PHOTO: Brownie Samukai leaving the Supreme Court with his supporters
By Garmah Never Lomo, garmahlomo@gmail.com
TEMPLE OF JUSTICE, Monrovia– The full Bench of the Supreme Court of Liberia has heard the appeal of indicted former Defense Minister Brownie Samukai against two petitions to stop him from being certificated by the National Elections Commission, after winning the most votes in last December’s Special Senatorial elections in Lofa County on the opposition CPP’s ticket.
But the highest court in the country on Wednesday, July 21, 2021 reserved ruling into petitions for Writ of Prohibition filed both by the opposition Movement For Progressive Change (MPC) of Simeon Freeman and the Ministry of Justice to stop Samukai’s certification, because he was convicted by the Criminal Court of stealing AFL soldiers’ money while serving as Defense Minister.
Corruption conviction and background
The nation’s highest withheld and modified the criminal court C ruling involving the former Defense Minister and one of his deputies and the Comptroller, saying that “the law extant in this jurisdiction that a person is guilty of theft of property when he knowingly takes misappropriates, coverts or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another with the purpose of depriving the owner there of.”.
The Criminal Court ‘C’ on Tuesday March 24, 2020 found former Liberian Samukai and his deputies guilty of corruption, but Defense Lawyers took exception to the ruling and announced that they will file Appeal to the Supreme Court.
Mr. Samukai had been facing trial for misappropriating some US$1.3 million. His leadership of the Armed Forces of Liberia had received huge amounts for the AFL’s Compulsory Contributing Fund, which the Government of Liberia had sent to the Ecobank Liberia, Ltd. It included US460,000.00 in addition to US$687,656.35, making a total sum of US$1,147,665.35.
But the Lower Court, presided over by Judge Yamie Gbeisay, said there has not been sufficient evidence to convict the former Defense officials of the crimes of Money laundering and Economic Sabotage.
In its February 8, 2021 ruling upholding the lower court’s guilty verdict and sentencing, the Supreme Court said it is also the law extant in this jurisdiction that all public officials and employees shall obey all lawful instructions issued to them by their supervisors and shall declines to obey orders they know or ought to know to be wrong or unlawful.
Supreme Court Justices
Consequently, the Liberian high court said officials and employees of government who are adjudged to have one unlawful order shall be held personally responsible and liable for their acts of Commission or omission as in the instant case.
Ongoing petition to stop Samukai’s certification
Recently, the Supreme Court Justice in Chambers, Joseph N. Nagbe had ruled against Samukai in a petition filed by the Ministry of Justice on July 9, 2021.
During the argument on Wednesday, the lawyers representing the NEC, Cllr. Wilkins Weight told members of the Supreme Court bench that NEC shouldn’t have been part of the two Petitions filed by MPC and Ministry of Justice.
Cllr. Wright argued that NEC does not take side but that they are responsible to conduct elections and pronounce winners adding they are going by what the court will say.
The NEC Lawyer also argued that Prohibition cannot lie upon the NEC and he prayed court to deny the writ of Prohibition against them because the NEC has not violated any law.
Also arguing his side of the case on behalf of his client, Brownie Samukai, Cllr. Wilfred Sayeh said section 3.1 and 3.23 of the New Election law can’t be applied in this case because the sentence was suspended against his client.
Quoting section 50.12 (a) of the new law, he said that his client can enjoy his Civil liberty but this section was rebutted by state lawyers stating that section 50.12(b) prevent convict Samukai from certificated.
Cllr. Sayeh further argued that the Chambers Justice Joseph N. Nagbe July 9,2021 decision was wrong but request court to set aside section 3.1 and 3.23 of the new Election law set aside.
Also appearing for the Ministry of Justice was Liberia’s Solicitor General Cllr. Syrenius Cephus argued the purpose and content of their Petition has been misinterpreted. But prior to their argument, they filed an application requesting court to Cllr. Wilkins Wright to rescue himself on ground that he has been a lawyer for Brownie Samukai from the lower court up to the Supreme Court.
So serving as lawyer for NEC is a conflict of interest but members of Supreme Court bench says because they don’t sufficient information in order for them to make an inform decision on Cllr. Wright’s recusal, they will check the record and if Cllr. Wright is found liable, he will be penalized, the Liberian Solicitor General said.
Cllr. Cephas told the full bench of the Supreme Court that Brownie Samukai is a judicially disqualified convict who should not allowed to hold public office and should have participated in the election.
The Liberia’s Solicitor General defended Justice Nagbe that he was not in error by granting the peremptory writ and they therefore prayed court to confirm and affirm the Chambers Justice decisions.
However, while the hearing was ongoing some youth of the CPP were on the ground of the Temple of Justice protesting and demanding speedy trial of the matter
Meanwhile, the Supreme Court it will announce its ruling in due course, promising to serve notice of assignment.
Justice in Chambers earlier Ruling
On July 9, 2021, the Chambers of Justice Nagbe at the Temple of Justice, but lawyers representing former the Defense Minister said they were not surprised about Justice Nagbe’s ruling.
In his ruling he said: Given the arguments and contentions advanced before this Court and taking cognizance of all the law citations contained in the pleadings of the parties, there is one issue determinative of this case, and it is whether or not in view of the foregoing facts and circumstances Prohibition will lie?
Justice Nagbe said, the petitioner in these proceedings is the Ministry of Justice which has the statutory responsibility to ensure the enforcement of the law as provided for in Subchapter A, section 22.2 of the Executive law, hence the Ministry cannot sit supinely and witness the violation of the law especially as it pertains to criminal matters.
He further said besides, the Ministry of Justice is the legal representative and lead Counsel of the government of Liberia to include all it’s Ministries and agencies.
The first respondent, NEC is an agency of the government as done in the Ministry’s communication dated October 26,2020, in which it notified the NEC to observe section 3.1 of the New elections law of Liberia in the light of the fact, the 2nd respondent J. Brownie Samukai has been Indicted and convicted by the court below for the crimes of theft of property, criminal conspiracy and misused of public money and is therefore disenfranchised to participate in the December 8,2020, Special Senatorial Election for Lofa County.
No other Ministry in this Republic is more situated to have played the advisory role regarding the decisions of the first respondent NEC, in declaring who is qualified and competent to participate in election in Liberia the ruling added.
This Court says that the petition filed by the Ministry of Justice is the right thing to do by way of ensuring that the laws are complied with especially in this case.
The Court takes cognizance of the contention of the second respondent that Prohibition cannot lie against a person rather a tribunal an agency or institution. This Court observed that the inclusion of the second respondent is to provide complete relief if the petition for the writ of Prohibition was to be granted for the second respondent stands to be direct beneficiary of the non issuance of the writ of Prohibition. In this case, this court that the NEC is the principal respondent whose action the petitioner prays this court to inhibit or prevent from certificating the second respondent J. Brownie Samukai who is now placed under legal disability because of his conviction to occupy a public office unless his disability is removed in keeping with the law. In this case Prohibition will lie against the first respondent as well as the second respondent.
The second respondent raised two collateral issues which this court must also pass upon. The second respondent contended that the decision of the Chambers Justice, His Honor Joseph N. Nagbe to grant the issuance of the writ of Prohibition against the NEC and the second respondent, J. Brownie Samukai, is the usurpation of the power and authority of the Honorable Supreme Court of Liberia in that no single justice has the the right to undo or reverse the mandate of the Supreme Court of Liberia as done by Mr. Justice Nagbe in this case.
As we transverse, this issue in our ruling in the case MPC vs J. Brownie Samukai Jr., we wish to reiterate that the Supreme Court did not issue a mandate to the first respondent, NEC to certificate the second respondent J. Brownie Samukai.
It is important once again to put into proper perspective this contention by the second respondent that Mr. Justice Nagbe reverse or set aside the mandate of the Supreme Court of Liberia issued during the October term 2020 in the appeal heard and determined by the Supreme Court in which it upheld the final ruling of the first respondent NEC, and therefore ordered the NEC to resume Jurisdiction and proceed according to law. The matter out of which this mandate grew was about a complaint filed by some voters of Lofa County who alleged election irregularities against the victory of the second respondent which complaint the NEC found to be unfounded and therefore dismissed the Supreme Court in its Judgement didn’t mandate the NEC to certificate the second respondent.
Since such mandate was never issued by this court, the Chambers Justice Joseph N. Nagbe acted within the orbit of the law when he ordered the alternative writ of Prohibition issued against first and second respondents.
The second collateral raised by second respondent, J. Brownie Samukai in his returns is that why it is true that he was adjudged guilty by the trial court and therefore sentenced to jail for two years and ordered to restitute the total sum of one million, one hundred forty-seven thousand, six hundred fifty-six United States dollars (US 1,147,656.35) and thirty-five cents unaccounted for, but the Supreme Court suspended the sentence of imprisonment and further ordered him to restitute 50% of the amount quoted hereinabove within a period of six months and that the balance be paid subsequently, such suspension of the sentence amounts to waiver of the crime charged.
This court disagreed and says that suspending a jail sentence by a court does not negate the fact that the crime was committed by the Defendant but simply indicates that the defendant as in the instant case, has had no past Criminal records which could compel the court activate the jail sentence unless the defendant violated some court imposed conditions.
It should be noted that the Supreme Court, in affirming the ruling of the trial court, conditioned the suspended sentence on a foundation that the failure of the convicts, including the second respondent J. Brownie Samukai, to restitute 50% of the amount, the sentence would be reactivated.
This decision, to the understanding of this Court, means that the second respondent is still a convicted felon.
This Court indicated earlier in this Ruling that Prohibition would lie for the reasons stated herein and the contention of the second respondent also discussed has left this Court with no other alternative but to grant the issuance of the writ of Prohibition.
WHEREFORE, and in view of the foregoing, this Court holds that the petition for the writ of Prohibition being properly applied for and taking into consideration the controlling laws cited, the petition is hereby granted. The clerk of this court is ordered to issue the peremptory writ of Prohibition, send a mandate to the first respondent NEC, disallowing the certification of the second respondent, J. Brownie Samukai Jr. until his disability imposed on him by his conviction is removed according to law and it is hereby so ordered