FLASHBACK: Cummings (wearing mask) swarmed by his supporters on the grounds of the Monrovia City Court
By Garmah Never Lomo, garmahlomo@gmail.com
TEMPLE OF JUSTICE, Monrovia- Criminal Court “A” at the Temple of Justice presided over by it resident Judge Roosevelt Z. Willie has set this Thursday February 10, 2022 to decide fate of opposition Alternative National Congress (ANC) political leader, Alexander Cummings in the alleged forgery and criminal conspiracy case.
ANC’s Secretary General, Atty. Aloysius Toe and the party’s Chairman, Senator Daniel Nathan are together being charged with forgery and criminal conspiracy for allegedly altering the framework document of the Collaborating Political Parties (CPP), which was then chaired by Cummings.
The CPP, which is currently shattered, has brought together the ANC, former Vice President Joseph Boakai’s Unity Party, Senator Nyonblee Karnga-Lawrence’ Liberty Party and the All Liberian Party (ALP) of top Liberian businessman, Banoni Urey.
The court’s decision was based on a summary appeal filed by the defendants lawyers headed by Cllr. Abraham Sillah on grounds that Monrovia City Court Magistrate Jomah Jallah’s January 26, 2022 ruling was erroneous and he is said to have applied the statute against the defendants.
During the argument at Criminal Court “A” today, Monday, February 7,2022, state prosecutors headed by Liberia Solicitor General Sayma Syrenius Cephas cited the Criminal procedure law of Liberia 25.6, 17.3 and Article 21.5 of the 1986 constitution of Liberia.
In his argument, the Solicitor General informed the court that the CPP frame work is a public document and cot or society for the ANC political leader should be hiding and more besides what they raised in the magisterial court was not what was raised at the circuit court.
Cllr. Cephas argued that under no circumstances that providing the original frame work document incriminate the ANC political leader because he is not witness on the stand and only a witness on the witness stand is not allow to produce evidence against himself according to Article 21(h) of the 1986 constitution of Liberia.
The prosecution therefore prayed court to confirm and affirm magistrate Jomah Jallah January 26, 2022 which gave ANC leader 72 hours ultimatum to produce the original copy of the CPP framework document.
Defense lawyers counter argument
As for the defense lawyers, Cllr. Abraham Sillah argued a defendant(s) in any court of laws are not allow to produce any evidence against his/herself in line with Article 21(h) especially, where the defendants have pleaded not guilty.
According to Cllr. Sillah, he who alleges must have the burden of proof and by the way what the state by and thru Mr. Benoni Urey when they went ahead indicting the defendants when they have no evidence in their possession.
He further argued that the ruling of magistrate Jomah Jallah to compel the defendants to produce evidence against themselves violates the rights of the defendants in line with Article 21(h) of the 1986 constitution of Liberia which the constitution abolished.
Defense lawyer Sillah added that magistrate Jallah should issue the subpoena Dues Tecum on the CPP rather than Mr. Cummings and defendants were charged individually and more besides those on trial are not public officials as claimed by the state but rather they are public figures.
Cllr. Sillah maintained that the statute was misapplied and misinterpreted by magistrate Jallah by compelling the ANC political leader and others.
They therefore prayed the court to reverse magistrate Jallah’s January 26,2022 ruling, which gave the ANC political leader 72 hours ultimatum to produce the original framework document of the CPP and grant unto the petitioner further relief that may deem it legal and equitable.
It can be recalled on January 26, 2022 Monrovia City court headed by magistrate Jomah Jallah gave 72nd hours ultimatum to the political leader of the Alternative National Congress, Mr. Alexander Cummings to produce the two copies of the same original signed framework document of May 19,2020 as of today’s date after state prosecution filed a motion for Subpoena Dues Tecum on January 18,2022.
Subpoena Dues Tecum is a writ ordering a person to attend court and bring relevant documents.
According to court ruling, on January 18,2022, state prosecutors filed a ten counts written motion for Subpoena Dues Tecum contending strenuously that the original signed Collaborating Political Parties(CPP) framework document of May 19,2020, is in the hands of the respondents and that persistent efforts made up to and including the file of filing motion have fallen on deaf ears and the defendants have ignore, neglected and refused to deliver unto them copies of the document contrary to their own internal arrangement.
The prosecution preferred to the motion a sworn affidavit, denouncing the alleged alterations, expansions and modifications of specific provisions of the framework document mainly the section regarding “good state of health” with emphasis on the physical and mental capacity of the would be presidential candidate as well as the question of withdrawal and the nomination of vice presidential candidate which, the movant/ prosecution were recommended in the amended framework document prepared and produced by the lawyers but were never deliberated upon and ratified by each of the constituent parties as required before the said purported CPP framework document was filed by the respondents with the National Elections Commission.
Prosecution also contended that the filing of the framework document with the NEC was done without the express knowledge, participation and approval of the movant and therefore prays court to grant the motion and thereby mandate, order and instruct the respondents to produce the selfsame document.
In resisting the motion filed by state lawyers, the respondents on the record of court, prayed court to deny and dismiss prosecution’s motion for Subpoena Dues Tecum contending that such a request will amount to self incrimination and will be in gross violation of Article 21(h) of the 1986 constitution.
The respondents further argued that by filing the motion, the prosecution was now looking for evidence from the respondents already charged for crimes whose evidence the prosecution must produce beyond all reasonable doubt to convict the respondents and therefore, the court should deny and dismiss the motion as if it was never filed.
The court after analyzing the arguments on both sides, the court says there are two salient issues that are determinative of the matter and two issues are as follows:
Whether or not the CPP Framework document of May 19, 2020 is a public document or
Whether or not a Subpoena Dues Tecum granted under the circumstances requiring the defendants to produce copies of the original signed CPP framework document will be considered as incriminating and will amount to the violation of the defendants constitutional rights.
As to the first issue of whether the CPP framework document of May 19,2020, is a public document, this court takes recourse to the law by first defining what a public document is.
A public document in the mind of the court is any document, record or information that is related to the transaction of public business and preserved by an entity or its successor as evidence of the entity’s existence, operations, functions, policies and decisions among others.
A public document is the same as public record and it is different from a private document while public records are documents or pieces of information that are not confidential.
The framework document was signed on May 19,2020, and duly publicized as an agreement that binds together the four constituent political parties under single political structure called the Collaborating Political Parties (CPP).
By that agreement, the CPP is a public entity and body corporate that can sue and be sued.
The signing ceremony of the Framework document was not confidential, so too was the publication of excerpts of the framework document for public review and scrutiny.
There is no showing that the legal basis for organizing such a political alliance was to keep its activities, records or its operations secret.
According to the court ruling, it is a principle, practice and procedure in contract law that parties who execute an agreement are entitled to as a matter of right, copies of the contract if they so desire.
Therefore, a joint contractual agreement as it in the case of framework document of May 19, 2020 is not a copyright property or an exclusive preserve of a single political party. This court says the motion by the movant requiring the respondents to produce copies of the CPP framework document signed on May 19,2020, is legally sound and it is consistent with the Criminal procedure law title 2, Liberian codes of law revised Chapter 17, section 17.2 and 17.3.
As to the second issue of whether or not Subpoena Dues Tecum granted under the circumstances requiring the defendants to produce copies of the original signed CPP framework document will be considered as incriminating and will amount to the violation of the defendant’s constitutional rights.
The court in it ruling said, for proper guidance and direction, takes recourse to the law particularly Article 21(h) of the 1986 constitution of Liberia, specifically the portion that forbids a defendant from producing documents or testifying against against himself in a criminal case is synonymous to the fifth amendment rights of the US constitution which expressly states:” No person shall be compelled in any criminal case to be a witness against himself”.
The qualifying phrase in the fifth amendment of the US constitution is “to be a witness against himself “ which when compared and interpreted along Article 21(h) of the 1986 constitution is restricted to a witness. And by law and practice, a witness is Someone who gives a testimony at an investigation or at trial.
The relevant portion of Article 21(h) of the 1986 constitution reads: ”He(defendant)shall not be compelled to furnish evidence against himself “ which in the mind of the court, refers to a defendant making a statement against himself or herself either knowingly or unknowingly and thereby incriminating himself or herself b duress or other forms of coercive and intimidatory actions.
The court maintained that this is only possible if and only if the testimony required of the defendant by prosecution appears supportive of the defendant’s affirmative defense to absolve himself or herself of the crime charged or the document demanded is personally and exclusively owned by the defendant in a criminal trial and upon which the prosecuting attorney may or is relying to prove its case against the selfsame defendant.
The court fails to see how the defense counsel has effectively refuted this motion with appropriate legal citations before suddenly invoking or relying upon Article 21(h) of the 1986 constitution of Liberia when there is a clear difference between a personal property deemed as private property and public records, or a testimony of a witness and the production of document by subpoena.
In the instant case, the prosecution is seeking a public document signed by the four constituent political parties on May 19,2020.
The court further says the portion of Article 21(h) of the 1986 constitution of Liberia says that He(defendant) shall not be compelled to furnish evidence against himself refers to a defendant becoming a witness and providing owned document and not public document as in the instant case.
Narrating further, the court said, this case is clear and that is the request by the prosecution is consistent with law. Therefore, this court disagrees with the argument of the counsel for the defendant that such a request falls within the realms of self-incrimination and therefore is unconstitutional.
Wherefore and inn Temple of Justice, Monrovia