.... As Judge Carey rules that the Criminal Court was constrained by the law to grant the motion to dismiss the indictment as all proceedings into the case are abated as if the case was never initiated and that her criminal appearance bond is “hereby ordered returned.”
Judge Ciapha Carey has dismissed the criminal indictment against the Chairperson of the National Elections Commission without looking into the merit and demerit of the case.
The Judge granted a motion from Davidetta Browne Lansanah’s lawyers to dismiss the indictment on grounds that the Liberia Anti-Corruption Commission violated the National Code of Conduct of 2014 (CoC) when it took upon itself the function of the Ombudsman, to investigate violators of the law as provided in Section 12.2.
Under the 2014 law, the office of the Ombudsman has exclusive authority to receive and investigate alleged violations of the code and impose administrative sanctions.
“The motion ought to be and same is hereby granted without prejudice to the LACC because this court holds and finds that it lacks jurisdiction over the subject matter of this case — over the thing involved, over the person of the defendant, and also because the LACC lacked legal capacity to take unto itself the function of the Ombudsman in assuming original jurisdiction to investigate an alleged violation of the CoC,” Judge Carey of Criminal ‘C’ said in his ruling.
The action by the judge to dismiss the case without prejudice” means that the state can refile the case at a later date. The LACC has however said that the case is not over and the Commission will submit a bill of exceptions to the Supreme Court against Judge Carey’s ruling. So far, the NEC boss is yet to deny the contents of the LACC indictment that she influenced the awarding of an US$182,300 contract to a firm with which she has strong family ties.
“We will continue with the proceedings at the Supreme Court. We expected this outcome from the lower court and as such we have long since prepared for what is ahead,” Cllr. Edwin Kla Martin, Executive Chairperson of LACC told the Daily Observer via mobile phone yesterday evening.
The LACC had charged the electoral body chair with corruption, conflict of interest, and money laundering. She was accused of awarding a family firm a contract of US$182,320 without disclosing her vested interest before awarding the contract for the leasing of a facial recognition system — while presiding over the procurement committee.
Her action, the LACC said, violated 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. The company’s Vice President for Operations, David Browne, is her paternal brother, while Arnold Badio, owner and incorporator of the company, Tuma Enterprise, is a brother of David Browne from the same mother.
But Judge Carey, while dismissing the indictment, noted that the electoral body chair is exempted from further answering to the charges and that the court lacks jurisdiction over the subject matter and the thing involved — insider trading and the CoC.
According to Judge Carey, his court was constrained by the law to grant the motion to dismiss the indictment as all proceedings into the case are abated as if the case was never initiated and that her criminal appearance is “hereby ordered returned.”
The judge added the CoC provides for administrative sanctions and that nowhere in the law is there a provision for a criminal court to impose or to judicially review the imposition of the code’s administrative sanctions. He then added that violation of the CoC is not a criminal offense as there is no provision in the law that makes a violation a felony or misdemeanor.
“The sanctions or punishment listed therein are all civil sanctions, except when that leads to the violation of the CoC is in itself a criminal act under our laws — it is there and then that the matter will be referred to the LACC or other relevant agency to investigate and prosecute,” Carey’s ruling said.
“The CoC Act in clear language provides that the Ombudsman shall receive and investigate all complaints and so, for the LACC to declare that in the absence of the Ombudsman, it had the legal authority to undertake investigation and prosecute an alleged violation of the CoC by the defendant, is not supported by law and cannot be sustained. Accordingly, LACC’s contention is overruled, denied, and dismissed and the motion sustained."
Initially, the LACC had argued for the motion to dismiss the indictment to be denied because insider trading and market manipulation were enacted in the Anti-Money Laundering and Terrorist Financial Act of 2012, and the Ombudsman’s absence cannot be the reason for the LACC to remain silent and allow perpetrators who abuse public office to go free.
The LACC had referenced Section 9.11 of the CoC titled: ‘Disclosure of Interest’ as the reason for investigating and indicting the NEC chair. The section 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 oneself before deliberations are held and a vote or decision is taken.”
But lawyers for the chair of the electoral body, relying on Section 12.2 of the law, argued that the office of the Ombudsman should have been the one to receive and investigate all complaints with respect to the adherence to the CoC. Section 12.2 of the law. “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,” he said.
Based on the argument, one of the defendant's lawyers — Cllr. Augustine Toe, a former commissioner of the LACC, claims that the action by the LACC to ascribe authority to the ombudsman is a clear violation of the CoC — a situation that qualified the indictment for dismissal.
And agreeing, Judge Carey said for the LACC to acquire the capacity to investigate and prosecute alleged violations of the act that is a clear breach of the CoC. Rather, the judge noted that the LACC should have received a report from the Ombudsman which contains findings or determinations of the guilty against the accused person, and it is only then that the anti-graft body can assume jurisdiction to conduct criminal investigation and prosecution for violation of the act, which is criminal under “our laws, and that is also in breach of the CoC.”
“Had the framers of the law intended to allow any other body to investigate complaints of the CoC in the absence of the Ombudsman, it would have expressly stated it in the law," Judge Carey justified his decision. "The LACC does not prosecute for violation of the CoC; rather, it prosecutes for the criminal conduct that led to the violation of the CoC. Therefore, that contention of the LACC is not sustained, and it is hereby dismissed without going into the merit of the case.”
Meanwhile, had Judge Carey ruled that LACC's other chargesß of insider trading and market manipulation have not been criminalized in Liberia and that the anti-graft body did not cite any provision of the money laundering and terrorist financing act, where insider trading is defined or criminalized.
Judge Carey however noted while the LACC argued that insider trading is listed as a predicate offense to money laundering under chapter 15, section 15.3 of the Anti-Money Laundering and Terrorist Financial Act of 2012 — it is not a crime under “our laws for the fact that it is not defined by any stature.”
“Crime and punishment go together. In keeping with practice, when the legislature penalizes conduct, it does so by defining or stating what the conduct is, and what the attending punishment is, he said. “Moreover, it must grade the offense as either a first or second-degree felony, or a first, second, or third-degree misdemeanor. It is in the legislature's authority to define what conduct constitutes a crime, and what is the punishment thereof.”
“This court is Criminal Court and not Civil. It is only in Civil Court that a party or the court can rely on receptive stature or other instruments or outlets to help inform its decision when there is no law or precedent to rely on. But, in a criminal court like this one, only what the legislature has defined as a crime can be entertained,” Carey's ruling explained.
The LACC’s probe and criminal prosecution of the NEC chair came after the Daily Observer published investigative reports 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.
During the Daily Observer’s investigation, the NEC chair declined to comment on the relationship when asked for a response, and in court, she has said nothing about such a link but rather focus on the technical aspect of the indictment to have the case dismissed.
If the company had purchased the equipment outright, it would have saved US$153,320. Each system costs US$9,166 per unit, at a retail price of US$1,500 on Amazon.com. The machines were intended to detect the temperatures of poll workers for 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.
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. The company is a technology company established in Liberia in 2020 and has since won lucrative contracts from the government. The company's work includes the building of a mobile app to keep track of travelers in and out of Liberia with regard to their COVID-19 status, among other things.