Lawyers representing Senator Varney Sherman (Grand Cape Mount County) and several others charged in the Global Witness US$900,000 bribery scandal have filed a request before Criminal Court ‘C’ to drop the case brought against them by the government.
Senator Sherman in his “Motion to Dismiss” argued that the 2010 Restated and Amended Public Procurement and Concessions (PPC) Act was published on September 18, 2010, but the draft copy was referred to the Legislature by a letter dated August 5, 2010 from President Ellen Johnson Sirleaf to the lawmakers, pointing to Section 75 of that Act.
Global Witness recently released a report accusing Senator Varney G. Sherman of receiving more than US$900,000 from a UK mining company, Sable Mining Africa Limited, to bribe senior government officials in an effort to change Section 75 of the Public Procurement Concession Commission (PPCC) for the sole purpose of granting the company a non-bidding right to the Wologizi Mountain in Lofa County.
Further to the request, the Sherman lawyers argued that firstly, in March 2010, President Sirleaf confirmed that the World Bank, United Nations Development Program (UNDP) and the Intentional Senior Lawyers Program prepared and promulgated a Mineral Policy and Exploration Regulation that same month.
“That body also provided technical assistance for the 2010 Restated and Amended PPC Act and that the lawmakers did not change a single letter in the draft to arrive at the final that was enacted into law, approved and published by President Sirleaf,” they contended.
According to them, the exploration regulation gives authority to the Minister of Lands, Mines and Energy to issue exploration license and to enter into exploration agreement to explore for minerals in Liberia.
Such exploration license or agreement, they alleged, did not necessarily require the execution of a concession agreement (Mineral Development Agreement) until such time that the ministry is satisfied that it has found commercial quantity of the minerals and wants to explore it for the benefit of the ministry and that of the country.
This, they claimed, shows that there was no motivation for the defendants to commit the crimes for which they have been indicted.
“Section 75 of the 2010 Revised and Amended PPCC Act, which the indictment alleges that we wanted included into that law, was already included and so there was absolutely no basis for that allegation. The Minister of Lands, Mines and Energy has the authority to issue exploration license for non-bidding areas and it was already covered by the Exploration Regulation,” they argued, adding, “All that the 2010 Restated and Amended PPCC Act did was to make the minister’s authority a matter of law, so as to be able to justify the overriding of the 2005 Act.”
More than that, Section 75 of the 2010 Restated and Amended PPCC Act can only be implemented in conjunction with Sections 82 and 95 of that law, they said.
They further explained that the two sections clearly reveal that the grant of an exploration license or exploration agreement for a non-bidding area to a person is not done exclusively by the minister, but that the Inter Ministerial Concession Commission (IMCC) plays a very significant role in that process.
The IMCC, they explained “provides a check and balance role to ensure transparency, and impartiality also laid a premise of “First-Come-First Served Principle,” which is a fundamental basis for exercising the authority of Section 75.
“That is, the first person who applies for an exploration license or exploration agreement for a non-bidding area shall be given the first opportunity for exercise of Section 75’s authority,” Sherman’s lawyers clarified.
Under a parity of reasoning, they argued whether “it can be arguably submitted that bribery was committed to get Section 75 inserted into the 2010 Restated and Amended PPCC Act, when Sections 82 and 95 of that same law removes all description from the minister to provide check and balance authority to the IMCC, while still the ‘First-Come-First-Serve Principle’ is applicable.”
They continued, “Also the fact is, insofar as the Wolozigi Mountain was concerned, before Sable Mining presented an expression of interest, the other companies, Capital Mining and China Henan International Corporation Group had submitted their expressions of interest.
“And by the time of the enactment of the 2010 Restated and Amended PPC Act in September 2010, there were twelve expressions of interest for the same Wolozigi Mountain.
“It is impossible that the defendants would pay and receive bribe to give the force of law to what was already in existence in the form of regulation in August 2010, and for which a form of regulation agreement existed back in March 2010,” they said.
They argued further that “This simply means that there was no law that the defendants wanted to change for which bribes in excess of US$900,000 was given by Sable Mining.”
More than that, they argued, “even the government has stated in reaction of the Global Witness Report that the Wologizi Mountain was never out for tender and that no one ever spoke of tendering the mountain.
“And for the uncertainty and lack of particularity and specificity in the indictment we plead for it to be dismissed,” they suggested.
Prosecutors are yet to respond to Sherman’s request to dismiss his indictment.