Follow The Law on The Books, Then Ask What the Tape Actually Proves

Liberia’s Constitution and Penal Code already say what should happen to a secretly recorded conversation. A precedent set in one courtroom this year should not quietly rewrite that law. And even if a judge lets Liberians hear the recording against Jewel Howard-Taylor, the harder question — the one this newspaper thinks matters — is whether the words on it come anywhere close to proving nine felony charges.

SOMEWHERE BETWEEN A COURTROOM in Monrovia and the front pages of this newspaper, a subtle but important shift has been happening Liberians have started talking about the recording at the center of the Howard-Taylor case as though the only question worth asking is whether a judge will let jurors hear it. That is the wrong question, or at least an incomplete one. Liberia already has an answer, in writing, for how secretly recorded conversations are supposed to be treated. Articles 16 and 17 of the Constitution protect the privacy of citizens and their communications. Title 26, Article 19.1 of the Penal Code makes unauthorized eavesdropping and the covert interception of non-public communications a first-degree misdemeanor. That is not ambiguous language open to a judge’s mood on a given morning. It is the law, passed by the people entitled to write it, and it deserves to be applied with the same rigor in this case that it would be applied to anyone else’s private phone call.

WE UNDERSTAND WHY a different standard has crept into the conversation. Earlier this year, in the Capitol arson case against former Speaker J. Fonati Koffa, a judge provisionally admitted a secret recording over serious defense objections, reasoning that evidence need only be “potentially relevant” to reach a jury, with credibility left for jurors to sort out later. The Supreme Court, asked to intervene, declined to disturb that ruling.

WHATEVER THE LEGAL reasoning behind it, and whatever criticism it has attracted since, this newspaper does not believe that one ruling in one case should now function as an unwritten amendment to the Constitution and the Penal Code. A precedent is not a statute. If Liberia’s courts believe the exclusionary standard written into Articles 16, 17 and Title 26 no longer reflects how justice should work in an age of cell phones and cooperating witnesses, that is a conversation for the Legislature, argued in the open, not a quiet drift accomplished one provisional ruling at a time.

SO, OUR FIRST REQUEST of the court hearing the case against Jewel Howard-Taylor is the simplest one: read the law as it is written before reaching for how another judge read it in a different case, with a different recording, under different facts. If the recording of Sheikh Bassirou Kante’s call was obtained in a way the Constitution and the Penal Code were specifically written to prohibit, that fact should carry real weight in whether it is admitted at all — not get waved through because a precedent exists that makes waving it through easier. But suppose the recording is admitted, cleanly and lawfully, exactly as the government hopes. Even then, this newspaper believes Liberians are being asked to skip past the more important question in their rush to litigate the legal technicalities.

WHAT, PRECISELY, does the recording say? By every account made public so far, it amounts to a single sentence: that the “investors” Howard-Taylor met in Dubai had sent her a “gift.” That is a suggestive sentence. It is not, on its own, a confession to illicit drug trafficking, importation, exportation, conspiracy, facilitation, solicitation, money laundering or abuse of office — the nine separate charges she is now facing. A gift can be an investment. A gift can be a courtesy. A gift can be exactly what prosecutors allege it to be. The recording alone does not tell us which, and neither, as far as the public record shows, does anything else that has been made public about this case.

THIS IS THE STANDARD we would ask any court to hold any defendant to, and we ask it here without any interest in shielding a former Vice President from accountability she may, in the end, deserve. The question that should drive this case forward is not whether a recording exists, or even whether a judge lets it into evidence. It is whether the actual words on that recording, combined with whatever else the state can lawfully produce, add up to proof of the specific crimes charged — proof strong enough to survive a defense that will contest every word of it, exactly as Koffa’s defense contested the tape used against him. If the facts support the charges, Liberians deserve to see that case made plainly, evidence to element, count by count. If they do not yet support all nine counts, Liberians deserve to hear that too, rather than watch a single ambiguous word carry the weight of an entire prosecution.

LIBERIA HAS SPENT this whole summer learning, the hard way, what happens when the government announces conclusions before the evidence is ready to support them.

THE COUNTRY CANNOT afford to make that mistake again, this time in a courtroom the entire region is watching. Follow the law on secret recordings as it is written. Then ask, honestly and specifically, whether what was said on that recording proves what the charge sheet claims. Everything else is noise.