PHOTO: The Author
By W.K Freeman, CFCS, LLM, MBA. WK Freeman is a Liberian professional, a trade & investment attorney, forensic accountant, and financial crimes expert, currently residing in New York, USA. He’s passionate about economic justice, accountable governance, rule of law and economic development. He can be reached at wonderrkfreeman@gmail.com
The law should be law, and politics, politics. The Law in general, as much as it intermingles with politics, should be, in its application, apolitical and non-partisan – to say the least. And politics? Well, just the opposite of law – political and partisan.
The law wants to acquire evidence and use such evidence to prosecute and subsequently render justice; whereas, politics, I’m told, is all about votes and power. Like oil and water, one seldom gets good results when you mix the two. Now, in any society, politics has its rightful place, and so does law. And to be practical, law and politics, at times, do have overlapping interests and objectives, as much as they differ.
But what happens when their interests conflict? Which should prevail? And better yet, should one be completely subservient to the other? In this article, I argue that, in Liberia, currently (and historically), the law has been way too subservient to politics, and this has been detrimental to justice and to Liberia’s socio-economic development. I argue that public prosecutors (prosecuting attorneys) in Liberia are often all too willing (or are invariably structurally compelled) to bend over backwards to accommodate political interests and directives. This predicament needs not be. Accordingly, in this article, I deconstruct the path for public prosecutors from unsavory political persecutions to the disciplined pursuit of justice.
Political persecutions in Liberia? Where is the evidence?
In law school, we are repeatedly lectured to, that the prosecutor’s job is not necessarily to convict but to ensure that justice is done. We are never told, however, that in Liberia, (and I suppose in many failing states) the prosecutor’s job is also to persecute the political opposition – and sadly too, whenever possible, illegally convict them.
The more the public prosecutor makes his job about hounding and hunting the political opposition, the more pleasing his service is to the ruling party. Today, and throughout Liberia’s history, the prosecutors’ job has consisted routinely of being the hatchet man for the ruling party, and more specifically the President. Bold claims, right? But where is the evidence? So, let’s take a few examples.
- The persecution of Alexander B Cummings – the criminal fraud farce
Several political organizations got together and fashioned an agreement to collaborate. Somewhere along the lines, one or more of them were unhappy and accused Alexander B. Cummings (Cummings, hereafter) of fraud. Now there is criminal fraud and contractual fraud. But the ex-Solicitor General[1] (SG), Sayma Syrenius Cephus. saw his opportunity to impress his political boss. Our SG, who should be guided by the law and reason – or at least basic common sense – saw an occasion to use the office of the public prosecutor – basically to score political goals, hoping that this will make him look real good to the President. He jumped on this apparent civil-issue and wasted precious resources “persecuting” Cummings. And were it not for the good fortune of a related Liberian Supreme Court ruling which invalidated this very contract, our scarce prosecution resources would have continued to be exhausted on what was very clearly a distasteful “political project”. The office of the public prosecutor in any country is a very stern legal office. It must NOT operate on the vicissitudes of partisan politics, as demonstrated by the persecution of Cummings’.
- The persecution of Henry P. Costa – the extradition farce
For starters, I’m no fan of Costa. But in his recurrent hullabaloo with the Liberian government, and more specifically the situation of the extradition request, this was another example of prosecutors gone berserk. The prosecution office, headed by S.G. Cephus and his then County Attorney, Edwin K. Martin, alleged that Costa had committed “insurrection” and “immigration fraud”. First of all, HP Costa was hounded into exile. He was chased out of Liberia by back-to-back political-motivated violence, arson attacks, repeated physical assaults and outright vandalism on his radio station. The political objectives of these attacks were quite clear. It didn’t matter to Cllrs. Martin and Cllr Cephus – the two top prosecutors at the time – that no one was ever brought to justice for those horrific crimes. What was most concerning to them was Costa’s politics (or Costa’s journalism) and how to hound and hunt him so that Liberia’s “best Prezo” ever would be “pleased”. Costa got wind of his pending arrest and took flight to Sierra Leone, before state agents, under the directive of Martin and Cephus, could unleash the “law” on him. Now, ex-S.G. Cephus, who routinely claims to be “member of all the law societies on ever continent”, was well are that no “sane” government would ever extradite a person for (1) political crimes or (2) for misdemeanor (de minimis). It was very clear to any keen observer that Costa’s main crime was staging a big protest that upset the government. Prosecutors Cephus and Martin knew fully well that there was never going to be any “extradition” because the Government of Liberia’s (GOL) charges against Costa, as from an international perspective, those bogus charges would definitely have been deemed either political or de minimis. But again, the legal outcome of the extradition quest didn’t matter to these prosecutors. What was important was their willingness to use law for the “pleasure” of the President. The regime was so happy with the two “prosecutors” that they would go on to “reward” Martin with the post of LACC Chairperson, and for ex-SG Cephus, he was the Minister of Justice, in all but name.
- The same Facebook posts, same prosecutors, but different responses
Here below are two Facebook posts with similar messages, but totally different responses from the Liberian prosecution office.
Statement #1 “We don’t need free bags of rice. I say we the poor in Liberia need AK 47’s so our leaders can take us seriously.” Opposition politician Menipakai. Dumoe
Statement #2 “Under special instructions from our supreme leader Jefferson Tamba Koijee, we carried out attacks against UL students (SUP) this morning. Next time we will use live bullets!” Ruling Party Stalwart, Ben B. Togba
Under statement #1, no one was ever injured or harmed in any way, yet Dumoe, an opposition politician, in less than 48 hours, was incarcerated and charged with “sedition”. Now, for statement #2, several persons were physically assaulted; one brutality beaten and badly injured, which beatings were captured and widely shared on social media. For at least one week, there were no arrests and no charges. It had to take a statement from the international community, and another from the President before charges were laid. Worst yet, Jefferson Koijee, the “supreme leader”, who allegedly gave the “special instruction” faced no interrogation, no charges, and definitely no prosecution. Of course, in hindsight it is understandable, when the prosecutors take their instructions from political masters, it’s unlikely these prosecutors will dare “indict/prosecute” a top politician. Jefferson Koijee is definitely CDC’s “golden boy”. Sadly, this is not the only violence attributed to Koijee, just for your information. There have been many others, equally sadistic and lurid, captured on videos. But when the law dances to political tunes, no amount of glaring evidence will be enough for prosecutors to act.
- Robert Sirleaf and the NOCAL windfall
Robert Sirleaf was a “world-renowned” Liberian “oil and gas” expert at the National Oil Company (NOCAL), or at least that’s what his mother, Mrs. Ellen Johns0n-Sirleaf, ex-President of Liberia, said. But before Sirleaf took over at NOCAL, an equally renowned geophysicist, Chris Neyor was CEO at NOCAL. But mama Sirleaf had issues with Neyor. “How could he work in the Liberia public sector and not know about the “conjugation of the verb to eat”? Before long Neyor was out and “baby Rob” was in – as CEO of NOCAL – ostensibly, to both manage the oil “contracting” process and to properly “conjugate the verb – to eat”. Robert Sirleaf ran NOCAL; much rather, he ran NOCAL into the ground. By the time Rob got through with NOCAL, the company was bankrupt. Now, mama Sirleaf took full responsibility for “baby” Rob’s illegal and wrongful acts at NOCAL, but she never paid a dime in “restitution” or “damages”.
Bear in mind also, this is the same person who in 2006 declared corruption “public enemy number one”. And in few years to come, in 2015, Mama Ellen would again term corruption “a vampire of development and obstruction of progress in her government.” Back to Rob Sirleaf… of course, at that time, there was a prosecution office in Liberia. And all prosecutors know that confessing guilt or liability for “fraud” or for “tort” must necessarily be accompanied by “restitution” or “damages”, respectively. But which prosecutor dare ask the Sirleafs (Liberia’s political lords at the time) a question, let alone file charges against “baby” Rob. Robert Sirleaf, like McGill of CDC, a.k.a ‘porcupine’, was presumably the “Prime Minister” of the UP’s government. The public prosecution office in Liberia, historically, only prosecutes common people and opposition politicians – not ruling party people who break the law. So, Robert Sirleaf went scot-free, laughing all the way to the bank. And George Weah, who sold Liberia “Change for Hope”, he dutifully allowed Rob Sirleaf to keep it all, as a way to scratch ma Ellen’s back, after she scratched his back during the 2017 elections. This is Liberian prosecution office at work – serving completely at the “pleasure” of the President.
I think with the Robert Sirleaf’s example, the point is well made. I won’t bore you with stories from Jenkins KZB Scott days or the sheer terror and jungle justice days of ex-President Charles Taylor – which I suspect Chief Dr. Jewel Taylor would rather us call “good old days”. The point is well made that, as far back as I can remember, public prosecutors in Liberia danced to the tune of the President and the ruling party. It didn’t matter what name that ruling party was called, whether TWP, NDPL, NPP, UP, or CDC. This is an incontrovertible fact. And, we might as well be honest with ourselves, as critical as we are with the CDC government, that prosecutorial nonfeasance and/or malfeasance was not “invented” by the CDC. Only that, it was they themselves that had promised “change for hope”. And let’s be fair to them, they delivered on the “change” but not the “hope”. They took the Liberia public prosecutor’s office situation from worse to “worser” – example of the change they instituted. With such example, I am compelled to imagine Liberians’ apprehension as to what the “hope” will deliver. I guess the only remaining question left to be asked is: is this the way public prosecutors in other countries behave? If not, why do prosecutors in other countries behave differently from Liberian prosecutors. This is the question I address next.
Why do Liberia public prosecutors always dance to ruling party tunes?
I theorize the answer lies in our laws, specifically the Constitution and Executive Law (i.e, law/section creating the Ministry of Justice [MOJ]). Article 56 of the Liberian constitution accords the President the prerogative to “appoint” a broad spectrum of officials, and further provides that “they shall hold their offices at the [pleasure] of the President”. Now, when you read article 56 of the Constitution, in conjunction with the law creating the MOJ (Executive Law, Title 12, sub-section 22).
These laws make “all prosecutors” amenable to the “pleasure” of the President. So, for most prosecutors, this turned their jobs from that being a principled search for justice to one dedicated to “pleasing” the President. And throughout Liberian history, this is exactly what we see public prosecutors doing – pleasing the President – mostly to the detriment of justice. But does it have to be this way? Can’t the public prosecutor’s office be made more independent? Sure, it can, but not with the law as is. We must change the law! All persons along the criminal justice pathway – INVESTIGATION-INDICTMENT-PROSECUTION-JUDGMENT, must NOT serve at the “pleasure” of the President. These professionals must be recruited though a “merit” system and must be given security of tenure (fixed-term contracts). The continued holding of their jobs must be based on their performance, their integrity, and their commitment to the rule of law, and not merely at the” pleasure” of the President. When it comes to dispensing justice without fear or favor, it is a must that these laws be changed. What’s the point in continuously doing something which has failed us since 1847? What’s the point?
How do other nations secure prosecutorial independence?
Firstly, the role of the public prosecutor ideally is:
“… to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants”[2] (America Bar Association, ABA).
Secondly, the cardinal characteristic of a public prosecution office should ideally be:
“To function effectively, a prosecution service must be able to provide neutral, non-political, non-arbitrary decision-making about the application of criminal law to real cases. An undue, improper or partisan use of criminal investigation may have devastating consequences for the protection of civil rights and the equal treatment of the citizens before the law.”[3](United Nation Office on Drugs and Crime, UNODC)
- The US experience
In the USA, at least 43 states elect their “Attorney General[4]” (AG), while the rest of the lower-level state prosecutors are filled based by competitive administrative process, inclusive of public adverts, interviews, and relevant examinations.[5] Prosecutorial independence is imbedded into the system. That is why in the state of New York, AG Letitia James, a Democrat, was able to open an investigation into Governor Andrew Cuomo, another Democrat, thus leading to his resignation. If AG James had to work at the “pleasure” of Gov. Cuomo, obviously her conduct would have been different. It’s not rocket science, people! Different legal structures/systems lead to different prosecutorial and/or judicial outcomes.
- Other global systems of ensuring independence of the public prosecutor
Take the case of Singapore. In Singapore, the President appoints the AG, but can only do so from a “prequalified list”, which final selection is submitted to him by the Prime Minister in consultation with the Chief Justice and the Public Service Commission. And the AG, when appointed, serves up to age 60 and may go beyond, based on approval of the Prime Minister and the Government. Now, this is where their system gets even more rigorous. The AG may not be removed except for cause, and to remove the AG, a special tribunal must be called, to be presided over by the Chief Justice and two addition Supreme Court Justices[6]. The appointment and removal provisions apply equally to the deputy AGs. You can see the rigor of the system. Firstly, the President cannot unilaterally appoint anyone from anywhere; he must use a pre-screened list. Secondly, there is job security for the AG until age 60; consequently, the chief prosecutor has no job-security concerns. Assuming s/he was appointed at age 50, s/he has, at a minimum, a 10-year job-security. And better yet, if that person got the job at age 45, s/he has job security for the next 15 year. Total job security for the AG! The result of such a system of public prosecution system (and legal system in general) can be seen in the rapid development of Singapore over just a few decades. An entrenched system of rule of law is at the bottom of all socio-economic developments.
In many other countries[7], public prosecution services function as an independent organ with functional autonomy and financial independence[8]. Even in instances where “the prosecution service is, under the constitution, part of the executive branch, the law creating it provides that in the exercise of its functions, it shall not be subject to supervision or oversight by any other person or authority”[9]. I reemphasize, all justice actors along the criminal justice pathway – INVESTIGAITON-INDICTMENT-PROSECUTION-JUDGMEMT – must not serve at the “pleasure” of the President. To do so is to relegate the law to the vagaries of politics. This has been Liberia’s Achilles’s heels since Ccharley King” time. But this anomaly does not have to continue like this. We the people have the power to change these laws, and we must, if Liberia is to have any chance of administering justice and promoting socio-economic development.
Conclusion
The rules of politics differ from the rules of public prosecution. The politician wants to be popular and to win votes. This nature of politics normally causes the president and politicians, generally, to think about votes, first and foremost, before any other considerations – including justice. The public prosecutor’s job is to seek justice, without fear or favor. The public prosecutor chief duty is to bring too book all those who break the law. A politically-biased prosecution service is only one-step away from societal chaos. It’s clear that if the public prosecutor “daily bread” comes at the “pleasure” of the President, then “pleasing” the President and, by extension, the ruling party, becomes the prosecutor’s chief occupation. This is why prosecutors in Liberia have perpetually danced to the tune of politics. This is the reality of life for the Liberian prosecutor. The solution, therefore, is to make the public prosecutor’s office independent – functionally and financially. This is the universal standard for stable democracies. Justice is the precondition for all development in all sectors, and an unbiased prosecution office is an integral part of this dispensing of justice.
Unlike the case of independent prosecutor office as I argue, the Liberian public prosecution office literally awaits instructions from the President and the ruling party. This is the reason why we have changed governments, but prosecutorial nonfeasance and malfeasance remained unchanged from time in memorial. And, until the law changes, nothing will change. Changing laws is the responsibility of everyone, but especially so for opposition politicians, who suffer the most from bogus charges and ludicrously biased prosecutions. So, you would think that when these politicians, upon getting to the National Legislature, they will make it their duty to change our laws for better. But no! If anything, they spend more time grandstanding or on talk shows, spewing blah, blah, blah. And, when they are not grandstanding, then they are too busy chasing “legislative projects”. So, our laws never get reviewed, nor changed. With the current laws, every Solicitor General and every County Attorney must necessarily dance to the tune of the President and whatever ruling party there is. This sad situation is the obvious outcome of bad laws.
Laws are not something you write and then you go to sleep. After passing laws, you must rigorously monitor them in action, and revised them as regularly as possible until the laws achieve exactly the intended objectives. The American constitution, for example, has been amended some twenty-seven times (27x). Yes, you hear me right, some 27 times! Since our opposition politicians are failing us on this front, our thinkers, activists, and patriots must now demand very loudly on legal reforms. Where are our THINKERS, ACTIVISTS, AND PATRIOTS? Tell them Liberia is calling – calling on them to liberate our prosecutors, elevating their routine, from political persecution to the principled pursuit of justice.
[1] The Liberian equivalent of Director/Head of Public Prosecutions
[2] Accessed on 17 September 2022, from https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition/
[3] Accessed on 17 September 2022, from https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-14/key-issues/2–general-issues–public-prosecutors-as-the-gate-keepers-of-criminal-justice.html
[4] Accessed on 17 September 2022, from https://ballotpedia.org/Attorney_General_office_comparison
[5] Accessed on 17 September 2022, from https://ag.ny.gov/bureau/legal-recruitment-bureau
[6] See Singapore constitution – article 35 §(1) – (11)
[7] Including Canada, UK, Hong Kong, South Africa, virtually all of Europe, …
[8] Organization of American States, Inter-American Commission on Human Rights, 2013, , Guarantees for the independence of the justice operators. Towards strengthening access to justice and the rule of law in the Americas, p.15-17
[9] Ibid, p 16