Solicitor General’s opinion on NOCAL’s Audit

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10 July 2019

 

Cllr. Arthur T. Johnson

CHAIRMAN & SPECIAL INDEPENDENT PROSECUTOR

Assets Investigation, Restitution & Recovery Team (AIRRET)

Center Street,

Monrovia, Liberia

Dear Cllr. Johnson:

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.

The source of this legal opinion is the 1986 Constitution, specifically Article 21(j) which provides: “Any person who, upon conviction of a criminal offense, was deprived of the enjoyment of his civil rights and liberties, shall have the same automatically restored upon serving the sentence and satisfying any other penalty imposed, or upon an executive pardon.”  My understanding of this constitutional provision, is 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 had after a full trial is conducted consistent with due process and a sentence is rendered. In the case of NOCAL, 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.

Furthermore, when 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, presents a fundamental constitutional question which I believe 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.

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.  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.

Also, a careful review of the phrase: “assumption of responsibility” which is the argument used by former  President  Sirleaf to absolve NOCAL officials of any liability  did not meet the minimum  constitutional requirement of Article 21(j)—it  is not, in any form, manner or shape synonymous to executive clemency or pardon. The main reason is that a crime, no matter its gravity is not transferrable, meaning, the law does not punish a person for the crime of another. Besides, the President lacks the constitutional power to assume criminal liability on behalf of anyone especially where there is no evidence that the crime for prematurely granting such amnesty or for assuming responsibility was committed pursuant to Article 85 of the 1986 Constitution.

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.

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.

In the case at NOCAL, the audit was conducted and report submitted indicating that millions of United States Dollars were unaccounted for. Instead of forwarding the report to the Ministry of Justice to conduct a criminal investigation, former President Sirleaf opted to ledge   the process by assuming responsibility for the mismanagement of our country’s resources. Such premature act, in my solemn opinion does not bar or preclude the State from conducting a criminal investigation.

All scepticisms aside, I am to inform you that under Article 50 of the 1986 Constitution, the President, as Head of Government, appoints public officials to aid him/her as part of his/her administrative authority; and therefore : “In such cases, their acts are his acts…”. “Hence, it is that only when acting as agent of the President in a matter in which discretion is by the Constitution or by the law lodged in the President in him alone is the Secretary of State or other cabinet officers including members of the board of NOCAL not subject to the ordinary process of the court”. See Wiles v. Simpson, 8LLR 365, 370 and 372.

In the instant case, the alleged wanton abuse, waste and mismanagement of the resources of NOCAL by its officials, in my mind, was not part of the delegated power granted them by the President, and therefore their acts were not the acts of the President, for which they must now account or be a subject of a rigorous investigative process by the AIRRET. The exercise of the amnesty power of Article 21(j) of the 1986 Constitution by the President does not extend to, or beyond the discovery of unwholesome financial malpractices, waste, and frauds which were discovered by the GAC audit. It is therefore inconceivable as to how the premature exercise of such power by the President could be construed and treated within the parameters of the constitutional discretionary power  granted a sitting President—the President lacks constitutional authority to  assume responsibility for economic crimes in their primes.

The Holy Bible teaches in the book of Jeremiah chapter 17:11 that: “The person who gets money dishonestly is like a bird that hatches eggs it didn’t lay. In the prime of life he will lose his riches, and in the end he is nothing but a fool”. See the Good News Bible. I am fully in agreement with President George Manneh Weah’s war on corruption that the time to catch and prosecute those who milked the national treasury bare is now.

I have gone at length to throw light on this issue as a way of further reminding you that President Weah  has responded to the chorus in the public space  of “beat it driver  beat it, if we die  it is not your worry”  mainly to  do battle the  disciples and agents of  corruption in every stratum of our society. Truly, whoever is caught pants down is not our worry, and for this reason, I am so glad that AIRRET is our frontline commander to recover stolen funds and restore sanity to our national treasury after years of sustained pillage, plunder and rape.

That said,  and  as always,  it is my considered opinion  that all those who were in authority at NOCAL at the time and who were named in the GAC audit are, or should be “persons of interest”  and  must be cited  and  vigorously confronted with its outcome  in order  to give stewardship, if any,  of their various roles  at material time divers, and  where there is a probable cause, perhaps bordering on criminality or other frauds,  “let chips fall where they  may” and let  the law  take its course without fear or favour.

Also, let me remind you that there are processes in getting a presidential pardon and that include acquiring an application, completing and notarizing it and then submitting it to the office of the President and then awaiting a decision on whether or not same has been granted. There is no evidence that the officials of NOCAL ever filed executive clemency application or whether same was ever granted or denied.

Finally, 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.

Thanks.

Faithfully,

Sayma Cyrenius Cephus

Solicitor-General

CC:  Cllr. Frank Musah Dean, Jr.

Minister of Justice/Attorney-General

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