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against whom a Writ of Summon is entered has ten
working days to appear and to challenge the validity or invalidity of the
civil complaint or suit entered against him.
But unlike a civil complaint or suit, when the
State or the Republic of Liberia complains against a defendant or defendants
and charges them with the alleged commission of a criminal offense, that
defendant or defendants shall be immediately arrested and detained
consistent with the force and effect of the Substantive and Criminal
Procedure law of the Republic of Liberia. Much more, this same Substantive
and Criminal Procedure law of Liberia provides that where the Republic of
Liberia suspects or considers that a certain defendant or defendants have
knowingly, consciously, and recklessly committed a crime or a criminal
offense in the Republic of Liberia, the government of Liberia, using its
police power has every right and authority to immediately arrest and detain
such defendant or defendants in a common police cell for 48 hours prior to
them being formally charged under a Writ of Arrest. In other words, a
defendant or defendants, charged with the commission of a crime is never
summoned or invited as some might speculate, claim, or contemplate. Rather,
where a defendant or defendants are charged with the commission of a crime,
the Substantive and Criminal Procedure law of Liberia demands and directs
that they be immediately arrested and detained. This same Substantive and
Criminal Procedure law of the Republic of Liberia is irrespective of any
citizen or resident of Liberia when it comes to the force and effect of the
law in punishing a criminal defendant for the alleged commission of a
crime.
Where the government of Liberia chooses to
arrest such defendant or defendants under a formal Writ of Arrest, the
defendant or defendants named on the face of the Writ of Arrest must be
immediately taken before a judge that has preliminary or trial jurisdiction
to have the statutory and constitutional rights of those defendants read to
them. After said defendant or defendants have properly and clearly been
advised and informed of their rights, they may choose to file a valid
criminal appearance bond with the arresting court; that is, if a bail bond
is allowed and permitted by law. But where a criminal appearance bond is
not permitted by law or where such defendant or defendants have not the
capacity to post a criminal appearance bond, the arresting court, shall
immediately proceed and detain such defendant or defendants at the Monrovia
Central Prison. This is the law that governs all criminal offenses in
Liberia, and this law, creates no special treatment for any citizen or
resident of Liberia, whether they are members of the Sirleaf-led government
or members of the former transitional government of Mr. Charles G. Bryant,
Taylor, Doe, or any other past governments.
Depending upon the nature and color of the
crime purportedly committed by a defendant or defendants, the sitting judge,
may admit them to a criminal appearance bond to secure or guarantee their
release and day-to-day appearance before that court; or he may immediately
detain them during and for the entire trial period, if no valid criminal
appearance bond is filed and sustained by that court. In some special and
rare cases, the defendant or defendants may be required to post and/or file
with the arresting criminal court a cash bond that is equal to the amount
charged in the Writ of Arrest or the court may detain said defendant so
charged for the entire days, months, or years that such criminal case is
pending and being tried if no cash bond equal to the amount charged is
filed. This is the law of the Republic of Liberia, and therefore, Mr. Kamara,
Doe, and the other defendants arrested in Liberia are entitled to no special
respect or treatment. Left alone, their separate and respective human rights
have not been violated or abused as some in the developed world might want
their reading public and the international community to think, believe, and
perhaps conclude. In the great United States where Liberia is said to have
borrowed its legal systems, when a person is accused, suspected, and charged
with the commission of a crime, he or she is immediately ordered arrested
and detained, pending the filing of a valid criminal appearance bond; under
no circumstances are such defendant or defendants ever summoned or invited
to appear and to answer to the crime charged.
To properly understand and to put into proper
context this concept and aspect of our law, the functions of Civil and
Criminal Justice Systems of Liberia need to be appropriately reviewed and
defined. So, what are the functions of the Civil Justice System of Liberia?
What are
functions of the Civil Justice System of
Liberia?
Since becoming a State, the Republic of Liberia
has always had and maintained Civil and Criminal Justice Systems in Liberia.
This provides that under the Civil Procedure Law and the Civil Justice
System of Liberia, a private party has every right to enter a civil
complaint or suit against another private party before a civil law court of
the Republic of Liberia and entreat the assigned or sitting judge to proceed
and issue a Writ
of Summons to bring that defendant before or
under the jurisdiction of that civil law court to answer to a civil
complaint filed against that defendant or defendants. In such a case, the
private defendant or defendants may choose to appear physically consistent
with the notice given in the Writ of Summons or they may choose to appear by
filing a written and formal Answer with that civil law court within ten
working days from the day that they were summoned by that civil law court to
appear and answer to the plaintiff’s complaint.
Moreover, under the Civil Justice System of
Liberia, the plaintiffs and defendants are for all intents and purposes
considered always as civil parties and as such the sitting civil law court
before which they are supposed to appear, must have such defendant or
defendants summoned by the issuance of a Writ of Summons, instead of
ordering them arrested; except for where the defendant or defendants were
charged with contempt of court.
Additionally, under the Civil Justice System of
the Liberia, all civil suits or cases must be commenced and heard by the
issuance of a Writ of Summons. All defendants in all civil cases must always
be summoned by the issuance of a Writ of Summons and not by the issuance of
a Writ of Arrest. Except for and under special civil cases or suits in which
the defendant or defendants might be ordered arrested and detained for
contempt of court. In short, under the Civil Justice System of Liberia, a
defendant or defendants may elect to appear or not to appear at all; and
even in that case, they cannot be ordered arrested unless and if they were
charged with contempt of court. Much more, under the Civil Justice System of
Liberia, the failure of a defendant or defendants to appear when summoned
may result in or only be considered as grounds for judgment by default;
nothing more and nothing less.
What are the
functions of the Criminal Justice System of
Liberia?
Since becoming a State, the Republic of Liberia,
has always had and employed the services of its Criminal Justice System to
immediately arrest, indict, and detain any person or persons suspected or
presumed to have committed a criminal offense or crime. This is indicative
of the fact that under the Substantive and Criminal Procedure law of
Liberia, all criminal offenses when committed by a private or public
citizen, or a resident or residents of Liberia, the government of the
Republic of Liberia has the sole right and authority to arrest and
immediately detain such defendant or defendants. Such arrest and detention
could await the issuance of a formal Writ of Arrest or the filing of a valid
criminal appearance bond that is sustained and upheld by the arresting
court.
Moreover under a mere suspicion, the government
of Liberia may immediately arrest and detain a defendant or defendants for
48 hours without bringing any formal charge or charges. But after 48 hours,
the government of Liberia may bring formal charge or charges against the
detained defendants or the defendants may demand that that they be
immediately released. A defendant or defendants arrested and detained under
a formal Writ of Arrest must be afforded the opportunity and right to file
before the arresting court a criminal appearance bond; except in the case of
murder or under any other criminal offenses where the defendant or
defendants are not permitted to be admitted to a criminal appearance bond.
Even in such cases, the proof must be evident, and the presumption must be
great, that that defendant or defendants so charged did commit murder or any
other felonious offense that might not sanction the right to bail.
Whatever the case may be, in all criminal cases,
any and all defendants so charged, have to and must be immediately arrested
and detained under a formal Writ of Arrest if no criminal appearance bond is
filed and sustained. In short, all criminal cases must be commenced and
heard by the issuance of a Writ of Arrest and not by the force and effect of
a Writ of Summons. Only a witness or would-be witness to a crime may be
summoned or invited and not a criminal defendant or defendants.
There is a great and substantial difference
between how a suit is commenced under the Civil Justice and the Criminal
Justice Systems of Liberia. Under the Civil Justice System of Liberia, all
civil cases must be commenced and heard only by the issuance of a Writ of
Summons. Whereas under the Criminal Justice System of Liberia, a criminal
case must be commenced and heard only by the issuance of an order of arrest
or by a formal Writ of Arrest. In a civil case, a defendant may elect to
appear in court or choose not to appear at all. But in all criminal cases, a
defendant or defendants cannot refuse to appear. In fact, in all criminal
cases, a defendant or defendants must be and are always immediately arrested
and detained absent the filing of a valid criminal appearance bond to secure
their release; that is, if a criminal appearance bond is allowed or
permitted by laws of Liberia.
The fact that the government of Liberia elects
to arrest and detain a defendant or defendants for the alleged commission of
a crime, does not constitute the violation of the human rights of that
defendant or defendants, unless by the use of torture or by the use of any
other illegal means to obtain a confession or needed evidence. The procedure
to arrest and detain a defendant or defendants in a criminal case is
certainly normal and should never be equated to the abuse or the violation
of any defendant’s human rights.
It must be clearly remembered that Mr. Kamara
and the others were never complained against civilly or as provided for
under the Civil Procedure Law of Liberia; rather, they were and are charged
with the crime of Theft of Property. A charge that demands and directs that
they must be immediately arrested and detained, pending the filing of a
valid criminal appearance bond that is sustained by the Monrovia City Court.
This matter is clear both as to the issue of fact and the issue of law.
Therefore, anyone who might be thinking otherwise may need to disabuse
himself or herself of such thoughts and beliefs because Mr. Kamara and the
other defendants were arrested, charged, and detained consistent with the
Criminal Justice of the Republic of Liberia, and not according to the force
and effect of Civil Justice System of Liberia.
How could Mr.
Kamara and the others be charged?
Acting on the strength of the declaration and
substance of the audit report found by the Economic Community of West
African States, (ECOWAS) the government of the Republic of Liberia could
have charged Mr. Lusinee Kamara, Tapple Doe, Albert Quaye, Roberta Frances,
Pyne Wolo, and others with any offense ranging from: a) Theft of Property,
b) Misuse of Public Money, Property or Record, c) Theft and/or Illegal
Disbursement and Expenditure of Public Money, or better still, they could
have been charged with the crime of Economic Sabotage.
The offenses numerated above represent grave and
serious offenses under the Substantive and Criminal Procedure law of
Liberia. But, if the government of the Republic of Liberia had wanted to
mount strong and sufficient legal pressure against Mr. Doe, Kamara, and the
others already charged with the commission of Theft of Property, it could
have charged each defendant individually with Economic Sabotage, and
required each of them so charged to post only a cash bond equal to the
amount charged in order to guarantee and secure their release and day-to-day
appearance. But, the government of Liberia in its wisdom did not choose to
do so. What difference could it have made to have charged Mr. Kamara and the
other defendants with the crime of Economic Sabotage, instead of Theft of
Property?
Why Settle for
Economic Sabotage and Not Theft of Property?
Under the Penal Law of the Republic of Liberia,
the crime of Economic Sabotage, unlike Theft of Property, carries with
itself a greater force and effect of the law when it comes to
the filing of the necessary bail bond and the
effective recovery of the amount charged by the government of Liberia. That
is where the government of Liberia charges a defendant or defendants with
the crime of Economic Sabotage and complains that the amount allegedly
stolen by the defendants is US$9,000, 000 the defendants so charged, must
and are required to file only a cash bond that is equal to US$9,000,000 in
order to guarantee and secure their release. This is the spirit and letter
of the law that controls the crime of Economic Sabotage. But, this is not
the case when the crime of Theft of Property is charged. What then is Theft
of Property and which bail bond may a defendant file when charged with Theft
of Property?
a)
Section 15.51: Theft of Property: A person is guilty of theft
if he:
1. Knowingly takes, misappropriates, converts,
or exercises unauthorized control over, or makes an unauthorized transfer of
an interest in the property of another with the purpose of depriving the
owner thereof;
2) Knowingly obtains the property of another by
deception or by threat with the purpose of depriving the owner thereof or
purposely deprives another of his property by deception or threat; or
3) Knowingly receives, retains, or disposes of
the property of another which has been stolen, with the purpose of depriving
the owner thereof. Please See the Liberian Code of Law Revised, vol. vi,
titles 17-26, section 15.51, P 818.
b)
Section 18.81: Misuse of Public Money, Property or Record:
A person is guilty of a first degree of felony, if he:
1. Knowingly seals, takes, purloins, or
concerts to his own use and benefit or the use of another; without
authority, sells, conveys or disposes of any record, voucher, money, or
thing of value of the government of Liberia or any Ministry, or Agency
thereof, or public corporation, or any property made or being made under
contract for the government of Liberia, or any Ministry, or Agency thereof
or public corporation;
2) Knowingly receives, conceals, or retains the
same with the intent to convert it to his use or gain, knowing it to have
been stolen, purloined or converted;
3) Knowingly disposes of, uses or transfers
any interest in property which has been entrusted to him as a fiduciary, and
in his capacity as a public servant or any officer of an institution, in any
manner he knows is not authorized and that he knows to involve risk of loss
or detriment to the owner of the property or to the government of Liberia or
other person for whose benefit the property was entrusted. Please see the
Liberian Code of Law Revised, vol. iv, titles 17-26, Section 18.81, P 832.
c)
Section 15.82: Theft and/or Illegal Disbursement and Expenditure of Public
Money:
A person is guilty of a first
degree felony, if he:
1) Knowingly fails to render his account or
accounts for public money or property as provided by law, said person being
an officer, employee or agent of the government of Liberia or any Ministry
or Agency thereof or public corporation, having received public money which
he is not authorized to retain as salary, pay, or emolument;
2) Knowingly takes, misappropriates, converts,
or exercises unauthorized control over, makes unauthorized transfer of an
interest in the property of another or the government of Liberia, with the
purpose of depriving the owner thereof or purposely deprives another of his
property by deception or by threat; or
3) Knowingly receives, retains, or disposes of
property of another or the government of Liberia which has been stolen, with
the purpose of depriving the owner thereof or the government of Liberia of
such property. Please see the Liberian Code of Law Revised, vol. iv ,
titles 17-26, section 15.82, PP831-833
d)
Section 15.80: Economic Sabotage or Fraud on the Internal Revenue of
Liberia:
A person is guilty of a first degree
felony if he:
1) Knowingly conspires or colludes to defraud
the government of Liberia;
2) Knowingly makes an opportunity for another
person to defraud the government of Liberia or another;
3) Knowingly does or omits to act to enable
another to defraud the government of Liberia;
4) Knowingly makes or signs any fraudulent
entry in any book or record of any Ministry or Agency of government or signs
any fraudulent certificate, return or statement; or
5) Knowingly demands greater sums than
authorized by law or receives any fees, compensation or reward for the
performance of any duty except compensation from the government of
Liberia. Please
see the Liberian Code of Law Reversed, vol. iv, titles17-26, Section, 15.80,
Subchapter “F” Economic Sabotage, a-h, PP 831-832.
Since 1989 up to today’s date, anyone who has
lived in Liberia, especially so anyone who has had the occasion and
opportunity to effectively practice law under the Criminal Justice System of
the Republic of Liberia, will certainly know and immediately concede that
where a defendant or a group of defendants purportedly takes, seals, and
converts to their personal use or gain money entrusted to them that belongs
to the Republic of Liberia, such defendant or defendants need to be charged
by the government of Liberia with the crime of Economic Sabotage,
immediately arrested, and detained under this charge, instead of them being
held and charged with committing Theft of Property. In fact, definitively
and outrightly, the crime of Economic Sabotage, is a first degree felony;
while the crime of Theft of Property, could be or could not be a first
degree felony.
This is simply so and most appropriately the
case because, a defendant or defendants charged with the commission of
Economic Sabotage shall be required and must only post and file a cash bond
equal to the amount charged in order to secure and guarantee their release.
Should such defendants jump bail and flee the Republic of the Liberia and
the authority of the courts of Liberia, the government could use the cash
bond posted to recover the actual amount stolen. But, a defendant or
defendants charged with the crime of Theft of Property, and where the
government alleges that said defendants did steal and convert money
belonging to the Republic of Liberia to their personal use or gain, the
defendants so charged, have no duty or obligation under the laws of Liberia
to file only a cash bond equal to the amount complained of and charged in
the indictment. Therefore, such defendant or defendants may secure and file
a property valuation bond and they thereafter could abscond the jurisdiction
of the Republic of Liberia and the courts of Liberia. If said defendant or
defendants should flee from the face of the Republic of Liberia, then the
people of Liberia, and the government could be left with no other
appropriate and proper legal redress to recover the amount of money stolen.
Absolutely in this case, Theft of Property is a weak and an inappropriate
charge.
A major loophole to consistently apply justice
in these kinds of cases may continue to exist because, Liberia lacks the
effective record keeping method and mechanism to determine whether a piece
of real property posted by a surety to secure the release of a defendant or
defendants still exists and is still owned by such bail bond posting surety.
In real life and for tax purposes, the office of the deputy commissioner for
revenue at the Ministry of Finance is responsible to ensure that all
property valuation certificates issued by that office are representative of
what they say and represent. But experience and real life has most of the
time represented that this is not always the case. So, a defendant or
defendants charged with the commission of Theft of Property instead of
Economic Sabotage, under this type of inadequate policy could flee the face
of the Republic of Liberia and the authority of courts of Liberia, having
posted a bail bond that has no real property to foreclose and sell at the
end of day. So, in order to avoid this defect created by the substantive
enforcement of a charge of Theft of Property, Economic Sabotage would be the
appropriate and necessary charge to bring against Mr. Kamara and any other
defendants associated with purportedly and deliberately defrauding and
cheating the government and people of Liberia out of their property or
revenue.
According to the substance of the audit report
of the Economic Community of West African States, (ECOWAS), Mr. Charles G.
Bryant, Wesley Momo Johnson, Lusinee Kamara, Tapple Doe, Albert Quaye,
Roberta Frances, Pyne Wolo, Samuel Wulu, and the others purportedly and
allegedly committed a criminal offense by taking and converting a large sum
of money owned and belonging to the Republic of Liberia and entrusted to
them to their personal use and benefit. Therefore and in my professional
judgment, it is most appropriate and legally expedient to have rather
charged Mr. Kamara and the others for committing the crime of Economic
Sabotage instead of Theft of Property. If charged with Economic Sabotage and
not Theft of Property, what bail bond must Mr. Kamara and the others post in
order to secure and guarantee their release and day-to-day appearance?
e)
Section 15.86: Bail Bond: A person charged with Economic
Sabotage shall be required to post a cash bond in the amount equivalent to
the amount charged in the indictment or on the face of the Writ of Arrest.
Please see the Liberian Code of Law Revised, vol. iv, titles 17-26,
section 15.86, P 835.
If Mr. Kamara and the other defendants were
charged with Economic Sabotage and they were alleged to have received,
stolen, and converted to their personal use and benefit US$ 9,000,000 while
they were employees or agents of the government of Liberia, they shall and
must only post a cash bond of US$9,000,000 to ensure and ably effect their
release; nothing more and nothing less. Theft of Property instead of
Economic Sabotage represents a poor and an imprudent professional judgment.
For all intents and purposes, the defendants and
all those named in the audit report of the Economic Community of West
African States are legally and purely high risk persons who could easily
escape the face of the Republic of Liberia; therefore, they should have been
charged with the crime of Economic Sabotage instead of Theft of Property so
that they shall be required to file only a cash bond
equal to the amount allegedly stolen by them to ensure and secure
their release and day-to-day appearance. This charge is the best deal
against all those who have reported stolen and converted the money of the
Republic of Liberia to their own use and benefit. Theft of Property will not
secure and do the trick.
If low rated criminal defendants have reported
and openly broken jail and made their way from out of the Monrovia Central
Prison of Liberia, how’s about Mr. Kamara and the other powerful criminal
defendants who have much money, experience, and contacts all over this
world? The government of Liberia needed to have and should have charged Mr.
Kamara and the other defendants with Economic Sabotage and not Theft of
Property.
If we take the opinion that these defendants are
properly subject to criminal prosecution and not civil prosecution, then it
is saved to hold that the Ministry of Justice of the Republic of Liberia has
no judicial power to ever try or convict a criminal defendant. So, why
continue to investigate criminal defendants such as Mr. Charles G. Bryant,
Edwin M. Snowe, and others at the Justice Ministry?
The Ministry of
Justice has no Power to Convict
Since the Audit Report found by the Economic
Community of West African States came up and unequivocally linked many
former officials of the Bryant-led government and many former official of
the Taylor-led government with callously, knowingly, and consciously
defrauding and cheating the government and people of Liberia of their much
needed revenue necessary for social services and development in Liberia,
developments and news coming from out of Liberia have from time-to-time and
consistently indicated and represented that instead of arresting, indicting,
and speedily bringing to trial those accused of stealing and converting to
their personal use and benefit the revenue of the Republic of Liberia, for
the most part, the Ministry of Justice of the Republic of Liberia has
devoted much time and energy to investigate criminal defendants at the
Ministery of Justice of Liberia.
As the Chief Prosecutor of crimes in the
Republic of Liberia, the Ministry of Justice needs to know and remember that
any such long, less-circulated, and insubstantial investigation will in no
way help the Ministry to successfully prosecute and sustain a guilty verdict
at the Ministry of Justice against any of those named under the ECOWAS’
audit report. So, why continue to investigate those accused of cheating and
defrauding the government and people of Liberia at the Ministry of Justice
of Liberia?
Anyone who has professionally and circumspectly
followed the works and activities of the Ministry of Justice since the audit
report was returned by ECOWAS, will know and note that nothing much has been
substantially and efficaciously done by the Ministry of Justice when it
comes to judiciously and speedily arresting, indicting and prosecuting those
criminal defendants named under the ECOWAS’ audit report. What the Liberian
people need and deserve at this stage is a careful and circulated
prosecution that shall yield sustained guilty verdicts against those accused
and not mere time-wasted investigations at the Justice Ministry.
Apart from this, the Ellen Johnson Sirleaf-led
government needs to be congratulated, encouraged, and praised for having the
courage, finding the strength, and for assuming the political will to even
arrest, charge, detain, and bring to trial some former officials of the
Taylor and Charles G. Bryant-led governments. But, more needs to be done
when it comes to actual and effective prosecution. We recommend that the
government takes courage and contracts out some of its prosecutorial duties
and responsibilities to well-intentioned and well-meaning Liberian Attorneys
and Counsellors with vast criminal law and criminal procedure law knowledge,
practice experience, and prosecutorial skills to help the government to
speedily and timely prosecute Mr. Bryant and all those who are alleged to
have cheated and defrauded the government and people of Liberia. This needs
to be done for the sake of the Republic of Liberia and the struggling people
of Liberia.
This action is a positive development in
Liberia, and it certainly represents a good and an excellent move in the
name of encouraging, sustaining, and upholding the rule of law and economic
justice in the Liberia. But nevertheless, this good and excellent waive of
prosecutorial fever needs to be extended also to individuals and their
properties such as:
1. Charles G. Taylor, former President of
Liberia
2. Mrs. Jewel Howard-Taylor
3. Grace Beatrice Minor
4. Edwin M. Snowe
5. Charles R. Bright
6. John T. Richardson
7. Emmanuel Shaw
8. Benoni Urey
9. Agnes Reeves Taylor
10. Charles Emmanuel Taylor, Jr.
11. Gabriel Doe
-
Adolphus Saye DOLO
-
Belle Dunbar
-
Martin George
-
Myrtle Gibson
-
Reginald B. Goodbridge
-
Jenkins Dunbar
18. Gus Kouwenhoven, former president and
managing director of OTC
19. George Dweh
20. Gerald Cooper
21. Randolph Cooper
22. Maurice Cooper
23. Cyril Allen
24. General James Coo Coo Dennis
25. Richard R. Devine
26. Charles G. Bryant, former Chairman of
the Transitional government of Liberia,
27. Wesley Momo Johnson.
No amount of legally unauthorized presidential
authorization is sufficient and enough to legally discharge Ambassador
Johnson of the responsibility of taking and converting to his personal use
and benefit US$34,000 to attend his daughter’s graduation in the United
States, while children of Liberia greatly lack the needed social services
and support.
Let Liberia be a country of laws and not a
country of personalities!
About The Author:
Counsellor Frederick A.B. Jayweh holds B.A., LL.B., and LL.M. degrees
from the African Bible College in Liberia, the Louise Arthur Grimes School
of Law, University of Liberia, and the University of Denver College of Law,
University of Denver. Also, he is the former Executive Director of the Civil
Rights Association of Liberian Lawyers Inc., a future Executive Director of
the Association of Liberian Lawyers in the Americas, (ALLA), and a former
Magisterial Judge of the Monrovia City Court, Republic of Liberia.
Currently, Counsellor Jayweh lives and works in Denver, Colorado, and he can
be reached by way of fjayweh@hotmail.com,
or by way of : 303-884-2652.
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