Should Samukai Be Certificated By The National Elections Commission?
In the past few weeks, the media (both print and electronic) has been busy with debates concerning the criminal conviction of the former Defense Minister, Mr. Brownie Samukai. The debates have risen to the level of inciting violence and probably violence. The coincidence of the petro bomb attacks at the residence of Justice Joseph Nagbe and the National Elections Commission could very well speak to these facts. However, results of the investigation being undertaken by the security agencies will help clarify doubts as to the motive behind these attacks. Now, the issues concerning Mr. Brownie Samukai.
Mr. Samukai was indicted by the Grand Jury of Montserrado County for the crime of theft of property, criminal conspiracy, money laundering and economic sabotage. At the commencement of the trial, he was arraigned and pleaded not guilty, thereby joining issues with the state. He, under the advice of his Lawyers, (presumably), waived jury trial and opted for bench trial. This means he preferred to have the Trial Judge, Judge Yarmie Quiqui Gbessay in this case, to serve both as jury and judge. Hence, the trial commenced consistent with law.
I would not have ordinarily involved myself with these of debates but because some of the advocates claim to be speaking for Lofa County and I am from that County, decided to clarify away that deception. That is to say, Lofa County has never elected or appointed any individual to speak as advocate for the promotion of individuals who have been convicted by the Courts of this country for having committed crimes against the state. I therefore urge these advocates to stop dragging Lofa County, a county of peaceful and dignified people known as the county of BREAD BASKET into their web. It is unfair and out rightly dishonest.
As to the trial, article 21 (g) of our constitution guarantees every accused persons certain basic rights which are fundamental. These includes the right to be presumed innocent until proven guilty by a standard which is set as beyond a reasonable doubt. It also includes the right to remain silent and to a Legal Counsel of his/her choice, and where he/she cannot afford to hire a private Layer, the State is required to afford him/her one. That is while all the fifteen counties have at least a public Defender who ranks the same as the County Attorney.
In the Case of Brownie Samukai as former Minister of National Defense who reigned for twelve years in the immediate past government of President Ellen Johnson Sirleaf, he would most likely not qualify for free legal services. True to these facts, he hired some of the best Lawyers in this Country to defend him
Now, in all criminal cases in which a person is charged with a greater crime than a petty offense, he/she is entitled to a jury trial as a matter of right. However, sections 20.2 and 20.3 of the Criminal Procedure Law permits an accused person to waive that right if it is made under the advice of Legal Counsel. The Supreme Court has repeatedly held that such waiver of the right to Jury must be made knowingly and intelligently even with the advise of a Legal Counsel.
In this case, Mr. Samukai is presumed to have been under sound Legal advice when he waived Jury trial. This is often an expression of absolute confidence in the ability of the presiding Judge to hold on to the truth of the matter of fact in the case. In this particular case, the question is whether the evidence produced at the trial was sufficient to support a finding of conviction of Mr. Samukai? Here we must review the evidence as revealed in the records.
The prosecution which always has the burden of proof in criminal cases established by the evidence that a fund was established for the benefit of Soldiers of the Armed Forces of Liberia (AFL). It is for their retirement, health insurance, etc. As Minister of Defense, Mr. Samukai was in charge of the management of this fund which consisted of deductions from AFL soldiers salaries. The evidence further established that Mr. Samukai and his Deputies made several withdrawals in the amount of approximately one million one hundred forty seven thousand United States Dollars (USD$1,147,000) was withdrawnfrom the soldiers’ account without the consent and participation of the soldiers. In fact, the account was under complete control of Mr. Samukai and his Deputies, not even the Chief of Staff of the AFL who is the Highest ranking Soldier in the land was privy to the arrangement. Thus, a prima facie case was established and the burden of persuasion shifted to Samukai and his Co-Defendants. Here in our practice and the law , the accused must effectively rebut the prosecution’s evidence to create a reasonable doubt as to whether the Defendant committed the offense charged. With that reasonable doubt, the law requires the Trier of the facts, the judge in this case, and not the Jury, to find the Defendant not guilty.
Instead of presenting evidence to rebut the Prosecution’s evidence, the Defendants admitted the fact of taking the money, allegedly under instruction from President Ellen Johnson_Sirleaf. Proof of this fact was a letter from the late Dr. Edward McClain who was Minister of State for Presidential Affairs. Dr. McClain had died at the time of the trial of this case. May he find peace with Almighty God. No effort was made to have President Sirleaf to appear and Testify in Court nor a SUPOENA DUCES TECUM to produce supportive documents.
As to the reason for taking the money, the defense argued that the money was used to purchase supplies for the AFL and operations, Also, 50,000 of the amount was given to the bereaved family of a Nigerian General who provided valuable services to this Country. The records do not reveal evidence to this effect.
On the question of evidence as to the use of the money to purchase supplies for the AFL, there was none. For Operations, they said that was privileged information for national security purposes.
Another thing that was interesting was why did the Ministry of Defense not make this expenditure a matter of budgetary appropriations? Assuming the urgency existed at the time for the use of the money as alleged, which was not established by the Defense evidence, were efforts made in subsequent budgetary allocations to replace the Soldiers’ money? The Defense evidence did not established that. On the whole, no real evidence was presented by the Defense to effectively rebut the Prosecution’s evidence.. The facts having been conceded, the Court had no other choice but find the Defendants guilty of theft and criminal conspiracy.
Under section 15.51 of our penal law, “a person is guilty of theft if, he or she knowingly takes, misappropriates, or converts or exercises unauthorized control over, or makes an unauthorized transfer of an interest, the property of another with the intent to deprive the owner thereof.” The admitted withdrawal of the money aforesaid without replacement up to the trial of this case provided satisfaction of this requirement.
However, the Court dismissed the charges of money laundering and economic sabotage on grounds that the prosecution offered no evidence to prove those crimes. Criminal conspiracy was found because the three people acted in concert to commit the crime of theft and the law on conspiracy is when two or more persons act together to do something that is illegal.
In its finding, the Court was lienet in the mitigation of punishment because it suspended imprisonment and ordered restitution. This was a discretionary exercise of judicial prerogative and no body can question it.
Following the judgment, Mr. Samukai and others announced appeal to the Honorable Supreme Court. While the case was on appeal, he decided to contest for the Senate from Lofa County. He got the votes even though there were challenges from some interested parties. Before certification however, the supreme Court handed down its opinion confirming the judgment of the Lower Court.
The question is should NEC certificate Mr. Samukai, someone who has just been convicted by the Courts of the crime of theft of property to sit and served as Honorable Senator?
The Minister of Justice wrote NEC and advised that certification in this case is not legally permissible and referred NEC to the law which is in plain language. Section 50.12(b), of the Penal Law and, article 21(i) of the Constitution. Article 50.12(b) mandates that one who has been convicted of committing a felonious offense growing out of his position as a public servant forfeits his office. Whereas, article 21(i) of the constitution states that “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 executive pardon”. Does this mean that the Minister of Justice interfered with the functions of NEC by this letter? No. This is because one of the principle functions of the Minister of Justice as the Chief Legal Adviser to the Government is to advise the government and its agencies on matters of law. This is what Counsellor Dean did because politicians had organized their constituents to pressure NEC to certificate Samukai. Some even made threats of violence. By these laws, the Minister of Justice had no choice but to do what he did and this is not interference.
I have made these observations to explain away firstly, deceptions that Lofa County Citizens are ganging up to take actions to free their “so called Senator Elect Brownie Samukai and I am from Lofa County. Friends, relatives and supporters of Samukai have the rights to raise money to supporte their convicted relative. They should however,leave Lofa County out and spare Liberia of further violence.
The crime of theft carries with it the double punishments of restitution and imprisonment. In this case, the Court, in exercising its discretion for leniency, even suspended sentencing and order restitution, with the implication that sentencing may be waived if restitution is timely made. At this point, the best thing to do in my view, is to quietly seek assistance from friends and supporters to meet this challenge or pardon from the President. But stop the wrong impression that Lofa County people are ganging up to liberate somebody by extra judicial means.
Apart from the law prohibiting certification, there is the moral side to this issue. First of all, should a criminal sit in and participate in the works of the Legislature, particularly as relate to the functions of serving as check on the potential excesses of the executive, which may frequently involve financial matters? Will such persons be expected to help fight corruption which is eating up development in Africa? Will perceptions that the Liberian Legislature consists of individuals convicted for committing crimes help shape the image this country needs to encourage its development partners and attract new ones?
Schedule 2 at the end of the constitution requires that before taking office of public trust, public servants must subscribe to an oath of affirmation. The issue of oath before taking office of public trust is purely a matter of morality, which is the essence of the law. The Law cannot be separated from morality except it ceases to be. Hence, to certificate criminally convicted persons to serve in the Legislature, the first branch of Government will throw the wrong signals to the whole world that we (Liberians) are not serious.