Authors: Wonderr K. Freeman & Marc N. Kollie

This series tackles the delicate subject of the failure of law enforcement and public prosecution in Liberia, which explains why the US government (USgov), lately, seems to prefer targeted sanctions (much to the liking of the public). Whereas, in part one, we focused on law enforcement, in this part two of the series, we focus on the failure of the Ministry of Justice (MOJ) and Liberia Anti-Corruption Commission (LACC) to investigate and prosecute crimes in Liberia, especially corruption. It baffles the mind that we have MOJ, LACC, Financial Intelligence Agency (FIA) and [on paper] Office of Ombudsman, yet corruption and impunity pervade and ruining Liberia. In the series, we continue to critically analyze the laws and institutions that underpin the system and decipher why they just don’t work, and won’t work, as is.

The LACC, Designed by Statute to Fail in Its Core Mandate

In “Syndromes of Corruption: Wealth, Power, and Democracy” Professor M. Johnstone argues that corruption erupts out of the way people pursue, use, and exchange wealth and power that allows oligarchs and clans operating in cartels to use official powers to make state institutions ineffective, unsuccessful, and unpredictable. This is the case of Liberia. When it comes to the investigation and prosecution of corruption in Liberia, a dangerous game is played by the political cartel[1]. This cartel collaborates in favor of perpetuating impunity for their crimes, especially corruption. How do we know a “coalition for impunity” has captured Liberia? Take the case of the revision of the LACC Act of (2008). Liberia’s two dominant political groups (Congress for Democratic Change-CDC & Unity Party-UP) have been at loggerheads for almost 20 years, barely seeing eye-to-eye on anything. But when it came to impunity for corruption, there is weird flicker of “unity”, and they jointly passed the New LACC Act (2022) in record time (probably in 72 hours). And this law, not surprisingly, puts additional hurdles in the way of the LACC’s ability to freeze assets[2]. This law also further politicized the recruitment process[3]of commissioners, stacked the Commission with more “executives”[4], and legislated an assets declaration regime with no provision for sanctions for violators[5], amongst other nefarious downgrades. In essence, the political cartel united to create an LACC that was designed to fail. This state capture by the political cartel in Liberia is best described in the article titled Why Do Anti-Corruption Agencies Fail?^[6] Here, the author analyzes and links the organizational structure of an anti-corruption agency (ACA) to its susceptibility to corruption or being corrupt and interfered with. Centralized anti-corruption agency (like the LACC) – where powers are concentrated in one agency in a country – makes it very easy for corrupt politicians and bureaucrats to capture its organs and prevent it from achieving its goals.

As things stand, any government that works with the current LACC law, as is, has just signed up for failure in the fight against corruption. It’s very clear from the way the law was written, the intent was to create an unworkable Commission. Let’s look at a few ways in which the New LACC Act show a design to fail:

1. The law reduced the LACC to some kind of parliament by going from an already top-heavy five-member Commission to a 7-member body of commissioners – in which prosecutorial decisions are subject to parliamentary-style voting procedure. Additionally, resources that should go for investigations and prosecutions are effectively diverted to ‘catering to a Commission of 7-fulltime executives[7] and their office staffers.
2. The law made it is impossible for LACC to freeze assets and or to recover stolen assets once a bail bond is filed securing the property regardless of the magnitude of the allegations– contrary to spirit and letter of the UN Convention on Corruption (UNCAC). Even if freezing or confiscation is possible, there is no appointed property manager or functional established office that manages frozen or confiscated assets as provided for by the AML/CFT Act 2022; 15.4.8 (1 (a)).  
3. The law required an assets declaration regime for all public officials and employees of government but legislated no punishment for violations. Further mandated the LACC (in the same law) to make “recommendations” to the Legislature for sanctions in cases of breach. What circular logic! You write statute, and you decline to in insert sanctions for violation, but ask for another [new] law and an unspecified future date to be passed to decide sanctions? Seriously?
4. The law mandated a 9-member recruitment panel set up by the President in which the President directly appoints the chair, indirectly appoints another 2, leaving President marginally in control. Note that the whole essence of appointing a panel is to remove political influence. In Liberia, the exact opposite is the case with LACC. With the President active involvement in recruitment committee as enshrined in the Act- there is therefore still no independence.

An MOJ Designed to Shield and Protect Politicians from Accountability

We maintain that a system in which [only] the President and the ruling party get to decide who become prosecutors (nationally and provincially) is a recipe for impunity for corrupt politicians. And that is exactly what we see happening in Liberia notwithstanding regime changes. As it stands, the Liberian president and the ruling party exclusively handpick the Solicitor General, his assistant, and all county attorneys (Liberia’s public prosecutors)[8]. We maintain that given the extent of public interest at stake, and the need for impartiality, legality and professionalism, these laws shackle the public prosecutor and make it nearly impossible to prosecute corrupt politicians (especially ruling party bigshots). If Liberia wants to know the [real] reason why MOJ and LACC do nothing to arrest and prosecute corrupt government officials, that’s essentially the reason. Over Liberia’s 176 years of nationhood, this ostensible legal malfeasance has calcified into a sub-culture of impunity for ruling party bigshots, political hangers-on and other hired guns.

Public prosecution for crimes goes to the heart of civilized society. No one segment of society reserves the right to have a stranglehold on the office of public prosecutor – not even the President and the ruling party. This is why regime change in Liberia has proved meaningless, as the behavior of the average Liberian prosecutor never changes. The office continues to be subject to domination by whatever political party in charge. For example, under the UP Government (UP 2.0) then President Ellen Johnson-Sirleaf’s son, Robert Sirleaf, led the National Oil Company (NOCAL) to bankruptcy by depleting millions from its covers[9]. But the MOJ/LACC dared not act against a standing member of the ruling Sirleaf’s oligarch and clan. When CDC took power, Nathaniel McGill became the new “Robert Sirleaf”, and just like the old “Rob”, he too was “credibly accused” to have accumulated suspicious public funds and acquired questionable wealth[10]. And, as expected, the MOJ did nothing, since it gets their marching orders from the political cartel. Today both Rob and McGill are rich men, thanks to this institutionalized system of impunity. We maintain with certainty that UP 3.0 will be no different from UP (1.0 & 2.0) given the current wave of nominees with questionable credentials and characters. If we want a different country, a law-abiding country, then we must do things differently. We must legislate the structure that will enable and embolden our public prosecutors to enforce the law without fear or favor; thereby, discouraging a “quid pro quo” relationship with “suspects of criminal investigations” similar to what is described of former Solicitor General (SG) Cllr. Sayma Syrenius Cephus[11].  

We must employ a multi-stakeholder approach in recruiting our SG and his team of [prosecuting] attorneys. Additionally, we must give them tenure, so as to remove the scepter of job loss, for defying political directives that interfere with public prosecution. The law that gives the President and the ruling party exclusive prerogative over who becomes a prosecutor is a bad law and must be repealed if Libera is to make any significant progress toward an unbiased, and even-handed enforcement of its laws. This global standard is to ensure that the public prosecutor’s office is independent, well-funded and utterly apolitical. If we don’t elevate the office of the public prosecutor to this level of independence, the Liberian prosecutor will forever be beholden to the political cartel.

We find it just shocking that Liberia, as a sovereign nation, is taking forever to ensure that its prosecutors are independent and apolitical. Our failure to elevate our office of public prosecution to a level of independence and professionalism, and their attending inaction in high-ranking grand corruption cases, is essentially why USgov continue to sanction top government officials – thereby showing our MOJ/LACC utter disdain. Given the way our system works, the Americans just can’t see how top politicians (like “Nathaniel McGill”, a “Prince Y. Johnson” or a “Jefferson Koijee”) will ever be brought before a court of law to answer for their crimes. And this unfortunate situation is mostly down to political control of the prosecutorial system. In the few instances where top government officials were eventually brought to court, there have been some notable convictions (including the cases of Brownie Samukai, Milton Teahjay, Albert Bropleh, & Muna Sieh) but none was ever significantly punished either due to being granted executive clemency or being accorded [only] restitution order, with no effect of deterrence.  This is not to say the courts are free of corruption, but clearly the real story is that public prosecutors in Liberia find it increasing difficult to pursue cases against top government officials. How long can we run a country in which only the average “Joe Blow” gets punished, but “Big Boy 1” and “Big Boy 2” continue to enjoy impunity for their many crimes? When will this lopsided justice system in Liberia end? When?

Other Strategic Ways the Political Cartel Undercuts Public Prosecution

In the first UP government, the preferred method to neutralize the MOJ and LACC was to appoint people in their 70’s or loyal to the corrupt leadership, to under-fund the LACC/MOJ, or to water down the statutes and regulations (e.g., assets declaration). When most commissioners are aged 70s, there is no need for the ruling party to worry about any aggressive anti-graft swoop. People in that age range generally move much slower and suffer from an “abundance of caution”. The CDC government took the undercutting of the LACC/MOJ much further. They went for straight-up party loyalists or for persons with no moral compass. In other instances, the CDC appointed people who have no known history of anti-graft advocacy, investigation, or prosecution. The appointed LACC Commissioners either do not know how to investigate/prosecute corruption, or they have no desire to, and that leads to the same results as under the UP’s approach – impunity for the corrupt politicians. Thus, we see glaring instances of corruption at the highest levels of government, while both the LACC and the MOJ show no interest or no capacity to investigate and/or prosecute. Of course, in any society, if it is the established culture never to investigate and/or prosecute [corruption], then what is there to stop people from stealing public funds or taking bribes? If Liberia wants a society based on the rule of law, then it must delink politics from public prosecution. There is no alternative! Liberia must recruit the SG and his team of county attorneys based on a competitive merit-based system and must accord them tenured period. Moreover, Liberia must ensure financial and operational independence of the office of public prosecution. It’s either we do these things, or we continue with business-as-usual. With business as usual, of course, we will surely get the same poverty, joblessness, overall lack of economic development.

Liberia’s Long and Sordid History Political Interference & Lack of Political Will

The failure of our political leaders to fight graft and abuse of public office is not just a contemporary phenomenon. Just a peep into Liberia history will reveal a lot of tough talking but little or no results. For example, in 1975, former President William R. Tolbert established, by Executive Order, the National Force for the Eradication of Corruption (NFEC), within the Office of President. What was the impact of the NFEC? Nothing. That was just another political posturing, even as the Tolberts, the then ruling clan, maintained their chokehold of the Liberian economy.  Thirty years later, C. Gyude Bryant, former Chairman of the National Transitional Government of Liberia (NTGL), continued the charade by establishing the Executive Task Force on Corruption. And what was the result of this latest “Executive Task Force on Corruption”? Nothing! No report, no arrest, no prosecution, nothing! In fact, the Gyude Bryant’s government was one of the most corrupt governments in the history of Liberia.

Successive Liberian governments have done nothing but signed “beautiful” papers – reiterating the evils of corruption and their sincere commitment to fighting the menace. Our government, as usual, signed up to the United Nations Convention Against Corruption (UNCAC) in 2003, and have gone on to establish a long list of anti-graft agencies, including the Liberia Anti-Corruption Commission (LACC, 2008), the Financial Intelligence Agency (FIA, 2013; amended 2022), the Internal audit secretariat (IAA, 2009), the Public Procurement and Concession Committee (PPCC, 2010), among others. And, all these agencies were present and functional, when the LEITI commissioned audit (done by Moore Stephens) found that upwards of 95% of concessions deals done under the UP regime were in violation of Liberia laws. One would think that with such bad news “heads” would roll, and some people would be held accountable. Sadly, despite the blinking violations, no one was ever held accountable for this economic carnage.

In 2014, for example, our Minister of Justice, Cllr. Christiana Tarr was forced to resign, not long after she attempted to investigate allegations of fraud against the Director of our National Security Agency (NSA), headed by ex-President Johnson-Sirleaf’s son, Fumbah Sirleaf. At the time, Fumbah was suspected of illegally seizing of money belonging to some Korean investors^[12]. Apparently, our laws are only for “lesser Liberians” – not for the President, the “ruling clan” and/or the ruling party. In the end, President Johnson-Sirleaf continued her utter lack of political will, even up to her final days (i.e., State of the Nation address), when she acknowledged, rather flatly, that she failed to control corruption^[13]. Not to be outdone on the issue of lack of political will and the condoning of corruption, as one of his last official acts, ex-President George Weah, did similarly when he granted executive clemency to convicted fraudster and former defence minister, Mr. BJ Samukai and two deputies. The ruling political cartel has an unceasing penchant for perpetuating the culture of impunity. While this decadent culture persists, at least five million Liberians must bear the cross of unemployment, poverty, and destitution. 

LACC – Too Many Bosses and not Enough Investigators and Prosecutors

To better understand how bad the failure of LACC is, let’s do a comparison with one of the world’s oldest and possibly best performing anti-graft agency: Singapore’s Corrupt Practices Investigation Bureau (CPIB). The table below shows that for an anti-corruption agency, where is matters most (investigation and prosecution), the LACC’s results on investigations and prosecution show glaring failure.  

	Singapore	Liberia	Comparative Analysis: Singapore CPIB vs Liberia LACC
Pop. in millions World Bank[14]	5.6	5.3	Source:  CPIB 2021 Annual Report & Official Website
Number of Executive Officials	1 Director	7 Comms	Source:  LACC 2021 Annual Report & Official Website
No of Staffs	234	69	LACC staffing (more executives); CPIB (more investigators)
Registered Investigations	470	38	Reg cases: Singapore (2018-2022); LACC (2018 & 2021)
Cases Prosecuted (2021)	152	1	LACC: Website has only 2018 & 2021 Annual Reports (fig.)
Conviction Rate	98%	0%	LACC in 2021 , 7 indictments, 1 Prosecution, 0 Conviction

In just one table, we show why the CPIB succeeds and the LACC flounders. Liberian leaders prefer more “executives” and fewer investigators/prosecutors, while Singapore do the direct opposite. Thus, in the same year (2021), Singapore (CPIB) tops 152 prosecutions with 98% conviction rate[15]; while Liberia (LACC), did just one (1) prosecution with zero (0) convictions[16]. Of course, this failure is intentional. This is exactly what the political cartel wants. They want to everlasting impunity for their corruption and law-breaking. It must be said that a government’s attitude to graft and impunity has far-reaching implications for the standard of living its citizens enjoy. Today, Singaporeans enjoy a GDP|PPP/capita of US$119,000; while Liberians wallow in poverty, with a GDP|PPP/capita that is on only 1.3% (US$1,570) of Singapore’s[17]. If you don’t believe in World Bank statistics, that’s fine. Just google Singapore City – side by side with Monrovia – and believe whatever you see with your two eyeballs!  

Conclusion

We have established that our prosecution system is designed to fail. It is exceedingly pliable to malignant political influence and control. Moreover, the political cartel designed and implemented varying strategies to make sure that public prosecution does not work and that impunity for corrupt officials continues unabated. We posit that this is the ostensible reason why the USgov., in dealing with Liberia, has given up on the political class and has resorted to targeted sanctions. However, the Liberian people must demand that their government (i.e., GOL) ends corruption and impunity. They must demand that the GOL re-design its public prosecution system – making it apolitical, meritocratic, and professional. They must demand that the GOL redirect resources from wasteful public programs and institutions and direct same to prosecution, to crafting better anti-graft criminal statues and even stiffer punishment.  

Authors

• Wonderr K. Freeman, Liberian Investment Attorney, Political Economist, Accountant, and Certified Financial Crimes Specialist (CFCS), currently based in Minneapolis, USA. Mr. Freeman professional interests spans the intersection of law and economics – including political economy of development, economic justice, international trade/investment law and financial crimes law. He can be reached at [email protected].

• Marc N. Kollie, is a Liberian attorney, anti-corruption activist, and financial crimes investigator with 12 years of progressive experience. US Department of State’s 2023 Anti-Corruption Champion Awardee. Mr. Kollie researches questions on criminology, criminal justice, anti-money laundering & new technologies as enablers, ethics, impunity, and human rights.  He can be reached at [email protected]

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[1] The political cartel here includes the Unity Party, the CDC and other politicians using politics for corrupt ends.

[2] Now LACC can only freeze assets in the absence of a bond (LACC Act 2022, Part IV, 4.1[e]), contravening Liberia’s commitment under the UN Convention on Corruption (UNCAC, Chapter III, art. 31)

[3] See Part VI, §6.10 of LACC Act of 2022

[4]  See Part VI, 6.1 of LACC Act 2022

[5] The law mandates an assets declaration regime with no sanction; see Part V, Section 5.2 (p)(vi) of LACC Act 2022

[6]Michael N. Kuria, “Why Do Anti-Corruption Agencies Fail?”, (FCPA Blog: 2012). See www.fcpablog.com

[7] For reference, the GOL fiscal budget of 2023 (pg. 131 – 134) shows some US$1.2m for total personnel expenses. In reality, nothing less than $750k or (62%) is spent on just 7 commissioners. who don’t even conduct investigation nor prosecution.

[8] See Liberian constitution (1986) art 54(d); Also, Exec. Law (1972), Title, 12, Chp. 22, §22.4-22.5 & §22.12-22.13

[9] https://newspublictrust.com/robert-sirleaf-defends-nocal-us500000-bonuses-in-block-13-oil-deal.  

[10] https://home.treasury.gov/news/press-releases  

[11] https://home.treasury.gov/news/press-releases/jy0921

[12]James Butty, “Liberia’s Justice Minister Resigns” (Voice of Africa: October 07, 2014). See www.liberianobserver.com/news/politics/justice-minister-quits/amp/ 

[13] See www.emansion.gov.lr/annual-2017/pdf 

[14] www.data,worldbank.org

[15] CPIB, Annual Report, 2021, pg. 5

[16] LACC Annual Report, 2021, pg. 24

[17] www.data,worldbank.org (2021)