By Hun-Bu Tulay,ntevoma@gmail.com
+231777111032/+231886517356
The Judiciary is a system of courts that administers justice in the name of sovereign states. It hears cases and interprets, enforces and nullifies laws and status to reach verdicts.
It is the constitutional hope that the citizens of any country can look for help when their rights are jeopardized. For the realization of human rights, vibrant democratic machinery with the rule of law the judiciary is essential.
This is only possible when the judiciary and the legal profession are independent and immune from political and ordinary influences such as inducement and bribery. Under such conditions, the judiciary and the legal profession shine with integrity and gain the respect of the citizens as well as encourage foreign investors to invest, hence the country develops.
From the citizens’ point of view, the judiciary is the most important organ of the government because it acts as their protector against the possible excesses of the Legislature and Executive. It plays the role of guardian/protector of the constitution and the fundamental rights of the people, and this makes it more respectable than the other two organs of a democratic government.
If the people have faith in the judiciary of their government, they will have faith in the quality, integrity and efficiency of their government.
The judiciary comprises judges and lawyers. If one lawyer or judge is corrupt, the people lose faith in the judiciary as well as the government. And in such a country, if not corrected immediately, the government eventually falls.
Our judiciary today is challenged because the Chief Justice has submitted the names of twelve (12) lawyers and judges and they are currently under investigation for unethical conduct. The United States Treasury Department’s sanction of one of the nation’s distinguished lawyers for allegedly bribing judges creates a dark cloud over the integrity of our judiciary. Our lawyers and the highest court have not seriously engaged the United States Treasury Department to provide evidence on such a serious allegation that has the potential to put the people against the judiciary.
Since the Supreme Court’s Ruling in the J. Brownie Samukai and others v R. L., many citizens have commented negatively against the courts (lower and the high). These citizens have the feeling that the judiciary is corrupt because the United States Treasury Department said judges have been bribed and because of this, they are losing faith in the judiciary. This is dangerous for our country. Maybe the people are right, and this can be seen clearly in the opinion handed down by the court and the communication from the Ministry of Justice.
Ministry of Justice: The Solicitor General letter to the National Elections Commission (NEC), instructing the electoral body not to certificate Samukai because he (Samukai) was a convict; this action was unprofessional and illegal.
The Solicitor General did not cite a law that served as the basis for his instruction. Because his letter was instructing the NEC, an independent body, it was withdrawn by the Attorney General (AG) but then the AG wrote the NEC informing it that Samukai was a convict, citing as his reliance Article 3.23 of the New Election Law; that section of the law is titled: Names of disenfranchised to be furnished by the Minister of Justice. It states, “The Minister of Justice shall send to the Commission annually in the month of December a list containing the names and addresses of all persons judicially convicted and sentenced for disenfranchise-able offense and disenfranchisement continues.
He shall also furnish along with the list, the registration cards of all persons.” Here, there are three questions that come to mind.
The first is, were J. Brownie Samukai Jr. and co-defendants convicted under our laws and status? The second question is, Are Samukai and co-defendants disentranced persons and third why did the Minister of Justice communicate with the National Election Commission in March 2021 instead of December each annually as prescribed by the New Election Law?
To answer the first question, we must first find the legal definition convict. A convict is a person who has been found guilty (convicted) of a crime and is serving a sentence in prison. J. Brownie Samukai Jr. and co-defendants are not serving prison sentences; hence, they are not convicts. They were given suspended sentences that are why they are not prison. To answer the second question, we need to define the word disenfranchisement. “The word means an action of taking away a right to vote from a person or group of persons.” Was the right to vote taken from the defendants?
The answer is a Big NO. The answer to the third question is that Article 3.23 states that the Minister shall submit the names of disentranced persons annually in the month of December. So, the letter from the Attorney General was a violation of Article 3.23 of the New Election Law.
What was the motive of the Minister of Justice? Was he under some obvious, but invisible political pressure to send that communication? Your answer is as good as mine.
It seems like the current Attorney General and the Solicitor General may not fully understand the meaning of the word convict and may not fully understand the New Election Law Article 3.23. The Attorney General advises the president and all government ministries and agencies and if he is having difficulties understanding the laws and statute, where are we heading as a county?
Supreme Court Opinion: Now let us come to the Supreme Court Opinion handled down during the March 2021 Term of court. Before we do that, let us go to the indictment. The Indictment states as follows: “Theft of Property, Criminal Conspiracy, and Misuse of Public Money, Economic Sabotage and Money Laundering.” The defendants were acquitted on the charges of Economic Sabotage and Money Laundering.
During the Opening of the March Term of the Supreme Court, the Chief Justice said he welcomes criticism because it helps make the judiciary better. The Chief Justice’s Statement is good and healthy for a democratic society. And we pray and hope that those who will criticize will not be held in CONTEMPT by the high court.
Theft of Property: On the charge of Theft of Property, both the lower court Judge and four of the Justices of the Supreme Court cited Chapter 15 section 15.51 as reliance for the guilty verdict against the defendants. The text of Chapter 15.51 is below for your reading and understanding.
Chapter 15 section 15.51 of the Penal code as follow: “A person is guilty of theft if he (a) knowingly takes, misappropriate, converts, or exercise unauthorized control over, or makes an unauthorized transfer of an interest in the proper of another with the purpose of depriving the owner thereof; (b) knowingly obtains the property of another by deception or by threat with the purpose of depriving the owner thereof or, purposely deprives another of his property by deception by threat (c) knowingly receives, retains, disposes of property of another which has been stolen with the purpose of depriving the Owner thereof.”
Before we continue, we need to define some of the words in (a) Misappropriate-steal/pocket; Convert—transfer to oneself. Theft of Property: One of the most authoritative legal definitions of Theft of Property is found in Black Law Dictionary eighth edition. Theft, as classified and is defined with specificity to an individual input as “A person is guilty of theft if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.” Another definition, which is generic, states that “theft is a crime in which a person intentionally takes personal property of another without permission or consent to convert it to the taker’s use.”
For the purpose of both the lower court Judge and the Supreme Justices to arrive at a guilty verdict the two courts reliance referenced Chapters 15.51, but for theft to take place, one must take the property and must pocket/steal/convert the property to oneself.
In order for the Judge to justify the crime of theft, the Criminal Court C presiding judge in this case said in his judgment on page 11, count 6 “Operational funds from the AFL Pension Account were authorized to be transferred into the account of the Minister of National Defense, except the amount of US$16,000.00 USD paid directly to one Joseph Gegehd to be identified.” But this was contradicted by the investigation report of the AFL High Command page 6, counts 6, which is included in the Opinion. It reads as follows, “Documents revealed that the expenditures made from the welfare account were for the benefits of AFL Personnel and their families.”
Sections b and c do not apply to the defendants because they did obtain the account by deception or threat. Even the Supreme Court Opinion on page 19 states, “In the mind of the court, the Minister serving as the signatory to the account was not wrongful or illegal, because as stated supra, he was performing a fiduciary duty for and on behalf of the entire AFL.”
But the high court, justifying Theft of Property, wrote in the Opinion, “In addition, four manager checks were issued in the name of defendant J. Brownie Samukai.” But the high court failed to indicate the serial numbers of the four checks and amounts and dates. It would have been better, if a chart was displayed showing the particulars of these checks as was done on pages 8 and 9 referenced transactions approved by Defendants Samukai and Johnson. It is easy to write “four checks were written to Samukai” but we need evidence.
Page 11 count 6 of the opinion states: “As part of the herein named collusion, all authorization letters directly resulting into the commission of the crime of the theft of property (By deception), was done by Co-defendant J. Nyumah Dorkor.
At the same time, on the 3rd day of the Month of October A.D. 2017, former AFL Deputy Minister for Administration, Co-Defendant Joseph P. Johnson criminally and intentionally authorized Ecobank Liberia Limited to change the “AFL-Pension account title to AFL Moral and Welfare Account” without any evidence, Consultation, administrative decision, and or will and consent of AFL High Command, [thereby depriving] the owner aforesaid of the use of their property (fund).” This statement of the trial Judge shows malice against the defendants in this case. The charge of Theft of Property was not proven as per the definition.
Criminal Conspiracy: Conspiracy is usually described as an agreement between two or more persons to commit an unlawful act or to accomplish a lawful end by unlawful means. As quoted above, it was not wrong or illegal for the defendants to be signatories to the account hence withdrawals/requesting transfers and signing checks were legal. They were simply performing their responsibilities.
Payment of the US$460,000.00 to the AFL Pension Fund Account
This part of the opinion is very interesting. Page 21 the fifth paragraph from the bottom the second sentence reads “But in the instance case, it is a third party, the government of Liberia, who made the partial payment for a reason best known to itself.” The court acknowledges that partial payment of the money by the defendants was paid. As for the reason, this stated in the opinion on page 21 second paragraph and it reads “First of all, the court says, assuming argued that ex-president Sirleaf made a commitment to pay, and President Weah also made a commitment to pay, the Act of an individual president is not the Act of the government of Liberia. The government of Liberia is a Republican form of government that consists of three branches, the Executive, the Legislature, and the Judiciary branch. To legally obligate the government of Liberia financially, that obligation must be sanctioned by both Executive and legislative branches of government.” If the court is correct, it implies that the payment to the AFL Pension Fund is illegal and this put the Minister of Finance, Planning and Development in the shoe with defendants and the Solicitor General should have charged the Minister and his deputies by now for the crimes of Theft of Property, Misuse of Public Fund and Criminal Conspiracy. And this Supreme Court Opinion directly implies that there should be NO NEED FOR TRANSITIONAL MEETING EVER, because this opinion nullified all that were agreed between the two presidents.
Presently, there is No Law to deny the certification of Brownie Samukai from our research. In the words of Jerome Frank, a distinguished American Lawyer and
writer of “The court is on trial,” a legal novel from his experiences as a lawyer, Circuit Court Judge and Appeal Court Judge of the United States of America, he pointed out in this book and many of his other writings that the court from the lowest to highest do make some faulty judgments and this may be one of them.
There is a principle in law that states “The court cannot do for the party litigant what the party litigant should do for himself.” But in lower court judgment and the Supreme Court Opinion, we see the court doing for the party litigant, for example changing the charge of Public Fund to private fund just to get a guilty verdict. Ruling that the defendant pay US$460,000.00, which was not a charge in the indictment.
As we close this argument, we wonder what Justices C. L. Pearson, J. J. Dossen, F. E. R. Johnson, Louise Arthur Grimes, H. Nimine Russell, James A. A. Pierre, Henry Reed Cooper, James G. Bull and Johnnie Lewis would have ruled in this case? After reading most of the opinions written by these Justices it is easy to predict what it would have been. These Justices would have dismissed the charges of Theft of Property, Misuse of Public Fund and Criminal Conspiracy. A good Solicitor General would have charged the defendants for Misapplication. In law-Misapplication is defined as “The unauthorized, improper, or unlawful use of funds or other property for the purposes other than that for which it was intended.” My distinguished Solicitor General might have blundered.
The public is watching with eagle eyes and waiting anxiously.