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Assessing the Legal merit(s) of the Solicitor General of Liberia’s “Clarifications on The Alexander B. Cummings’ Case”

BY Atty. Isaac W. Jackson, Jr.

Introduction

On Sunday, January 9, 2022, or thereabouts, Cllr. Sayma Syrenius Cephus, Solicitor General (“SG”) of Liberia, circulated a communication captioned “Clarifications On The Alexander B. Cummings’ Case” in which he sought to explain the role of his office and the entire Ministry of Justice in commencing and prosecuting the ongoing case against Mr. Alexander B. Cummings (“ABC”) and others.  In his communication, the SG shamelessly denied that “the complaint and the arrest order were initiated by the Government of Liberia”.

According to the SG, the Stipendiary Magistrate at the Monrovia Magisterial Court acted in keeping with Section 10.6 of the Criminal Procedure Law in accepting the underlying criminal complaint directly from the private prosecutor (All Liberian Party (ALP) by and through its National Chairman, Mr. Theodore Momo), and decided to commence the criminal proceeding by the issuance of the writ of arrest without the involvement of, or any representation by the Ministry of Justice. In particular, the SG asserted that:

1.         The Magistrate, “having…arrived at the conclusion there was a probable cause and a sound legal basis to be seized of this matter… proceeded to issue the writ of arrest against Mr. Alexander B. Cummings based on the complaint of the All Liberia Party (ALP)”;

2.         The Magistrate Court “operates under the judicial branch of the Liberian government”, meaning it is independent of the Ministry of Justice;

3.         “…for coordination purposes, and as required by law”, the Magistrate “alerted the Government of Liberia through the Ministry of Justice…about the writ of arrest and the decision to arrest Mr. Cummings.”

4.         It is, therefore “absolutely ludicrous for anyone to suggest that the complaint and the arrest order were initiated by the Government having cited the law extant.”

Analysis

The SG is wrong. His communication is without any basis whatsoever in law, practice and precedence.

Under Liberian law, a crime is committed against the public at large, and the prosecution thereof is, therefore, by the Republic of Liberia.  Accordingly, the Republic of Liberia is a necessary and principal party in every criminal proceeding. Every criminal proceeding must, therefore (i) be in the name of the Republic, and (ii) be initiated and prosecuted by the Republic.

Rule 23 of the Rules and Regulations for the Governance of the Magistrate and Traffic Courts (“Rules of Magistrate Courts) provide that every warrant of arrest “must be issued in the name of the City or Corporation AND the Republic of Liberia” while Rule 33 of the same Rules of Magistrate Courts reaffirms the exclusive authority of the Ministry of Justice in respect of prosecution in the following language:

“No lawyer shall be allowed to prosecute in the Magisterial Courts in the name of the State or City Corporation, except by permission of the City Solicitor, who shall first inform the court of his desire to have said lawyer as his assistant.”

As further summarized below, the Liberian Law is very clear as to (i) who is responsible to initiate prosecution; and (ii) when is prosecution commenced:

1.         Section 22.2 (b) of the New Executive Law states that “it shall be the duty of the Minister of Justice to…institute all legal proceedings necessary for law enforcement”.  

2.         Section 4.7 of the Criminal Procedure Law of Liberia, captioned “When Prosecution is commenced”, states that prosecution shall commence, or “be deemed to have commenced on the occurrence of any of the following, whichever first occurs:

  • The finding of an indictment against the defendant;
  • The issuance of a warrant of arrest, a summons, or notice to appear”.

3.         The Memorandum of Understanding Between the Liberia National Police and the Prosecution Service Respecting the Conduct of Criminal Investigations and Prosecutions Coordination, signed on December 17, 2011, and still in force, provides that “at no point shall the prosecution commence without a police charge sheet which shall serve as the vehicle for probable cause. The only exception for the filing of a complaint without a police charge is where there is no police presence and the possibility of accessing the police is remote”.

4.         Section 14.2 states that “Petit larceny and all petty offenses shall be prosecuted by the complaint. All other crimes shall be prosecuted by indictment” while Section 14.4 states that “a complaint made orally to a magistrate or justice of the peace shall be reduced to writing on the face of the writ by the clerk of the court” and said “complaint shall be sworn to by the complainant. “

5.         Section 1.5(a) of the Criminal Procedure Law defines a “prosecuting attorney” as “the Minister of Justice, Solicitor General, or an Assistant Minister of Justice or another attorney of the Ministry of Justice who assumes the duty of prosecuting a particular case, or the County, Territorial, or District attorney in charge of a prosecution.”

6.         The practice is that it is the prosecuting attorney who makes the application for the issuance of the warrant of arrest because (i) the warrant of arrest is issued in the name of the state, (ii) the warrant must contain a distinct and intelligible complaint sufficient to sustain the charge(s), and (iii) the issuance of the warrant of arrest serves as the commencement of a criminal case.

The foregoing laws, practices and procedures support the following conclusions:

1.         The Ministry of Justice has exclusive authority to prosecute criminal cases, including to commence or institute all criminal proceedings;

2.         The issuance of a warrant or writ of arrest is an executive function that commences prosecution in all cases where the indictment is not required;

3.         A magisterial court, like all other courts in Liberia, cannot be a party to commencing or instituting a criminal proceeding and subsequently sit as a “neutral referee” to conduct trial of the case;

4.         Even if the Magistrate were to do so, the Ministry of Justice would be remiss not to question (i) such usurpation of its authority and (ii) the act of the Magistrate as a breach of Article 3 of the Liberian Constitution, which says “no person holding office in one of these branches shall hold in OR EXERCISE any of the powers assigned to either of the two other branches”.

5.         A complaint sufficient to support the issuance of a writ of arrest is required to be supported by a sworn affidavit, usually executed by a law enforcement officer or a prosecuting attorney; there is no evidence that the private prosecutors executed a sworn affidavit.

6. There is no Police Charge Sheet because there is no evidence that the police ever investigated this matter.

Conclusion

The contentions of the SG, as stated in his January 9, 2022 Communication, are factually and legally incorrect. It is the product of a deliberate plan to deceive. The SG knows, or ought to know, about the exclusive authority granted to his office and that of the MOJ regarding the prosecution of all alleged crimes. He ought to also be aware that a magistrate, like all judges, cannot exercise executive functions, such as commencing prosecution or being responsible to assert a party’s claim or charge.https://thenewdawnliberia.com/cummings-trial-court-rejects-televised-trial-request/

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* The author, BSc., LL.B, LL.M, former Liberia’s Permanent Representative to the International Maritime Organization (IMO). Also served with Liberia’s Ministry of Information, Culture and Tourism from 2008 as Assistant and later Deputy Minister for Press & Public Affairs. Jackson defends a political career which arises from his days as a student activist at the University of Liberia

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