One of the most stunning and biggest, if not the single biggest, financial scandals that hit the political administration of former President Ellen Johnson Sirleaf was the spontaneous broad day evaporating of tens of millions of United States Dollars at the National Oil Company. Before the sudden financial collapse of NOCAL just before the expiry of the Sirleaf regime, the company was the richest government parastral, having overseen what others called the mortgage of over 20 oil wells for exploration by the world’s biggest oil czars. That millions evaporated from the company is not a fairytale but something empirically probed and documented by the General Auditing Commission (GAC). But as news broke about the financial tragedy at NOCAL, the then President, Madam Sirleaf, took the airwaves, not repudiating veracity of the report but taking full responsibility for the colossal losses. As the former President’s successor makes efforts to investigate the country’s financial past, and to bring kleptocrats to book, there are arguments in some quarters that the former managers of NOCAL under whose watch the country’s then most lucrative agency broke down do enjoy presidential pardon and should not be called into question by the Asset Investigation, Restitution and Recovery Team set up recently by President George M. Weah. But the fiery campaigner for fiscal probity and economic justice, the newly recruited Solicitor General of Liberia, Cllr. Sayma Cyrenius Cephus is saying something diametrically otherwise, as The Analyst reports.
If any official or manager of the immediate past political administration was taking solace and playing safe under any technical legal and constitutional shield, they have to think twice because there appears to be grim determination on the part of the George Weah administration to soften the hard ways and subdue every resistance. This is firmly backed by the pedigree and resolve of the new Solicitor-General of Liberia, Sayma Cyrenius Cephus, who is not taking chances and not allowing culprits gymnastics lying down.
Before his confirmation, the internationally tested Solicitor General has been talking tough, unveiling Government’s plan to not leave any stone unturned towards laying dragnets on public servants who gulped the public coffer like free water served.
He has since been pushing for a robust exercise by the government to investigate and recover stolen wealth of the country pursuant to President Weah’s recent public statement announcing plans to go ten years down the history lane in search of the country’s wealth purloined by past political administrations.
In the wake of that effort, there are legal technicalities being proffered by some pundits in apparent attempts to build shields over potential culprits. One of such attempt is the argument that former administrators of the National Oil Company of Liberia stand exempted from any legal inquest since the President of the era publically announced she was taking responsibility for missing millions of United States dollars at that institution.
Former President Sirleaf, who took over state power with the declaration of war against corruption, said following an damning audit by the General Auditing Commission, that he was taking responsibility for whatever had happened at NOCAL.
There are those who are making the proposition that the former President’s declaration automatically takes off any more iotas of blame and responsibility from the audit-indicted NOCAL former officials and it would therefore be illegal and inappropriate for any investigative team to summon them.
To such opinion, Solicitor General Cephus is taking exception and he has communicated officially his counterviews to the Special Independent Prosecutor of the Asset Investigation, Restitution and Recovery Team (AIRRET).
In a letter date 10 July, 2019, the Liberian Solicitor General wrote: “ I present my profound compliments and wish to provide, as you requested, this opinion for the information and guidance of the Asset Investigation, Restitution and Recovery Team (AIRRET), in respect to recent inquest and debate in the public space, regarding the constitutional power of the President of the Republic of Liberia, pursuant to Article 21(j) of the 1986 constitution to grant executive clemency vis-à-vis the audit report regarding NOCAL in which the former President, Madame Ellen Johnson Sirleaf is said to have taken responsibility for all of the alleged financial malpractices and frauds discovered by the GAC Audit during the last administration.”
In the opinion of Cllr Cephus, the Constitution provision at Aricle 21 (j) does not suffice for the NOCAL scenario, arguing that for any executive pardon or clemency to be granted by the President of Liberia to anyone, there must first and foremost be a conviction which can only be held after a full trial is conducted consistent with due process and a sentence is rendered.
In the case of NOCAL, the SG said, there is no record of any trial; there was no conviction or a sentence imposed, hence, there could be no grant of executive clemency or pardon.
He said the phrase, “Any person who, upon conviction of a criminal offense…” is read together with the phrase: “…shall have the same (rights) automatically restored upon an executive pardon”, it is too clear that an executive pardon or clemency is not a pre-emptive exoneration power available to the President of Liberia to a would-be criminal defendant, instead, it is the contemplation of the framers of the law that it would be an exclusive grant of constitutional amnesty to a defendant who has already been tried consistent with due process under Article 20(a) of the 1986 Constitution, convicted, and sentenced.
The NOCAL case, according to Cllr. Cephus, presents a fundamental constitutional question which must be addressed and that is, whether or not the assumption of responsibility by the President Ellen Johnson Sirleaf for whatever fraudulent financial activities and malpractices discovered by the GAC audit, should be construed and interpreted within the context of an executive clemency or pardon, and therefore, precludes any subsequent criminal investigation of the report as well as those who were audited.
He added: “As a lawyer, and Solicitor-General of the Republic of Liberia, with vast experience in dealing with matters of this nature, I am unable to agree that this was the intent of the framers of Article 21(j) of the 1986 Constitution. I also fail to see any legal justification for your team to ignore the alleged litany of financial malpractices and frauds highlighted in the GAC audit.”
Cllr Cephus said while the grant of executive clemency to a convict serving a sentence, is exclusively the preserve of the President under the 1986 Constitution, and its exercise is constitutionally sacrosanct, owing to the fact that those who worked at NOCAL at the time, were after all, agents of the President within the contemplation of Article 50 of the 1986 Constitution, which makes the President of Liberia, Head of Government and all appointed officials are her agents or subjects; however that delegation of administrative power to the President’s agents or subjects at NOCAL, did not in any way constitute a license to commit financial frauds or malpractices.
“The truth is, the GAC audit was not a trial or a conviction-it was conducted at NOCAL, a public corporation, and not the office of the President and as a result that audit, clearly and distinctly held accountable the officials of NOCAL for alleged waste, abuse, and misuse of financial resources,” he further asserted. “More besides, the GAC Audit is not a criminal investigation and President Sirleaf’s assumption of responsibility is not a general amnesty, and therefore, the discrepancies unearthed by the report do not in any way rob the government of its responsibility to conduct further investigation to establish criminal culpability. As you may be aware, Amnesty is the waiver of criminal responsibility/prosecution by a State against a person or group of persons who has/have been criminally charged for the commission of a crime. Amnesty is not granted in civil actions; the beneficiary of the amnesty must have been charged/indicted for the commission of a crime.”
“Finally,” he continued, “as I quietly withdraw from the spotlight, and await your findings on all audit and investigative reports, it is my fervent hope and prayer that AIRRET will live up to its professional character and the expectation of the Liberian people to fight corruption and recover millions of stolen monies both in and out of Liberia in these trying times.”