Wonderr K. Freeman, CFCS, Attorney

Fighting corruption is clearly a legal matter. In Liberia, unfortunately, there is a long history of ruling elites “playing politics” with the fight against corruption. In Liberia, the appearance of fighting corruption is far more important than actually fighting corruption. If one looks at the way things play out in Liberia, it’s not far-fetched to say that “to appear” to be fighting corruption is “good politics”, and to actually fight corruption is “bad politics”. If you look at the shenanigans being played out with New Anti-Corruption Commission (NACC Act of 2022) by the CDC-led government, and before that, similar shenanigans by the UP-led government, it’s hard to reach any other conclusion. In this article, I shall do a comparative legal analysis of the NACC Act (2022), against the LACC Act (2008), to see if this new law was changed for the better, or if the “change” was just another gimmick. I employ similar comparative legal analysis to show this trick was done during Ellen Johnson-Sirleaf’s administration on the issue of the Code of Conduct (CoC) Act of 2014. All those “experts” in the international community were no match for Ellen Johnson-Sirleaf “sugar tongue”. She told them what they “wanted to hear” on the anti-graft fight, and they poured in the millions. And when it came to “walking the walk”, sadly, she chickened out. Now “change-for-hope” President George Weah, he is dutifully copying all the Johnson-Sirleaf’s strategies. And this is worrisome, especially for the fight against corruption in Liberia.

A Historical Backdrop to the Passage of the NACC Act of 2022

Before delving into the “restated” NACC Act of 2022, it is important to get the political backdrop. Cllr. Edwin Kla Martin and his right-hand man, Cllr. Syrenius Cephus, had been super useful “hatchet-men” for the CDC regime in the hounding of opposition politicians, as well as the silencing of critical voices. And so, the CDC trusted Cllr. Martin enough to send him over at LACC to continue similar malfeasance. To the shock and dismay of the CDC elites, Cllr Martin started “investigating” top regime ministers – a political faux-pas under the CDC regime. So, tenure or no tenure, Cllr. Martin had to go. It was clear from the end of the July 2022 Cabinet retreat in Nimba, that Martin had to go. And, just like the Johnson-Sirleaf/UP-led government and the mutilation of the CoC Act (2014), President Weah had no shortage of willing participants (including opposition members) to “restate” the LACC Act (2008). Of course, the legislators, the majority of whom are opposition, had their own interests for collaborating with CDC to “reform” the LACC.  After all, President Weah still controls the national budget – Liberia’s political jackpot. Remember 2023 is only a few months away and the politicians need campaign funds for “legislative projects”. Different historical epochs, yet the same fundamental issues at play: Liberia’s anti-graft laws and institutions being watered-down and rendered powerless for political purposes.

The NACC Act (2022): In the Interest of the People or in the interests of the Kleptocrats?

Apologists of the CDC government are quick to tell you how the NACC Act (2022) was donor-inspired and supported. After all, if the new law was changed at the behest of the IMF, The World Bank and other international partners, then what is there to oppose? You recalled the Nimba Cabinet retreat ended on July 13, 2022. In less than a week, both houses of the Legislature had passed the new [LACC] law. It’s worth noting again, that the opposition parties have majority members in the Legislature. But when it comes to shielding kleptocrats from accountability, they is a strange unity across the board. This is perhaps the fastest ever bill passed into law. In another one week, Mr. President attached his signature, thereby making it the law of the land. Since the CDC government claimed that the law was changed at the behest of the IMF, The World Bank, and other international partners, I’d dearly like to know, if these international partners also approved the passage of new law with zero inputs from the Liberian public? Liberia is in deep-deep trouble if laws that affect the entire society are passed in seven days – with absolutely no input from the public. This is a callous disregard of the general public.

In trying to comparatively analyze the NACC Act (2022) versus the LACC Act of 2018, I shall look at issues of selection procedure, decision making, assets freezing powers and at time compare it with the established global standards. There are many more areas of concern that look like retrogression, but in the interest of brevity, I will just do a few points to underscore the fact that the “revision” done by the CDC regime, with the help of many “opposition” members of the Legislature, is not at all in the interest of the Liberia people, but solely in the interest of the kleptocrats.

• Composition of the Board of Commissioners

Whereas, in the old law – 2008- the Commissioners were [exclusively] nominated by the President, subject to confirmation by the Liberian Senate (LACC Act 2008, Part VI, Sect 6.2). Now, this new law (2022) is supposed to bring the change. Now, as a “change”, the NACC (2022) will have a 17-member ad-hoc recruitment committee set to select commissioners. Here is where the CDC “deviance” shines brightest. Out of the 17-member, Mr. President will directly appoint 9-members (an effective majority). But that’s not all, his appointed GOL officials will then appoint another 2 members, topping up his majority to 11 members (i.e., making his total control of the ad hoc committed at 65%). After securing 65% of the vote, they will now invite the LNBA, the PUL, civil society groups, and other international partners to appoint additional six members (ref. NACC Part VI, Sect 6.10). Now, how about not wasting the Liberian people money by not bothering with any ad hoc committee and just allow Mr. President to make his decision? When people set up a search committee to recruit executives, it is precisely to forestall a predetermined outcome. Now you have already predetermined the outcome of the selection process by allowing the President to appoint 65% of the selection committee members. Maybe that’s’ change-for-hope at work, it’s definitely not change for the better.

• Assets Freezing while under at Indictment or at Prosecution   

Under the old law (2008), it was sufficient if a court order was gotten – in order to freeze assets pending or during prosecution. Under the “new improved” law (NACC 2022), additional requirement to freeze assets comes into play – “provided further that such person is unable to post bail”. Now if the old law gives you two conditions precedent to freezing assets, and the new law now requires three conditions, court order, warrant, plus inability to post bond, is it not making it more difficult for the LACC to do its job? Just by counting my fingers, I know that three conditions are more difficult to meet than two conditions. Even worse, posting bond does not solve the problem of dissipation of assets for economic and financial crimes. An individual can post a bond, dissipate the assets during the trial and by the time the trial and appeal processes are over, there is no assets to confiscate. To me, it is no use of authorizing the LACC to confiscate stolen assets – post trial – ref [2022] Part IV, Sect 4.1(f), while, at the same time making it virtually impossible for the very LACC to “freeze” stolen assets (ref [2022] Part IV 4.1(e.). Without freezing of assets, confiscation/assets recovery is virtually impossible. Consider the following global conventions and note the emphasis they place on freezing as best way to preserve “stolen assets” for recovery or confiscation. There is a clear reason why none of these conventions created any exception for “inability to post bail bonds. The global standards say:

UN Convention on Corruption: Freezing, Seizure and Confiscation

Each State Party shall take such measures as may be necessary to enable the identification, tracing, freezing or seizure of any item referred to in paragraph 1 of this article for the purpose of eventual confiscation. (UNCAC, Chp III, article 31)

Financial Action Task Force (FATF) Recommendations

Countries should adopt measures similar to those set forth in the Vienna and Palermo Conventions, including … such measures should include the authority to: (b) carry out provisional measures, such as freezing and seizing, to prevent any dealing, transfer or disposal of such property; (c) take steps that will prevent or void actions that prejudice the State’s ability to recover property that is subject to confiscation; and (d) take any appropriate investigative measures. (FATF 40, Rec. #3, 2003)

• Assets Declaration – [LACC], Regulate but don’t Regulate (Sanction)   

On assets declarations by public officials, the NACC (2022), for once took a step forward – by bringing custody and responsibility back to the LACC. And before I could clap for this, they added the exact opposite (like minus-plus – a step forward and a step backwards). Here is the thing: the NACC (2022) asks the LACC to regulate assets declaration regime (ref Part V, sect 5.2 §(p)(iv-v). And then, in the same breath, the law ask them not to regulate (i.e., not to sanction) defaulting officials [ref (2022) Part V, sect 5.2 §(p)(vi)]. Here is the subsection viz: [ie, the LACC must] Recommend to the [National] Legislature for enactment into law sanction(s) for breach of the assets’ declaration guidelines.

If the Legislature knew that the sanctions were necessary, why didn’t they just create a range of [sanctions] options to facilitate the LACC’s work? What sense does it make for LACC to (1) write guidelines/regulations (2) wait for people to violate, then (3) write back to the Legislature recommending the passage of “another law” to sanction defaulting officials? This a freaking hilarious. Who regulates without the [inherent] power to sanctions? Even at home, when daddy puts up a “regulation” that nobody comes in the house after midnight, JuniorBoy or BabyGirl must be home before midnight, or they will be flogged or perhaps sleep outside for the night. Yet, going by our Legislature’s logic – daddy must now call the community chairman, and ask him to come up with an action plan! Not surprisingly, Liberia keeps setting anti-graft world record. No long ago, GOL give disgraced ex-defense minister, BJ Samukai, 150+ years to “repay” stolen funds. Wouldn’t it have been a different story if Samukai’s “assets’ had been frozen at his indictment or at trial? There would have been no need for 150-years payback “agreement”. But again, this too is Liberia! We set world records for all the wrong reasons.

For example, the case of the Global Magnitsky Human Rights Accountability Act (2016). Like the NACC Act (2022) and the CoC (2014), it’s also a statute. But it was not the statute that booked the three Liberian officials directly. It was the Global Magnitsky Sanctions Regulations (regulation# 31 CFR Part 583), administered by OFAC/Department of Treasury. On the contrary, our lawmakers are saying that LACC must come up with “regulation” on the assets’ declaration regime, and if they see anybody in violation, then they call them to pass a new law for sanctions. This is legislative malfeasance, plain and simple. It seems to me this malfeasance is deliberate. It’s clearly an Executive-Legislative collabo to shield kleptocrats from accountability. Opposition politicians and their CDC pals at the Legislature are really determined to destroy Liberia by all means necessary. This is change surely, but definitely without the hope!   

• Packing the LACC – Creating an Palava Hut at LACC?

As someone who worked for the LACC, I know for a fact that many past consultants found that the LACC had too many “chiefs” and not enough investigators and prosecutors. That was when the LACC had five (5) commissioners. The CDC-regime and the opposition politicians at the Legislature, have now jointly decided to “reform” the LACC. One would think that they would have cut the number of commissioners from five to three or two, to save resources for more investigators and prosecutors. But no! That’s now how Liberia works. Instead, the number of commissioners was increased to seven (7). In an era of limited resources, this necessarily means less logistics, fewer investigators, and even few prosecutors. If anything, this new law represents a step backwards. Remember, it costs at least USD100k per commissioner per year – counting salary, vehicle maintenance/depreciation, gas supplies, other executive allowances. Now you are going to have seven of them – that’s US$700,000 per year – just for commissioners. An anti-corruption commission is not a “parliament” or a “talk-show”. It operates of law, facts, and evidence, and it’s certainly not for “speeches”. Parliament does that, already.  I don’t know of any serious country that has an anti-corruption that has 5-member full-time commissioners, let alone seven members. By the time the GOL caters to seven (7) commissioners, pays office rent and other admin expenses, nothing will be left over for the actual anti-graft investigations or prosecutions. Countries with much bigger economies have just a director and at most two deputies. Check out these countries for yourself, including, for example, USA/FBI, Nigeria/EFCC, Botswana/DCEC, HongKong/ICAC, Singapore/CPIB. Why does poor Liberia need seven commissioners? Why? Can we afford seven commissioners? The table below says no, no, no. We just can’t!?

• Same Shenanigans with President Johnson-Sirleaf and the Code of Conduct Law

Now, I just lay bare that the political elites in both the Executive and the Legislative branches of government conspired to torpedo the LACC Act (2008) to make it weak and ineffective. In speeches, they proclaim they are interested in fighting corruption, but their actions in changing the law to make the LACC even weaker is diabolical. The reason is simple: the elite from both branches have a mutual interest in ensuring that GOL kleptocrats never get the justice they deserve. In this part of the essay, I maintain that this is not new, they are just following in the footsteps of former President Sirleaf.

Like the current LACC, in 2013, LACC came up with two investigative reports on the assets’ declarations filed by public officials in the Executive branch. I know because I worked there for 4.5 years and lead the first assets verification team. At the time, Madame President struggled to get the other two GOL branches to agree on a general code of conduct law. With Madame President regime heavily donor-funded, she had to do something to keep the donors happy. So, she went solo with an administrative CoC – via Executive Order (N^o 38) – only for officials in the Executive (January 6, 2012) and made LACC the “repository” institution for the filed declarations ([2012] Part X, sect 10.2). On May 20, 2013, LACC came up with its first verification report on declarations filed with it. As expected, there were multiple violations – ranging from deliberate false declarations to unexplained wealth accumulation, to flat refusal to submit to the verification process. Again, on September 15, 2013, LACC again filed a second assets verification report, with same mix of violations. Just like the Cllr Martin case, the report caused a stir. Now, CoC [2012] Part X, sect 10.2, made it clear that that “false declaration by political appointees was tantamount to SUMMARY DISMISSAL. And for other public officials (i.e., for civil servants, SUSPENSION followed by investigation or trial). In total, the LACC completed 140 individual verifications and found 47 violations.

Now, here is a President who had declared corruption as public enemy #1 from day one. She finally got an opportunity to show that she meant business. Like I stated earlier, under the CoC, which was administrative in nature, summary dismissal or suspension was to follow. But of course, Madame President’s legendary anti-graft fight was in truth no fight at all; it was simply a scam to “milk” the gullible donor community. Forty-seven violations, not a single person was every dismissed or suspended. Instead, it was the LACC that came under suppressive fire. Not for us the investigators, but for our bosses. A deluge of negative press swiftly followed. And what did Ellen Johnson-Sirleaf do? Of course, she never supported the LACC. In fact, she in particular started raising questions as to what authority did LACC have to investigate assets declaration when the CoC Act said “be the repository”? So, again, just as in the Cllr Martin’s case, Madame President went over to the capital building to work with “natural” allies to ensure that the LACC never ever touch any more “assets declaration”. True enough when the “new CoC law was passed May 12, 2104, the new “repositories” were: (1) Secretary of the Senate as custodian for the House of Senate, (2) Chief Clerk for the House of Representatives, (3) General Auditing Commission, for the Executive Branch, (4) Clerk of the Supreme Court for the Judiciary. And LACC? Well, Madame President thought they misbehaved, so no more repository task for them. If they want to investigate “asset disclosures”, they must now go to the other branches and ask for the documents (ref CoC [2014] Part X, sect 10.2).

Moreover, the new law called for the Office of Ombudsman (CoC [2014] Part XII sect 12.1-12.2). Note that the law was signed by the President on May 12, 2014. Remember also that she turned over power in January 2018 – more than enough time to set up the office of Ombudsman. Did she do it? No. Not at all. Like I said, there was never any intent by President Sirleaf. It was just a scam for donor dollars. Neither has the CDC government done so. They’re simply not interested. The Office of Ombudsman remain in limbo.

The CDC was the “majority party” in 2012. But when it comes to protecting kleptocrats, there is total unity amongst Liberia’s political elites. To be fair the lawmakers (in 2014) had two other important reasons for supporting the President’s desire to weaken the LACC – just like the President Weah’s case. The one year it took between the LACC assets verification first report (May 2013) as the passage of the CoC Act (May 2014) was equally astounding. Recall that CoC Act had lingered on Capital Hill for five years plus. Many had given up that the law will ever be passed. Then the marriage of convenience for continued impunity for kleptocrats occurred naturally between the UP-led government and the CDC dominated Legislature. Below are the two reasons:

Reasons #1. Many of the lawmakers were deeply involved in multiple “conflict of interest’ cases (aka corruption cases). Many had set up their own companies “to implement” county development. In the process, lots of funds went unaccounted for, and unfinished “development” projects littered the countryside. Any action to help contain and weaken the LACC was a “worthwhile” and “expedient” venture – including “stripping the LACC of their power to investigate assets disclosures”.

Reason #2: There was another convergence of malignant interest: to stop Dr Mills Jones from running away with the 2017 elections. Dr Mills Jones, the snobbish former governor of the Central Bank of Liberia, like most public officials in Liberia, was simply unable to distinguish between money that belong to the Republic of Liberia and money that belongs to Mills Jones. Hence, CBL money was “fair game” to launch his presidential ambition. So, the Code of Conduct Act which had lingered for 5-6 years suddenly got a 4G passage – with the insertion of Part V, sect 5.1 and 5.2.

Conclusion

In this article, I established that the NACC Act (2022) will not strengthen the LACC. If anything, it will surely weaken the LACC structurally and also leave it bereft of resources to investigate or to prosecute. I established that the opposition politicians at the Legislature were willing to work with the CDC-led government once the object of the collaboration was impunity forever. It’s clear from this article that our political elites often say that they favor accountability, then they do the exact opposite. I also went back in history to show that this conspiracy of kleptocrats is not CDC invention. President Sirleaf/UP government, in 2014, did very similar acts by collaborating with the opposition (i.e., CDC lawmakers) to strip the LACC of its “ability to receive/verify assets declarations”. In the first instance, it was a UP-Executive-CDC-opposition collabo to ensure impunity for kleptocrats; now it’s a CDC-Executive-Opposition collabo to ensure impunity for kleptocrats. No society tolerates impunity from its leaders forever. Eventually things implode. Liberian history and global history are replete with catastrophic consequences when the people have had enough. This current political myopia is as astounding as it is disappointing. Those banking on “forever and ever” impunity must awake and change course before it’s too late.  Nothing lasts forever – not even impunity!