By: Wonderr K. Freeman, CFCS, Attorney     Originally Published in February 2023

Liberia votes come 2023. There are, ostensibly, many great speeches about the necessity of free and fair elections – from the opposition, as well as the ruling party. But in truth, free and fair election is a process – not an event. Those who are waiting for October 2023 to ensure free and fair elections will be late – as in too too late. The road to free and fair elections in Liberia is months and months of hard work. Of course, as we move toward October 2023, there is no question as to who is leading this process. For now, it is Mrs. Davidetta Browne Lansanah, the Chairperson of Liberia’s National Elections Commission (NEC). And I’m shocked that interested participants seem to be okay with Cllr. Browne-Lansanah as Chair of NEC. I say seem to be okay because, so far, there are only murmurs of dissent in what is supposed to be real a case of real “noise” and “yo-yo” over our election process being led someone who is currently in “legal limbo”. Of course, the popular news reports have it that charges against the NEC Chair were dismissed. But words can be tricky. Does the dismissal of an indictment against the NEC Chair amount to being legally cleared? And if not, should we risk our peace and progress, howbeit snail-paced, by having such a crucial national process being managed by an individual who leadership represents a legal risk for graft or other illegalities, or worst yet, risk of blackmail via threat of prosecution? These are the questions I intend to unravel in this article.    

What Does it Mean to Dismiss an Indictment Under Liberian Law?

An indictment is a written document drawn up by government lawyers (i.e., prosecutors) to the effect that they honestly believe there’s available evidence that an individual has committed a crime – and, as such, they want to put the accused on trial. The best way to dismiss an indictment is to have the prosecutors admit their evidence in court, have it cross-examined and have the jury or judge decide whether it is sufficient to find the accused person guilty (or not guilty). There is an alternative, of course. The alternative is to have the government openly declare that they are dropping charges altogether. Also, many times a case may be brought to an abrupt end before the trial can start (i.e., before the evidence is presented, cross-examined, and submitted to the jury or the judge). Under Liberian criminal procedure law (and for most common law countries), there are provisions for pre-trial dismissal of an indictment. This includes:

1. Dismissal by court, upon request by government lawyers (prosecuting attorneys). Under this scenario, prosecutors may say we changed our minds (professional discretion). Government lawyers have the unquestioned right to drop some of the charges or all (Ref: 2LCLR, §18.1). This legal provision is used frequently if prosecutors want the cooperation of an individual who played a minor role in the crime but who have much useful evidence against the masterminds of the crime.

• Dismissal by court – upon request by defense counsels. In this case, the defense counsels request the court to dismiss the indictment for prosecutors’ delay beyond the time frame the allowed by law. It could also be that prosecutors got some things wrong with the initial indictment (i.e., wrong charges, mistaken identity, on any other legal technicality). If any such issue is the case, defense lawyers may ask the court to dismiss the indictment on this ground. (Ref: 2LCLR, §18.2/18.3; see also 1LCLR, §11.2 on pre-trial motion generally)

Under Liberian law, any dismissal of a criminal case/charge – dismissal of an indictment – prior to admission of evidence, cross-examination, and/or prior to presenting such evidence to the jury or the judge is not a full and complete legal clearance. Government lawyers reserve the right to “improve” upon the indictment and reissue it, as warranted (2LCLR §18.3). Under Liberian law, dismissing an indictment under either §18.1 or §18.2, is understood by lawyers, generally, as an attempt buy time. It could be the government lawyers want to buy time or it could be the defense counsels buying time. For the accused, it’s not over until the case goes to court and a not-guilty verdict emerges, or where the government openly declares that it is closing the case and dropping [ALL] charges. Any other scenario is temporary. In the case of NEC’s Chairperson, I’m unaware of any such pronouncement by state prosecutors.

There are many cases to cite to establish this point, but let’s take this fairly recent case. In the case Ware v. R.L [2012] LRSC 10, involving Dr. Lawrence K .Bropleh, and two the staffs of the Ministry of Information. Accused of graft and theft, Dr. Bropleh’s legal team moved for dismissal on ground number [2] and tagged to its request “with prejudice”. In essence, Dr. Bropleh’s legal team wanted a full and complete dismissal. The trial judge, Hon. Ware, granted the request, without clarifying that the government reserves the right to re-indict and retry. The case reached the Supreme Court and “as a side issue” the court clarified that the Judge Ware was in error for NOT stating emphatically that the government reserves the right to re-indict and retry the case. Here is the ruling of the Supreme Court in its own words.

But even if the trial judge was within the pale of the law by dismissing the case against the defendant under the facts and circumstances as stated herein, he still could not dismiss the case with prejudice. By dismissing the case with prejudice to the state, the trial judge had foreclosed and prohibited the state from bringing any future action against the defendant on the same claim. Section 18.3 of the Criminal Procedure Law provides: Dismissal of an indictment or complaint under section §18.1or §18.2 or at any time before the jury is impaneled and sworn or, if the case is to be tried by the court, before the court has begun to hear evidence, shall not constitute a bar under the provisions of section 3.1 to a subsequent prosecution. Ware v. R.L [2012] LRSC 10.

The Politics of Indictment under the George Weah’s Government

If you follow the news, obviously, you will get the impression that NEC Chair is cleared. But I have shown here that, in so far as the NEC Chair’s case did not get to the stage of evidence submissions, cross-examinations, and consideration by the jury or the judge, then unfortunately, Madam NEC Chair is not yet legally cleared, especially since, as things stand, the government has not openly announced the dropping of ALL charges. What this means is that the government, can, at any time, decide to brush up their old files and come for her. Of course, as a lawyer, the NEC Chair knows this already, as is the MOJ/LACC’s attorneys, and all the defense counsels involved. So, the curious question is: if the MOJ and the LACC know this, why are they not taking any action, for or against? Here is the sad truth. For this George Weah/CDC government, the law is simply an extension of party politics, nothing more, nothing less. Prosecution or non-prosecution, under this CDC regime, is always perennially a political calculus. When it’s politically expedient, they prosecute. Where there’s nothing to gain politically, then there’s simply no prosecution. This is about the most consistent inconsistency of the George Weah’s administration. Here are couple examples.

1. The Brownie Samukai’s case (i.e., Theft and Misapplication). Remember the CDC government “entered” an agreement with BJ Samukai that the government will pay back soldier’s savings misapplied by Samukai and others, even thought they were aware that Samukai and some yes-men at the Ministry of Defense had abused their fiduciary position. But in 2018/2019, the Ellen-UP/CDC honeymoon was fully on, and CDC had no political incentive to go after Samukai. All that changed, however, when Samukai opted to contest in the [2020] Lofa senatorial election. The Ellen-UP/CDC honeymoon was declared officially over. The CDC government simply dusted up their old files and brought criminal charges against BJ Samukai. In the Samukai’s case, once Samukai was subdued and submitted himself to the “country giant” political supremacy, the MOJ sprang into action helping Samukai get “suspension” of his prison sentence. For his now “good political behavior”, Samukai even got a bonus – the now infamous “150-year repayment plan”. For this CDC government, it’s never about the AFL soldiers’ pension, nor the constitution, nor even the people of Liberia. For this CDC government, it’s all about submission to the will of Weah, always, every time.

• The case of Senate Secretary and former National Investment Commission Chairman (i.e., Naborlor Sengbe’s and George Wisner’s joint indictment and re-indictment on theft of property, forgery, and criminal conspiracy. Recall the indict, drop charges, then reindict merry-go-round? This indictment merry-go-round is typical of state prosecutors under the CDC regime. When it suits CDC politically, MOJ/LACC indicts; if not, they drop charges or simply refuse to indict. They are just so happy to look the other way. After all, Wifey and kids gotta eat!

• The case of Bill Twehway, Kanio Gbala et al, ex-Managing Director (NPA) and current LACC Vice Chairperson. Th gang of CDC loyalists was accused of milking the National Port Authority (NPA) of close to half a million US dollars, but the government’s investigation report never saw the “light of day”. No indictment was ever drawn up. And it’s unlikely any will ever be. Because, for George Weah and his CDC government, the office of the public prosecutor is just another “wing” of the party – just like the [CDC] “youth wing or the “women wing”. Under such circumstance, indictments are ONLY for people who annoy the CDC’s standard-bearer or for people who disrespect Liberia’s “best Prezo ever”. For now, these accused officials REMAIN loyal to the regime. So, evidence notwithstanding, there will simply be no indictments nor prosecution forthcoming. That’s the George Weah/CDC regime M.O. since taking office.   

I could list dozens of such examples. There are certainly as many. Like the multiple allegations of brutality, aggravated assaults and worse – against Jefferson Koijee, who has never ever been placed under any formal investigation, let alone indictment. Under George Weah/ CDC’s government, an accused status as a “loyal partisan” takes precedence over the constitution of the Republic of Liberia and over the interest of the state. As shameful and as repugnant as this is to the notion of civilization, that’s exactly what it is. For now, I suppose these few examples make the point well enough viz: Everything is politics for this regime – even indictments and prosecutions.

The Risks NEC Chair’s Re-indictment Poses for Liberia’s Election

I have established that, so far, the NEC Chair is not legally cleared, in so far as the dismissal of her indictment was done under subsection §18.1/§18.2 of the Liberian criminal procedure. I have also established that for this CDC government, the decision to prosecute is strictly a political affair. If it is beneficial to the party, MOJ/LACC prosecutes. If not, then there’s no prosecution. As simple as that! I have given concrete examples of how the CDC government uses the prosecution strictly on the basis of political calculations. Now, what does all this have to our October 2023 elections and the current NEC Chair? I explore this issue next.

• #1: The Risk of Legal Blackmail

The NEC Chair has an indictment that can be switched on at any time. This “hanging” indictment is for felonies (i.e., very serious charges). As such, the NEC Chair is very susceptible to legal blackmail by the CDC regime. The regime could make her a request, and if she drags her feet or dilly-dally, of course, they could dust off the “hanging” indictment and initiate criminal proceedings. Brownie Samukai can relate. Of course, at this point complying with the regime will be in her best interest and most pleasing to the CDC, but detrimental to the country. What’s the likelihood of this happening? It depends. What we know for sure is that CDC sees prosecution in purely political terms, and if they figure they could get political capital from blackmailing the NEC Chair, my sense is they will not hesitate at all to use such leverage. Certainly, they have a long history of doing this. Should the person who leads us into our October 2023 elections be under such risk? That’s the question we all as Liberians need to answer now or never.

• #2: The Risk of Repeating the Offense

The second risk of course is that if a corrupt individual is not brought to book for an [alleged] crime, then they might never entertain second thoughts about repeating such acts. In the case of NEC Chair, this looks much more likely. A woman who, as NEC Chair, despite her fiduciary responsibility to NEC, got NEC to deal with her brother’s company at “jacked-up” prices, is likely to continue such fraud because she “screwed” the government and got to keep the proceeds. She won; Liberia lost. Who does want to win again, if given the chance? How far will she go for money? Many elections participants are risk-takers. They could make her an offer too good to turn down. Maybe we all want to be “second fool”. For me, this is just too much risk for Liberia! It’s not worth it. Not at all.

• #3: The Risk 0f International Community’s Disengagement

The third risk (and equally serious), it the fact that the international community already knows about this case and is disappointed at the Liberian government’s failure to act. And, since they cannot force a sovereign government to take action, such as removing a public official from office, they can, however, always withhold financial and other technical assistance from NEC, on account of the fact that it’s Chairperson has no integrity whatsoever to lead a integrity-based process. Of course, poor Liberian needs as much help as possible for foreigner partners – financial, technical, logistical. Why should poor Liberia take such a risk, when it’s so much easier to just ask the NEC Chair to step down?

Who are the stakeholders and What Can they do?

Of course, we could all appeal to President Weah to remove this legally-compromised NEC’s Chairperson. However, experience shows this is very unlikely. The political tides are turning against George Weah and the CDC government, so it will make more sense for him to keep open the possibility of a NEC Chairperson whose “prosecution button” can be switched-on or off, at will by CDC. I’m no soothsayer, but after five years of watching CDC government in action, my sense is that they will stick with her, since her legal vulnerability is valuable political capital to them. So much so for the man who has Liberia at heart!  

Our constitution provides that “all power is inherent in the people”. So, the people, acting directly, or through their elected representatives, can act. But expecting intervention from the National Legislature is a long shot. For the past five years, we have regularly witnessed our National Legislature in action, and they have disappointed us time and again. Maybe they will put their foot down on this matter, as many of them are themselves contestants. They can call a public hearing on this matter and solicit legal opinions from the public. And if this public hearing confirms my argument, then the National Legislative can declare a vote of no confidence in the NEC Chair. Will the Legislature act to save the state? Only they can say. The ball is also certainly in their coat.

Other stakeholders include political parties, composed of citizens across the country, who stand to be disenfranchised by election fraud or other illegalities. But when will their infightings stop, so that the necessary advocacy and rectification can be done? We also have civil society groups as stakeholders. They can jointly issue a vote of no confidence in the NEC Chair and “blow the whistle”. Their actions may be largely symbolic [locally or legally] but could end up being hugely significant [internationally]. The international community gives a lot of credence to the voices of independent civil society groups.

Overall, I think it is a very bad idea to allow a legally-compromised individual to lead Liberia into these [2023] elections. We should always remember that elections are won at the polls, not in the courts. Certainly, I think that no one has a “constitutional right” to a high-profile government job. These jobs are for our most esteemed and eminent citizens. The job of the NEC Chair is most definitely NOT for an individual who is in “legal limbo”. The stakes are just too high. In Libera, we prefer to do nothing – and let the damage to occur first. Let’s not allow our 2023 elections to be subjected to our business-as-usual culture. I hope I have made some sense. Those who have ears, let them hear. And, of course, those who have a responsibility to act, let them act.