear. And, of course, those who have a responsibility to act, let them act.<\/p>\n

Wonder Koryenen Freeman, CFCS, LLM, MBA. WK Freeman is a Liberian professional, a trade\/investment attorney, forensic accountant, political economist, and financial crimes expert, currently residing in Brooklyn, New York, USA. He\u2019s passionate about economic justice, accountable governance, rule of law, and economic development.<\/p>\n

For More News And Analysis About Liberia<\/a> Follow Africa-Press<\/a><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Africa-Press – Liberia. Liberia votes come 2023. There are, ostensibly, many great speeches about the necessity of free and fair elections \u2013 from the opposition, as well as the ruling party. But in truth, free and fair elections are a process \u2013 not an event. Those who are waiting for October 2023 to ensure free […]<\/p>\n","protected":false},"author":84,"featured_media":32121,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2,6],"tags":[233,237,234],"class_list":["post-32122","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-all-news","category-files","tag-africa-press","tag-africa-press-liberia","tag-liberia"],"yoast_head":"\nLiberia: Allowing an Individual in \u201cLegal Limbo\u201d to Lead Our Elections is a Monumental Risk - Liberia<\/title>\n<meta name=\"description\" content=\"Liberia votes come 2023. 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