Is The Sanctioning of Nathaniel McGill a Consequence of Law or Political Retribution? (Part-1 of 3 Parts)

By: Salomon P. Harris

Burlington, N.J, USA

On 15 August 2022, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) stunningly announced that it has decisively designated three high-ranking officials of the Liberian government for “their involvement in ongoing public corruption in Liberia”. The three officials include Nathaniel McGill, former Minister of State for Presidential Affairs, Cllr. Sayma Syrenius Cephus, former Solicitor General of Liberia, and Bill Twehway, former Managing Director of Liberia National Port Authority. Only God knows the psychological and emotional pains as well as reputational damage these three men have suffered since that day. A colleague with whom I practice law and share Liberian heritage stated to me on the fateful day the sanctions were announced, “Doom is your fate when the mighty United States of America stand against you, whether their action is right or wrong, and just or unjust”.

The three officials were designated pursuant to Executive Order (E.O.) 13818 which seeks to enforce the Global Magnitsky Human Rights Accountability Act that essentially targets perpetrators of severe human rights violations and extreme corruption—anywhere around the world.

Under Secretary of the Treasury for Terrorism and Financial Intelligence Brian E. Nelson is quoted as conclusively stating, “Through their corruption, these officials have undermined democracy in Liberia for their own personal benefit. Treasury’s designations today demonstrate that the United States remains committed to holding corrupt actors accountable and to the continued support of the Liberian people. Corruption has long undermined Liberia’s democracy and its economy, robbing the Liberian people of funds for public services, empowering illicit actors, degrading the business environment, and damaging the rule of law and effective governance in the country. Corruption also contributes to diminished confidence in government and public perception of impunity for those with power. These designations reaffirm the commitment of the United States to hold corrupt actors accountable”.

There is absolutely no gainsaying that rampant corruption has been a monstrous menace in Liberia since the founding of the country. The egregious act of corruption by epicure and grotesque government officials both in past and the current government has severely undermined the socio-economic transformation of the oldest sub-Saharan nation and plunged its people into the dark pit of poverty for decades now. Consequently, as a native Liberian and legal practitioner, I support any legal action against all forms of corruption in Liberia—from the abuse of power and peddling of influence to the abrasive pillaging of public fund by miscreant public officials and their underlings.

It can be recalled, however, that during the previous government of Ellen Johnson Sirleaf, a substantial scale of corruption was documented by the General Auditing Commission (GAC) and Transparency International to the full knowledge of the Americans and other international partners. Interestingly, the Americans were tightlipped and nothing was heard of the Global Magnitsky Human Rights Act being ever invoked to impose fierce sanctions against roguish and disreputable officials of the Ellen government. According to Liberia’s GAC, the son of former President Sirleaf, Robert Sirleaf pillaged the coffers of the National Oil Company of Liberia which he presided over as Board Chairman, but we did not hear the American say a word or invoked the Magnitsky Act.  Does it then linger the question as to whether America’s fight against corruption in Liberia is selective or biased? Wherein some criminals are coveted as sacred cows while others are taken to the gallows and slaughtered on the rusty blade of political retribution?

As an aficionado of good governance, social justice, equality, fundamental human rights, accountability of the public treasury, and the socioeconomic accentuation of the citizenry, I support the Magnitsky Act with the greatest emphasis at my command primarily because it seeks and engenders good governance and the protection of human rights and values. However, notwithstanding, the Magnitsky Act is an instrument of law, not a political tool, therefore, it must be enforced clearly on account of the law and facts, not on prejudices, sentiments, and political machination. The Magnitsky Act cannot and must not be used to politically eliminate an individual or any group of individuals.  It should not be used to tip the scale in favor of the other side of the political divide in Liberia. No, no, the Magnitsky Act cannot and must not be used to fulfill the embedded political motives of Liberians who oppose the current political establishment and would dare go at all lengths to politically exterminate top brass of the regime in a bid to rattle the government. The United States should not allow itself to be cajoled into being an accomplice to any form of vicious manipulation by any group of Liberians no matter which side they belong.

So, in this piece, I structure my argument on account of the law and facts with emphasis on former Minister Nathaniel McGill who I do not personally know and with whom I have never interacted nor seen physically. However, as a defender of rights and a practicing jurist, I feel fundamentally obliged to defend the rights of all human beings irrespective of their political alignment and social status. I take Particular interest in the sanctioning of McGill because he has mustered the courage to publicly challenge the damaging allegations made against him by the U.S. Treasury Department as erroneous and factual misrepresentation of the fact. That all the incriminating attributions made to his character are fallacious and not grounded in truth thereby seeking his day in court to challenge his accusers. I find McGill’s temerity to challenge his accusers before a court of competent jurisdiction, if given a chance as it ought to be, as not only bold and courageous but also honorable.

Now, whether McGill is given his day in court or whether challenging the Treasury decision to sanction him merely on account of unproven allegations would change anything only with the fate of time we shall all know. Nonetheless, what is essentially important is the integrity and morality of the decision taken against him in the context of Law and facts. In light of this, I would like to emphasize that the Americans and the decisions they made are not beyond reproach nor are the Americans infallible. History is replete with numerous accounts where the Americans have made wrong and fatal decisions in other countries and these countries are currently suffering the consequences of those wrong foreign policy decisions, i.e. Iraq, Libya, Syria, and Afghanistan et al. To fully grasp my argument one has to divest him or herself from the fanciful thoughts of politics and wear the lenses of law and evidence.

Here is exactly what the U.S. Treasury stated about McGill, “Nathaniel McGill (McGill) is Minister of State for Presidential Affairs and Chief of Staff to President George Weah. During his tenure in government, McGill has bribed business owners, received bribes from potential investors, and accepted kickbacks for steering contracts to companies in which he has an interest. McGill has manipulated public procurement processes in order to award multi-million dollar contracts to companies in which he has ownership, including by abusing emergency procurement processes to rig contract bids. McGill is credibly accused of involvement in a wide range of other corrupt schemes including soliciting bribes from government office seekers and misappropriating government assets for his personal gain. He has used government funds allocated to other Liberian government institutions to run his own projects, made off-the-books payments in cash to senior government leaders, and organized warlords to threaten political rivals. McGill has received an unjustified stipend from various Liberian government institutions and used his position to prevent his misappropriation from being discovered. McGill regularly distributes thousands of dollars in undocumented cash to other government officials for government and non-government activities.

McGill is being designated for being a foreign person who is a current government official who is responsible for or complicit in, or who has directly or indirectly engaged in, corruption, including the misappropriation of state assets, the expropriation of private assets for personal gain, corruption related to government contracts or the extraction of natural resources, or bribery”.

For the record, these are all allegations until proven with tangible evidence. At the same time, McGill has categorically denied these allegations and characterized them as devilish maneuverings by his political nemeses. He has said to Aljazeera and other foreign news outlets that he has never committed these crimes for which he is being harshly penalized. He also stated that he has notified State Security Authorities of criminal attempts by roguish individuals imposing in his name to solicit money from businesses. He has demonstrated the willingness to clear his name in court but sadly no one is listening to him, only because politics has blinded the eyes of many in a country where political differences amount to vicious enmity, a grim and obnoxious mentality all sides of the political divides in Liberia are guilty of.  So, with this ridiculous mindset, no one cares about McGill’s right to due process, including some powerful people with whom he shares political alignment. America is the accuser and judge, the lord and the gospel, what it says and does is final and unchallenged —even if its decisions questionably fall short of the law.

All I see sketched in the above-mentioned U.S. Treasury Department statement are strong-worded allegations with no particular mention of the convincing evidence. I must say these are the gravest toll of allegations that have ever been leveled against a Liberian official apart from former President Charles Taylor now imprisoned for war crimes and crimes against humanity in a maximum British jail. And of course, Taylor had his day in court and was adequately represented by a team of erudite international lawyers. And no doubt, these allegations brought against the former Minister of the state are no less than a decimation of a person.

Yet, the question fundamentally remains, where are the evidence to the plethora of blistering allegations brought against this man? Did the Americans give McGill his day in court or even the benefit of holding a conference with him before smashing him with such a massive sanction which certainly has multiple implications on his reputation as well his psychological and mental health?

To accuse and sanction somebody of misappropriation of state assets, the expropriation of private assets for personal gain, corruption related to government contracts or the extraction of natural resources, or bribery amongst others, certainly comes with a corresponding responsibility of proof as the law demands, “the burden of proof lies on the accuser”. I know America is powerful and doesn’t feel obliged to account for its actions and inactions but in the spirit of accountability and morality and keeping with the law, it is only about fair and proper to render such verdict against a person based on the full exercise of the LAW. The accused right to due process must be upheld and accompanied by the necessary procedural safeguards including the right and opportunity to challenge such decision before a court of competent jurisdiction. I am left to wonder why is America deviating from the fundamental principle of Law, ‘Justice and Equity’, which it claims to be a fierce promoter and champion of.

Article 14 (1) of the International Covenant on Civil and Political Rights, states: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public), or national security in a democratic

society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice, but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children”.

Whereas Article#7 of the Universal Declaration of Human Rights (UNDHR) states, “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”.

Article#10  (UNDHR) “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.

These are all international laws that guaranteed the fundamental rights of every human being. No matter what kind of crime is committed by a person, real or perceived, international laws guaranteed due process and the right to competent and adequate legal representation before the court of law. These rights may be derogated only given the circumstance of exigency. While I welcome the Magnitsky sanction as a powerful deterrent against the commission of rampant corruption by nefarious public officials and repressive governments notorious for committing unbridled atrocities against their own people, it must be stated in no uncertain terms that the Magnitsky Act cannot be a blanket power used by America, United Kingdom, and others to enforce a prohibition on individuals through excessive sanctions like the one imposed on Nathaniel McGill only account of mere allegations that are yet to be proven by solid evidence.

McGill has said unequivocally that he has never negotiated a concession agreement nor ever been involved with consummating contracts for and on behalf of the George Weah government. And has never used his position as Minister of State to solicit funding or compel any business or company in Liberia to finance any of his initiatives. It would be fair for the record and in the spirit of law to prove him wrong by presenting some tangible evidence. No one, irrespective of their political and ideological leanings should be maligned, libeled, or slandered in such grievous manner without material evidence to substantiate the claims made against them.

No doubt, the position McGill occupied is a powerful and influential one that comes with trappings and temptations, so it will be disingenuous for me to argue that the former Minister of state did not face the temptation of lofty offers or did not receive unsolicited contributions to his humanitarian initiatives which included helping underprivileged kids get to schools, empowering rural women across the country, giving a zero-interest loan to market women amongst a host of humanitarian projects with which he was engaged as a person with the kind heart to lend to the poorest and the neediest. There is nothing wrong with a business donating LD$10K to McGill’s school project or rural women’s initiative insofar it was not done for a favor in return and was not done out of solicitation. I commend every gracious effort by anyone, no matter his political alignment, to help poor Liberian kids get to school and earn an education to secure a brighter future, help impoverished women get into business to put a meal on the table of their poor families, and put dignity on the lives of rural women who for decades have been let down by previous governments including the government run by a woman President in Ellen Johnson Sirleaf. And such magnanimity must be welcomed and commended by all well-meaning Liberians void of petite politics.

So, to paint McGill as a corrosive criminal as the U.S. Treasury Department has stated thereby slamming him with a sanction even heavier than a sledgehammer, it is only about fair that such decision is truly rooted in the law backed by evidence. If you are standing on the opposing side of the political spectrum in Liberia, it is easy to dismiss these points argued herein despite the fact the find faith in the eyes of law. And it is normal in the context of the African politics that every politician wants to see a powerful opponent fall to the ground and be eliminated from the contest. However, a man’s political alignment or socio-political positionality cannot and should not deprive him of his fundamental right to due process and other procedural safeguards appertaining thereto. Why did America prosecute dreadful drug lord Rafael Caro Quintero of Mexico even though he is a well-known notorious and murderous drug kingpin? They did so because Quintero is entitled to due process under both international law and domestic law. In short, the accused has rights and such rights must be respected as the law necessitates. McGill has the right to be heard before a count of competent jurisdiction.

To be continued…