‘Tweah, Others Lack Constitutional Grounds To Dismiss Indictment Case – Prosecution Argues By: Yassah J Wright

The Prosecution team through the Ministry of Justice, has also filed a returns in the motion to dismiss the correction case before Samuel D. Tweah, former Minister of Finance and Development Planning, Cllr. Nyenati Tuan, former Acting Minister of Justice, Stanley S. Ford, former Director General of Financial Intelligence, D. Moses P. Cooper, former Controller Financial Intelligence Unit and Jefferson Karmoh, former National Security Adviser of President George M. Weah. The Prosecution said defendants’ entire motion presents factual issues and lacks the substances that constitute the grounds for Motion to Dismiss the Indictment, same is a fit subject for dismissal. Prosecution said that Tweah, Tuan, Ford, Karmoh and Cooper Motion lack the condition precedent for the dismissal of an indictment. The Government lawyers argued that Chapter 16, subsection 16.7 of “our Criminal Procedure law of Liberia, clearly says that in order to dismiss an indictment there must be defects in the institution of the prosecution or in the indictment other than that it fails to show jurisdiction in the court over the subject matter or to charge an offense.” They stated that in the instant case, Criminal Court “C” has jurisdiction over theft related matters and the offenses, Economic Sabotage, theft and or illegal disbursement of public money, Theft of Property Criminal Facilitation and Criminal Conspiracy were properly charged against the Tweah, Tuan, Ford, Karmoh, and Cooper, in these proceedings.  Hence, the reasons stated by the defendants to dismiss this indictment will not lie because this court has subject matter jurisdiction over the matter and the offenses of Economic Sabotage, Theft of Property and Criminal Conspiracy were properly charged. That as to the assertion contained in counts eight (8) to nine (9) of Movants’ Motion, that the charges contained in the indictment are deficient, constitutionally infirm and violated the statutory and executive immunity principles and that of the trustee of the secrecy clause of the National Security Reform and intelligence Act of 2011. Prosecution says and avers that said assertion is false and misleading, and therefore, incorporates count nine (9) of its Resistance to defendants motion to dismiss the indictment.  They indicated further that defendants are not absorbed from criminal prosecution where a crime was committed. The counts eight (8) and nine (9) are just alluding to the fact that Tweah , Tuan, Ford, Karmoh and Cooper did do and commit the crimes as charged in the indictment, but shielding themselves under the immunity and secrecy clauses of the National Security Reform

And intelligence Act of 2011. That as to count 10 of defendants Motion, in which Tweah , Tuan, Ford, Karmoh and Cooper, contend that as former members of the National Security Council of Liberia, they cannot under any circumstances, be compelled to divulge information about the activities of the NSC; and that Criminal court “C” cannot exercise subject matter jurisdiction over them consistent with Chapter 11.2, sub-section A, B, C of the Civil Procedure Law of Liberia. The Prosecution noted that the same is not true, as a matter of their practice and procedure, this provision of the Civil Procedure law is not applicable in the given circumstance.

 Further to the above, Prosecution says that defendants Motion lacks the condition precedent for the dismissal of an indictment. Chapter 16, subsection 16.7 of our Criminal Procedure law of Liberia, clearly says that in order to dismiss an indictment there must be defects in the institution of the prosecution or in the indictment other than that it fails to show jurisdiction in the court over the subject matter or to charge an offense. In the instant case, Criminal Court “C” has jurisdiction over theft related matters and the offenses, Economic Sabotage (theft and or illegal disbursement of public money), Theft of Property Criminal Facilitation and Criminal Conspiracy were properly charged against the Movants in these proceedings.  Accordingly, the reasons stated by those defendants to dismiss this indictment will not lie because this court has subject matter jurisdiction over the matter and the offenses of Economic Sabotage, Theft of Property and Criminal Conspiracy were properly charged. Prosecution told the Court to denied any and all issues of both law and facts that are not specifically traversed in this Resistance. Prosecution argued as to Count One (1) to Four (4) of defendants motion, said counts present no traversable

issues and that the said counts are mere narrative or recital of the factual issue in these proceedings. That, as to Count five (5) of Tweah, Tuan, Ford, Karmoh and Cooper Motion regarding the National Security Reform and Intelligence Act of 2011, Approved August 31, 2011 and published by authority of the Ministry of Foreign Affairs, Republic of Liberia, and subsequently printed into handbill on September 8, 2011 no traversable issues as such is a recital of factual issues. They noted that Counts six (6) to seven (7) defendants Motion, that they as agents and advisors to the President and the National Security Council, exercised discretionary authority in matters critical to national security and governance and are prohibited from making any disclosure of information, Respondent says and avers that same is untrue and misleading when it comes to financial transaction of the National Security Council of Liberia. Section 11 captioned Financial states in part that…”The Secretary shall also have the authority to set up and maintain its independent procurement, and accounting system”. Prosecution lament that the accounts of the NSC shall be audited annually or as the circumstances may require by an  assigned auditor of the General Auditing Commission. Further to the above, Section 2 captioned: “Security institutions as recognized under the National Security architecture paragraph (b) of the National Security Reform and intelligence Act of 2011 says that: b. This is Act shall apply to all statutory law enforcement agencies: the Liberia National Police including the National police Training Academy; the Bureau of Corrections and Rehabilitation; the Bureau of Immigration and Naturalization; the Drug Enforcement Agency; the Bureau of Customs and Excise; the National Fire Service; the Motor Vehicle Bureau; the National Security Agency and the Special Security Services (now replaced with the Executive Protection Service in the act. An Act of Legislative shall regulate the functions and divisions of each of these agencies and such other agencies or offices as may be established for national security and public safety. Prosecution says that there is nowhere in this Act that mention the name of the Financial Intelligence Agency to be part of the National Security Council, and as such, its admission was illegal and only intended to siphoned funds that should have benefited the Liberian people. They stated that to count six (6) of their Resistance and traversing counts six (6) up to and including count seven (7) of defendants Motion. The Prosecution said in open court that, assuming without admitting that activities and actions carried out by members of the National Security Council are prohibited by law; and that in the performance of said actions, Movants herein committed a crime, they should not be subjected to criminal investigation, and if, established that they did do and commit said act, they should not also be prosecuted? The answer is in the negative. In the instant case, Tweah , Tuan, Ford, Karmoh and Cooper, cannot benefit from the so called Immunity clause and or secrecy clause. Hence, defendants Motion to dismiss the indictment on the basis that they are prohibited from disclosing security information should be ignored and denied. Further to the above, all of the issues raised in counts six (6) to seven (7), are all issues of facts and it must be determined by the trier of facts or the judge de facto, and therefore, should not be the basis for the Movants to move the court to dismiss the indictment. Chapter 16, Subsection 16.7 of the Criminal Procedure Law of Liberia, Captioned “Motion to dismiss raising defenses and objections before trial.” paragraph 4, says that: “Hearing of motion. A motion to dismiss made before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. Prosecution said an issue of fact shall be tried by a jury if a jury trial required by the constitution or by statute. All other issues of fact shall be determined at a hearing before the court with or without a jury or on affidavits. Prosecution narrated that Tweah, Tuan, Ford, Karmoh, and Cooper,  motion to dismiss the indictment, all of the issues raised, are all factual issues and therefore, must be presented to the trier of facts or the judge de facto to make a determination during the trial of the case. In Prosecution returns, they stated that the entire motion is a fit subject for dismissal, because the defendants have already pleaded to the indictment by joining issues with the State.  Chapter 16, subsections 16.7 of the Criminal Procedure Law of Liberia, Captioned “Motion to dismiss raising defenses and objections before trial. They pointed out that the motion to dismiss shall be made before plea is entered, but the court may permit it to be made within a reasonable time thereafter.

Prosecution says in keeping with statutory provision referenced above, and for the purpose of determining whether or not, the Movants are entitle to benefit from a motion to dismiss an indictment they have pleaded to? Respondent submits and says that the Statute is unequivocally clear by using the mandatory word “Shall”, meaning, the defendants were under obligation to dave filed their so called motion to dismiss the indictment prior to their pleas.  Prosecution maintains that the defendants surfer waiver and lashes, and therefore, they cannot cure said defects, especially so, when they themselves have taken one step beyond their pleas by invoking their right to jury trial. Hence, motion to dismiss the indictment will not lie, and the entire motion should be denied. The government lawyers further told the Court to deny, dismiss and quash defendants motion to dismiss the Indictment.