Says Gov’t Lied About Relying On Treaty To Extradite Former
PHOTO: Cllr. Tiawan Saye Gongloe, LPP Presidential candidate
Presidential candidate, who is former President of the Liberian National Bar president, Cllr Tiawon Saye Gongloe has described Monday’s extradition of former Sierra Leonean Police chief by the Liberian government as illegal, as Garmah Never Lomo reports.
Cllr. Gongloe said the “illegal” extradition of former Sierra Leonan police superintendent Mohammed Toure is a conspiracy between President George Weah and President Julius Maada Bio to maintain power and he claimed that the CDC government lied on the conventions they relied upon to extradite the former Sierra Leone police chief.
But the Liberian government on August 8, 2023 said that, “His (Turay) handover to the Sierra Leonean Government is in keeping with the laws of Liberia and the 1986 Non-Aggression Security Treaty entered into by the Governments of Liberia, Sierra Leone, and Guinea.” BREAKING: Liberian Gov’t Confirms Extraditing Former Sierra Leone Police Chief – News Public Trust
Turay had been seeking refuge in Liberia and the Sierra Leonen government has accused him of being involved in a coup plot.
Cllr. Gongloe, who is Standard Bearer of the opposition Liberian People’s Party (LPP) added that the 1994 ECOWAS convention relied on by the Liberian government only talked about the establishment of the ECOWAS parliament which is far from the government illegal extradition.
The prominent Liberian Lawyer added that any political activist whose life feels threatened and wants to seek refugees in Sierra Leone might be moving back under the same conspiracy.
The LPP 2023 presidential candidate further said that the 1994 ECOWAS convention relied on by the government of Liberia is false and misleading as the convention only created the ECOWAS parliament.
He maintained that the actions by the government to have forcefully returned the former police chief had a chilling effect on the Liberia democracy.
The LPP standard bearer further discloses that these actions of Liberia single to the international community that Liberians lack regard for the rule of law.
According to Cllr Tiawon Gongloe, the extradition request must pass through a diplomatic channel to the next country’s foreign ministry to the justice ministry and a hearing in the opening court before extradition can be done.
He further said that the Liberian government’s actions also violate many international protocols, which state that when a person leaves their country due to well-founded fear the next country must protect that person.
Meanwhile, Cllr Tiawon Gongleo has said that assurance received from the government of Sierra Leone that the former police superintendent rights will be protected should be highly condemned as it violates international conventions.
Ever since the extradition of Toure, there has been public outcry in some quarters in Liberia.
The move by the Weah government has been condemned, with some critics of the action expressing fear of similar act in their country without respecting the international conventions or protocols to extradite an accused persons.
Below are the option to extradite alleged offenders:
5144 Article 129(2) gives States that receive a request for extradition the option of not prosecuting offenders themselves but rather, if they prefer, handing them over to a requesting State Party for trial, provided that the said State Party has made out a prima faciecase.
5145 The preparatory work for the Conventions shows that States made a conscious choice to use the term ‘handing over’ and refused to use the word ‘extradition’
That choice was heavily influenced by the discussions that took place during the Second World War, notably during the work of the UN War Crimes Commission. States felt that, in the light of the failure to secure the surrender of war criminals after the First World War, it was essential to adopt an executive or administrative procedure, instead of a judicial one like extradition, to facilitate and expedite the trials of war criminals.
The Commission felt that ‘the machinery of extradition is a slow and cumbersome business, ill-suited to speedy retribution after a war’.
The 1949 Diplomatic Conference was conscious that it was adopting a treaty to regulate armed conflicts in the years to come, and so it settled on the wording ‘hand over’, provided that the State Party in question has made out a prima facie case. This reflected a feeling that it was surely necessary to protect individuals against excessive or unjustified requests. The choice of the term ‘hand over’ in Article 129 and its historical significance seem, however, to have been overlooked by States Parties over the years, and the term used in national legislation and in the literature nowadays is ‘extradition’.
5146 Extradition is an option given to States Parties on whose territory the accused are or into whose hands they have fallen.
It relieves States Parties of the obligation to submit the case to their appropriate authorities for prosecution. In the absence of a request for extradition, the obligation to investigate and, if warranted, to prosecute alleged perpetrators of grave breaches is absolute.
5147 Extradition can be carried out in accordance with the provisions of each State Party’s legislation, provided that the requesting State has ‘made out a prima facie case’.
This obliges the requesting State to produce evidence showing that the charges against the accused are sufficient. It has also been defined as requiring ‘actual evidence that must be presented to the authorities that would allow them to form the opinion that the person sought would have been required to stand trial had the alleged conduct of the criminal offence occurred in the requested state’
Most common-law countries apply this condition, requiring that some evidence or reasonable ground for the suspicion of guilt of the alleged offenders be provided by the requesting State before they can be extradited. This is often referred to as the ‘probable cause’ or ‘prima facie’ test.
In most civil-law countries, however, judges do not generally require any proof of culpability of the offence charged, but only the establishment of the identity and nationality of the accused and the production of various documents, such as the arrest warrant. Many multilateral treaties that provide for extradition do not define the quantum of proof, but simply refer to the legal requirements under the national law of the requested State.
Recent practice in extradition treaties, both bilateral and multilateral, appears to apply less stringent evidentiary requirements in extradition proceedings, leaving the Geneva Conventions as probably the only multilateral treaty with a strict prima facie requirement.
The purpose behind the imposition of the prima facecondition is not only to protect individuals against excessive or unjustified requests, but also to ensure that the penal proceedings envisaged will not be frustrated or reduced in scope as a result of transfer to another State Party.
In the light of the object and purpose of Article 129, as well as the obligations contained in Article 1 to respect and ensure respect for the Conventions, a request for extradition from a State whose aim might be to protect its own national,and conduct a sham trial that will lead to an acquittal, should be refused.
5149 To ensure that grave breaches will be prosecuted, States must make sure that their national law permits them to extradite and seek extradition of suspected offenders for these crimes. They must also ensure that the double criminality requirement and the political offence exception are not used to prevent extradition for these crimes.
Many national laws preclude the extradition of accused persons who are nationals of the country holding them.
In that case and other cases where extradition might be refused, the States detaining alleged perpetrators must bring them before their own courts.
5150 It should also be noted that extradition can take place as long as the principle of non-refoulement is complied with. For example, States are under an obligation not to extradite persons to another State where there are substantial grounds for believing that they might be subjected to torture.
There do not seem to have been many recorded cases of extradition for grave breaches. In the Ganić case, a senior Magistrates’ Court judge in the United Kingdom explored the existence of a prima facie case against an alleged perpetrator of grave breaches. He rejected this finding as two careful and thorough investigations had previously concluded that there was no sufficient evidence on which to bring charges against the alleged offender.
Ultimately the extradition was refused as the proceedings were found to be brought for political purposes and therefore amounted to an abuse of process.[
In another instance, Cameroon accepted a request from the Government of Belgium to have Théoneste Bagosora extradited to Belgium to face prosecution for serious violations of the Geneva Conventions and Additional Protocols. The domestic court in Cameroon granted the request without requiring Belgium to provide evidence that the charges against Bagosora were sufficient.
The Geneva Conventions are silent as to the criteria that should be applied in the event that a State Party receives competing extradition requests for the same person and for the same conduct amounting to a grave breach. The requested State Party is therefore left to decide which request takes priority according to its national legislation. The Informal Expert Group on Effective Extradition Casework Practice recommends that States use a list of criteria which provide practical guidance to States on handling concurrent or competing requests for extradition.
5153 Lastly, it is important to stress that the preparatory work for the Conventions does not exclude the possibility of a State Party handing over an accused person to an international criminal court or tribunal. It was a deliberate choice of the 1949 Diplomatic Conference not to preclude this possibility.
In the case of competing requests from a State and the ICC, Article 90 of the ICC Statute provides detailed rules.
The Liberian government also violated Article 20(a) of the 1986 constitution of Liberia which says, 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. Justice shall be done without sale, denial or delay; and in all cases not arising in courts not of record, under courts martial and upon impeachment, the parties shall have the right to trial by jury.
Southern African development community CHANNELS OF COMMUNICATION AND REQUIRED DOCUMENTS for extradition A request for extradition shall be in writing.
The request, supporting documents and subsequent communications shall be transmitted through the diplomatic channel, directly between the Ministries of Justice or any other authority designated by the State Parties.
A request for extradition shall be accompanied by the following:
in all cases,
(i) as accurate as possible, a description of the person sought, together with any other information that may help to establish that person’s identity, nationality and location;
(ii) the text of the relevant provision of the law creating the offence and, where necessary, a statement of the law relevant to the offence and a statement of the penalty that can be imposed for the offence;
if the person is accused of an offence, by a warrant issued by a court or other competent judicial authority for the arrest of the person or a certified copy of that warrant, a statement of the offence for which extradition is requested and a description of the acts or omissions constituting the alleged offence, including an indication of the time and place of it commission;
Southern African Development Community
(c) if the person has been convicted of an offence, by a statement of the offence for which extradition is requested and a description of the acts or omissions constituting the offence and by the original or certified copy of the judgment or any other document setting out the conviction and the sentence imposed, the fact that the sentence is enforceable, and the extent to which the sentence remains to be served;
(d) if the person has been convicted of an offence in his or her absence, in addition to the documents set out in paragraph 2 (c) of this Article, by a statement as to the legal means available to the person to prepare his or her defence or to have the case retried in his or her presence;
(e) if the person has been convicted of an offence but no sentence has
been imposed, by a statement of the offence for which extradition is requested and a description of the acts or omissions constituting the
offence and by a document setting out the conviction and a statement affirming that there is an intention to impose a sentence; and
(f) the documents submitted in support of a request for extradition shall be accompanied by a translation into the language of the Requested State or in another language acceptable to that State.