The law and politics of targeted sanctions – when a drastic sore gets a dose of drastic medicine: the case of the sanctioned Liberian officials

 By Wonderr K. Freeman

Wonderr K. Freeman – ATTORNEY AT LAW

Liberia has been abuzz with talks of sanctions, since the US Government Office of Foreign Assets Control (OFAC/Treasure Department) slammed sanctions on three senior Liberian public officials. These sanctions are being widely celebrated locally, as the Congress for Democratic Change (CDC) regime gets entrapped in myriad financial scandals. However, as expected, those accused have understandably protested their innocence and countered that the sanctions are unfair and unjust, and that the sanctions ostensibly deny them their God-given inalienable rights to due process. President Weah has also asserted this very point recently. Justifiably, this is a long-standing valid argument against sanctions, whether targeted or comprehensive. This article argues that even though sanctions have “questionable” legal validity, the acts allegedly committed are equally very egregious and cannot be ignored. Most often, the jurisdictions in which these alleged egregious crimes occurred avail very little to no opportunity for legal redress. So, while according the accused his/her full due-process rights is the “ideal” legal scenario, the specific egregious nature of the alleged crimes, and the near total lack of avenue or forum for justice in the jurisdiction of the crimes/criminals, leave only the blunt instrument – targeted sanctions – better understood in Liberia as “drastic medicine”. So, in this article, I argue that corruption is Liberia’s “drastic sore” that equally requires “drastic medicine”. I do not suppose herein that US targeted sanctions are the only “medicine”, but as many would agree, it is a much-needed first step. The incoming Liberian government (2024) will complete the treatment of Liberia’s “drastic sore” with even more “drastic medicines”. Only by breaking the cycle of corruption and malfeasance can Liberia escape the poverty trap it has endured for decades.

Global Magnitsky Human Rights Accountability Act (2016): a relevant historical backdrop

To understand the logic that underpins the Global Magnitsky Act, one must digress a bit to understand the story of Sergei Magnitsky. Sergei was a tax advisor for a Russian law firm, assigned at a foreign multinational investment firm that had operations in Russia. When higher-ups at the Russian tax authority, police and interior ministries tried to fake a $230m tax refund claim on his institution (the investment firm), Magnitsky exposed the fraud (i.e., whistleblowing). The angry bosses within the various Russian government departments mentioned, who stood to benefit from this grand fraud, had Magnitsky arrested on tax evasion and other trumped-up charges. He would go on to spend 11 months in jail without trial. During his incarceration, he was beaten up regularly and denied medical treatment. Sergei Magnitsky succumbed to his torture and died in November 2009. His death did not end the torment, as Russian officials, brought fresh tax evasion charges against the “already dead” Magnitsky and convicted this “dead” Magnitsky and another person from the firm. Due to the failure of the Russian government to bring to justice those who were responsible for Magnitsky’s death, the US government, passed the Sergei Magnitsky Rule of Law and Accountability Act (2012), which aim was to specifically target all Russian officials complicit in official oppression of Magnitsky and all those “officials” who benefitted financially from “illegal acts” against human rights advocates and anti-graft whistleblowers in Russia.

The Global Magnitsky Act is a recognition by the US government that the very acts that caused the death of Sergei Magnitsky are obtaining routinely around the world. Since the original Magnitsky Act was restricted to Russia, there was a need for such [US] law that will incorporate both human rights, democracy, and anti-corruption issues. Hence, in 2016, the US government, passed the Global Magnitsky Human Rights Accountability Act (2016) – which six years later is performing wonders in the Republic of Liberia. In administering this law, the White House is involved, as well as the Attorney General Office, including the Departments of State and Treasury. If four departments of the US government must agree on any action under this law, one can only imagine how much due diligence is involved in designating officials for sanctions.

Global Magnitsky Liberian sanctions designations (2022) – what were the standards applied to determine who gets sanctioned?

In order for the US to administer its “drastic medicine” of targeted sanctions, three conditions must be present. These include: (1) a serious cognizable wrongdoing or violation must have been done or is continuing; (2) This wrongdoing was done or is being perpetrated by public officials or other persons acting under their instructions or directives; and (3) the state in which the wrongdoing occurs must either lack capacity to bring the alleged culprits to justice or must demonstrate high-level of unwillingness to bring the accused to trial/justice. And since the accused are also not US citizens to be subject to US law (remember Chucky Taylor’s 99-year sentence), the US government is left with only the “drastic medicine” option, which option I argue, again, is political in nature (or arguably quasi-legal, at best), but very very necessary, given the totality of the circumstances. Understandably then, under §1263 of the Global Magnitsky Act, the President of the United States, acting upon “credible evidence”, may impose sanctions on “foreign persons” for killing or torturing whistle-blowers or human rights/democracy advocates or for significant corruption and money-laundering. It’s highly plausible that the latter conduct – significant corruption and money-laundering – is the dragnet that caught the three Liberian officials. Of course, the OFAC/Treasury Department, the State Department, and the Department of Justice jointly decide on the evidence and the list. The President of the US basically signs on, once these three departments are in agreement.

Now, is it true that the sanctioned Liberian officials could never have faced trial locally, thereby prompting the US to administer its “drastic medicine”?

As a matter of fact, under international law generally, the primary trigger for international action – whether targeted sanctions or international court trial – is either (1) the state’s incapacity, or (2) the state/government unwillingness to bring the accused/culprits to justice. It can be lawfully and logically argued, that since the Act is based on “credible evidence”, why not the Americans just give this evidence to the Liberian government, and then the Liberian government can prosecute the culprits. This makes more sense. So, this line of argument goes. However, this brings us back to the state’s capacity and unwillingness issues and constraints. The CDC government has clearly demonstrated unwillingness to bring accused officials to trial. There have been so many instances of this (so many). I will mention just a few examples to underscore the point.

  1. The Ellen Cockrum tape – our Solicitor General (SG) was caught on tape discussing with an indicted fugitive (Ellen Cockrum) clearly accepting bribes. In any normal country, a swift suspension would follow, followed by investigation and prosecution. I get it that Sayma Syrenius Cephus is a shameless individual, so he would not have resigned as SG, but what about President Weah? Why would he keep an SG in power, who has been caught on tape accepting bribes from an indicted fugitive? This is unforgivable! Sadly, under the CDC regime, Liberia has ceased to be a “normal” country. There was also this Korlane Investments case, of alleged money-laundering, in which local dailies reported that the SG and a magistrate at the Temple of Justice were in “conversation with a key suspect in the case”. And again, there was the case of state-sanctioned vandalism of Henry Costa’s radio station – allegedly done upon the orders of SG Cephus and the same colluding magistrate. This was treated as business as usual. But the international community always takes due notes of acts like these. So many illegal and unlawful acts committed by this one SG, Cephus; yet, not a day he ever faced investigation, or suspension, much less to talk of dismissal or prosecution. Cllr. Cephus continued to be the “face” of public prosecution in Liberia; even though he had lost all professional credibility. Had the US government not acted as such, surely Cllr. Cehpus would (as of today) still be the face of “the rule of law” in Liberia. What a travesty! President Weah’s keeping of Cllr. Cephus as SG was a disavowal of his very own oath of office! But as, Tom Kamara would quip, this too is Liberia!
  1. Take the case of Bill Twehway (aka Gbekugbeh junior). Same thing, crimes being committed with no accountability. Here is a man, Managing Director (MD) of National Port Authority (NPA), who, notwithstanding his position (as a politically-exposed person,[PEP]) got his brother to front for him, and formed a company with Cllr. Kanio Gbala (Vice Chairperson of LACC and another PEP) and others, and together, they jointly fleeced the NPA of over a million dollars. Again, and sadly also, no suspension, no investigation, no prosecution, just the usual political gimmicks. Well, fraud and money-laundering are very serious criminal offenses globally. When there is prima facie evidence of corruption against public officials, there must be credible investigation and prosecution. Did the Liberian government show any interest in investigating the Bill Twehway/Kanio Gbala corruption case? Of course not. With someone like Syrenius Cephus as SG, public prosecution is only for the likes of “Henry Costa” and “Alexander Cummings”. But, if you are a prominent member of the ruling party, then Liberian law does not apply to you. That’s why the Global Magnitsky Act is so relevant. That’s why the US global hegemony is so vital!
  1. Step forward Nathaniel McGill. He exposed himself as being in public office only to amass private wealth. One can mentioned many examples, like the “mansion for the dead”. McGill claims it was a friend who gifted him the “mansion for the dead”. As a public figure, however, McGill should know that the Code of Conduct Act (2014) does not allow a public official to receive such gifts (9.1, & §9.2). Then there was the case of Makenneh Keita, who, working under the supervision of McGill, solicited a whooping US$5m bribe from a foreign investor, demanding that said amount be wired (not to her personal account) but to an account at the Central Bank. To show the unseriousness of the Liberian government actions, this flagrant shakedown of a foreign investor was given (not to LACC or to MOJ), but to Archibald Bernard, legal advisor to the President. A felony is alleged, but the Liberian President chose to send the case to his “legal advisor”. We are still waiting for the report from Cllr. Bernard. Perhaps, this is “normal” by Liberian standards, but internationally, these are grave allegations. Was anyone ever brought to justice for this? Of course not! By McGill’s standard all forms of corruption are good, once you build a personal house” in Liberia. Then again was the case of another foreign investor shakedown when Augustine Weah accused McGill and other officials of the National Housing Authority (NHA) of demanding significant bribes as conditions for investing in housing projects in Liberia. Same story: no suspension, no investigation, no prosecution. Yet, President Weah continues to pontificate that he’s fighting corruption. This is laughable! What kind of corruption is he fighting, when his very office (Ministry of State) reeks with corruption? What kind of corruption is our President fighting when his chief of office staffs (McGill) is the kingpin for the criminal cartel looting the state’s coffers? These instances are public information. I bet the Americans know a lot more. No wonder why they decided to cut long story short by resorting to unorthodox methods – a.k.a “drastic medicine”.

 

What about the Judiciary and National Legislature?

It is clear that President Weah showed no inclination whatsoever to bring the sanctioned officials to justice, even amidst mountains of reports. If one reads the wordings of the Varney Sherman’s sanctions statement, one will see therein that the Americans indicted the entire Liberian Judiciary. When OFAC/USA sanctioned Cllr. Sherman in December of 2020, this is what they said of the Liberian judiciary:

… he (Sherman) offered bribes to multiple judges associated with his trial for a 2010 bribery scheme, and he had an undisclosed conflict of interest with the judge who ultimately returned a not guilty verdict in July 2019. Sherman has routinely paid judges to decide cases in his favor, and he has allegedly facilitated payments to Liberian politicians to support impeachment of a judge who has ruled against him.

So, if Americans write about the Liberian Judiciary in such a manner, judging our judiciary disreputable, it’s highly unlikely that they would turn over their “credible evidence” to be tried in Liberian courts. Okay, that was a case of the American government indicting the Liberian judiciary. The Liberian Judiciary equally indicts itself by issuing “questionable rulings” and “judgments”. Let’s take the case of “Hon.” Brownie J. Samukai. BJ Samukai, a senior public official (ex-defense minister), was duly convicted for “misapplication/theft” and had his appeal dismissed by the Supreme Court. Now, in any normal country, the fact that Samukai was a senior public official would necessitate a “harsher” punishment than for the average convict. Why? Because a senior public official is expected to know better and to set a better example. But the ruling by Liberia’s Supreme Court left much to be desired. Here is the ruling of Court in its own words:

… WHEREFORE and in view of the foregoing, the final judgment of the trial court is affirmed with modification. The appellants are all hereby sentenced to serve a term of two years each in a common jail. However, the sentences shall be suspended provided the said appellants shall restitute the full amount of US$1,147.656.35 (One Million One Hundred Forty-Seven Thousand Six Hundred Fifty-Six 35/100 United States Dollars) or fifty percent thereof within the period of six months and thereafter enter appropriate arrangements to pay the remaining portion in one calendar year. From Opinion (Sherman et al, vs. Republic of Liberia, October 2020)

Nowhere in the world will a high-ranking official convicted of “misapplication/theft” be given an option, to restitute stolen funds and not go to jail. This ruling is an indictment of the Liberian Judiciary. Presidents, governors, senators, and other top politicians of many nations are routinely jailed for graft and malfeasance, including recent examples from Brazil, South Africa, South Korea, and USA, Malaysia etc.  In every instance of sentencing, the convict status as a senior public official was an “aggravating circumstance” necessitating “harsher” penalty for crimes bordering on dishonesty, theft and fraud. But the Liberian Supreme Court, fully-cognizant of the law, chose to treat the BJ Samukai criminal case as a “debt matter” – offering him an “election” to restitute and then he would not have to set foot in a prison. Why set such a precedent? This precedent contradicts article 11c of the Liberian constitution! Now, when you have the Supreme Court of Liberia issuing such a ruling, what do we expect “foreigners” to think of us? The “BJ Samukai’s ruling” remains a blinking stain on our jurisprudence. This stain must be cleansed (i.e., recalled). This ruling shows, sadly, that there is a two-tier justice system in Liberian courts, one where the “big shots” get off lightly, and the other justice system, where the common man get punished severely, often jailed months/years before trial. This ruling shows that the Liberian judiciary cannot be trusted to ensure “big shots” do the time, after “doing the crime”. Is it any wonder then that the Americans chose to ignore the Judiciary completely, and slapped sanctions?

As if this Samukai’s ruling wasn’t enough, the lower [circuit] court, again, and contrary to law and plain common sense, carved out a stipulation agreement for BJ Samukai and others, that they can jointly pay USD500 per month – prorated to $166.67 per month per convict. At this rate, Samukai, who is about age 65/66, and his co-convicts will complete the restitution (US$1.1m) in the year 2213. This is the paper that Samukai’s lawyers, government prosecutors, and the presiding circuit-court judge put together. The only thing remaining is for the Guinness Book of World Records people to enter this travesty of justice into their book of shame. Now, if Liberian lawyers and judges can put their signatures to such an agreement, and failed to reverse same, despite the many public outcries, what do we expect foreigners to think of our justice system? This Samukai’s restitution agreement is simply inconceivable and ridiculous; senseless, to say the least. This are the kinds of problems with our judiciary why the US resorted to drastic “medicine”. It makes total sense.

The political dimensions of the targeted sanctions on Liberian officials

Politically, the US/OFAC sanctions are even more important, because, lately, the CDC regime has resorted to depleting state resources in the name of campaign. Recent elections have seen the CDC pivot from being a party of little means to a party of largess (charity), dishing out Liberian dollars by the millions to influence potential voters. Of course, they don’t call it vote-buying, they call it “development”. That’s T-Fallah’s preferred term – “development”. We saw such conduct in the Dillon-Fallah election and again in the Jallah-Kortimai election. Lately, Nathaniel McGill, has been seen dishing Liberian dollars by the millions. It’s very clear where these millions are coming from. Is equally why he’s dishing out those millions. 2023 is few months away! So, the Americans decided to intervene in an obstructive way by introducing its “drastic medicine”; a befitting remedy to the drastic sore of corruption afflicting Liberia. These days, when Liberian pray for country, they need not say much. They just need to say: God Bless the USA! [period].

Earlier, I discussed the Executive and the Judicial branches, but omitted the Legislative branch. I think it’s a total waste of everybody’s time to write about the corruption at the National Legislature. It’s a common saying in Liberia that “if a man’s head caught fire, why ask if his beard got burnt? The Liberian legislature has consistently disappointed the country. But again, one must ask, “how did these legislators get to the Capitol? Well…, they were voted for by the very same Liberian people, simple! Whenever the average Liberian voter is given an opportunity to vote, (s)he most often makes a bad choice. Remember the Charles Taylor’s election (“Taylor killed my ma; he killed my pa, but I will vote for him”?). Utterly ridiculous, nonsensical, but beware of the average Liberia voter. Remember also, Senator Prince Johnson, a sitting Senator and former warlord, was among others, sanctioned in December of 2021 by the Americans for the “pay-for-play” funding scheme, in which the votes of Nimba were “in play” for government ministries and organizations posts – for personal enrichment – as the “pay.” The Americans “read” the whole “show”, and just utter one word: ENOUGH. In the words of the US/OFAC, Prince Johnson also “offered the sale of votes in multiple Liberian elections in exchange for money”. So, these OFAC sanctions, in essence, is game on.

It is truly a sad thing to say, but so true, that the typical Liberian voter is the reason why many warlords, fraudsters and hustlers get to the National Legislature. The Liberian populace are, accordingly, not victims, but accomplices to this perennial corruption at the National Legislature. Looking ahead, the Americans saw no hope in the coming election (2023) – going by the voting record of average Liberian. Since there is no other legal way for them to say don’t vote for CDC in 2023, they must do so indirectly – by targeted sanctions against those who they think represent the worse-case scenario. So, ultimately, while sanctions may fall short of “due process” universal legal standard, but, when dealing with a “failed state”, a “rogue regime” and/or a “banana republic”, as the Americans would say, sanctions are that “drastic medicine” that is certainly needed to cure the “drastic sore” of corruption plaguing Liberia.

 

By Wonder Koryenen Freeman, CFCS, LLM, MBA. WK Freeman is a Liberian professional, a trade & investment attorney, forensic accountant, and financial crimes expert, currently residing in New York, USA. He’s passionate about economic justice, accountable governance, rule of law and economic development. He can be reached at wonderrkfreeman@gmail.com.

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