Liberia: Could NEC Chair Go Free on Technicality?

The Chairperson of the National Elections Commission has asked Judge Ciapha Carey of Criminal Court ‘C’ to dismiss the government’s criminal indictment on grounds that the Liberia Anti-Corruption Commission violated the National Code of Conduct of 2014.

The electoral body chair, Davidetta Browne Lansanah, through her lawyers, argued in court that the anti-graft body violated the code of conduct (CoC) when it took upon itself the responsibility of the Ombudsman, as provided by Section 12.2, to investigate and charge their client based on alleged violation of the law.

Mrs. Lansanah faces counts of corruption, conflict of interest, and money-laundering in violation of Section 1.3.6, of the National Code of Conduct, which speaks against conflict of interest; Part II, Section 2.2 of the LACC Act and section 15.3 of the Money laundering Act of 2012.

Her trial follows a criminal investigation by the LACC, which alleged that the electoral body chair did not disclose her vested interest in Tuma Enterprise Inc., before awarding the firm a contract of US$182,320 for the leasing of a facial recognition system — while presiding over the procurement committee for the contract. 

Tuma Enterprise is a firm with strong family links to the NEC chair. The company’s Vice President for Operations, David Browne, is her paternal brother, while Arnold Badio, owner and incorporator of the company, is a brother to David Browne from the same Mother.

They are just ascribing

However, in court, the NEC boss is requesting Judge Carey to dismiss the case, as a result of LACC’s violation of the Code of Conduct (CoC) law.“There is no law under the CoC to make insider trading a criminal offense. I challenge the government to show me any law in the CoC that makes insider trading criminality," argued Cllr. Augustine Toe, a former commissioner of the LACC, now serving as legal counsel for Madam Browne Lansanah.

Cllr. Toe’s argument comes after he and his colleagues had filed for a motion of dismissal — claiming the action by the LACC to ascribe authority to the ombudsman is a clear violation of the CoC — a situation which qualified the indictment for dismissal.

“Nobody should be made to suffer from insider trading. Every day in government, be it the solicitor general or the chairman of the LACC, they are just ascribing unto themselves authority. They are engaging in jungle justice,” Cllr. Toe said, describing the indictment.  “They are desperate for power and taking the law into their own hands.”

Section 12.2 of the National Code of Conduct, which Cllr. Toe set as the basis of his argument, states that the office of Ombudsman “shall receive and investigate all complaints in respect to the adherence to the CoC.  In the case where there is a determination of guilt and violation of the code by private and public officials and employees of the government, said violation shall be submitted by the Ombudsman to the LACC or other relevant agencies of the government. The office of Ombudsman shall be responsible to collaborate with the three branches of government and civil society organizations in order to develop regulations for the CoC.”

Cllr. Toe argued that was not the case. Instead, according to him, the LACC acted in the role of the Ombudsman to investigate violations of the CoC by public officials, which is illegal. “The LACC is taking power that has not been given to them by the law," he said. "They don't want to establish the Ombudsman because every day some of them are in violation of the CoC. This is why they are engaging in illegal means to solve legal problems.” 

Pleading with Judge Carey, Cllr. Toe said: “Please don't let prosperity judge you if you refuse to dismiss the illegal indictment.”

Meanwhile, Judge Carey has reserved his ruling into the matter and did not mention a specific date and time for a said ruling.  The motion to dismiss the indictment is an attempt by the electoral body’s lawyers to have the case thrown out by the courts. It is a motion asking the court to review the prosecutors’ legal analysis of the case, including the flaws and pitfalls presented — arguing that the trial should end and that their client does not deserve to be charged.

However, the decision to dismiss would not be taken lightly by the court judge or accepted quietly by the plaintiff, as the grounds for dismissal must be clearly proven in order for the court judge to uphold the motion. If the trial is dismissed, that means the case could be effectively over before it has even started.  But if Judge Carey were to reject the Cllr. Toe’s argument, the case goes to a full trial. 

And at trial, prosecutors are likely to rely heavily on the LACC’s findings of the family ties between the NEC boss and Tuma Enterprises, to prove the case of conflict of interest, and the accusation of insider trading and market manipulation, due to her position on the procurement committee or knowledge about the contract. However, prosecutors will have to prove beyond a reasonable doubt how the NEC chair may have influenced the procurement process.

The LACC, in response to Cllr. Toe, defended their action and the indictment and prayed Judge Carey not to dismiss the indictment since they did not violate any provision of the CoC.

However, in a twist, LACC’s lead lawyer, Cllr. Jerry Garlawulo agrees with the defense counsel that the Ombudsman under the CoC should have been the first place where the investigation should have started. However, he noted, its absence cannot be the reason for the LACC to remain silent and allow perpetrators who abuse public office to go free.

“If the office of Ombudsman is not established then should we not investigate any breach of the code?  Should we allow the person to go free because there is no ombudsman?” asked Garlawulo. One of the major reasons for a court to dismiss an indictment is because of the lack of jurisdiction of a person and the subject matter. Since the lawyer did not raise such an issue, I believe the motion for dismissal of the indictment should be denied.” 

Garlawolu’s argument references Section 9.11 of the National Code of Conduct, titled: ‘Disclosure of Interest’. It reads: “Where Public Officials and Employees of Government have direct or indirect personal interests in a matter being examined, he or she shall inform the authorities of those interests and shall excuse himself or herself before deliberations are held and a vote or decision is taken.”

The indictment

The LACC’s probe and criminal prosecution of the NEC chair came after the Daily Observer published an investigative report in November of 2021 that discovered that the electoral body leased twenty facial recognition thermometers at the total cost of US$182,320 from a firm with family links to the NEC chair.

The Observer reports revealed that Tuma Enterprises, which was hired by NEC to provide a facial recognition system for the conduct of training for by-election polling staff in four counties, had a relationship with the NEC chair in the person of its Vice President for Operations, who happens to be the biological brother of the NEC Chairperson.

It was also established that Arnold Badio, owner and incorporator of the company, is a maternal brother to David Browne. During the Daily Observer investigation, the NEC chair declined to comment on the relationship when asked for a response. 

The leased equipment costs not more than US$1,500 on Amazon.com; but NEC opted not to procure the equipment on its own, but entered a deal with Tuma Enterprises that resulted in a unit cost of US$9,166 to lease each of the twenty facial recognition systems from the company, for a total of US$183,320.  If the NEC had purchased the equipment, it would have saved a whopping US$153,320, while owning the equipment outrightly, instead of leasing it. 

The NEC’s information technology engineers said the systems were leased to detect the temperatures of trainee poll workers ahead of the November 16, 2012 by-elections in Nimba, Bong, Grand Gedeh, and Bomi Counties, as well as to monitor access and attendance for safe and efficient access control of personnel. According to them, the cost per unit included custom software integration to allow the thermometers to work as fully intended. 

Tuma Enterprise is a technology company established in Liberia in 2020 and has since won lucrative contracts from the government, including the building of a mobile app to keep track of travelers in and out of Liberia with regard to their COVID-19 status.

Meanwhile, the NEC chair, before filing for the motion of dismissal, has consistently rejected the LACC’s claims of corruption, conflict of interest, and money laundering and denied a claim by the anti-graft institution also that she made certain admissions of guilt during an appearance before the LACC.