What some members of the public failed to notice and some still pretend to ignore is that the Defense Team was composed of some of the best capable and erudite jurists in Liberia; and even as he sat on the “Prisoner’s Dock”, Counsellor Varney Sherman, himself one of the most accomplished and successful lawyers of this country, was consulting and guiding the Defense Team.
This was a trial that was well-orchestrated and perhaps choreographed as if it were a movie. The Defendants and the Defense Team had so tireless and assiduously prepared themselves for this trial and were so confident that the State did not have the quality of evidence to prove them guilty beyond reasonable doubt that they allowed the Prosecution’s evidence from the first trial of 2017 to be made a part of this second trial of 2019, when they could have objected because those witnesses who testified in 2017, in persons of Mr. Marc Kollie and Mr. Blamo Kofa, were and are still available in Liberia. The Defense also accepted the Supreme Court’s earlier decision that all documents which the Prosecution submitted into evidence, whether hearsay or not, whether improperly obtained or not, and whether they had any relevance or evidentiary value or not, should be admitted into evidence for the Prosecution. And so what did the Prosecution do?
The Prosecution even had admitted into evidence written denials of some of the Defendants; the Prosecution had admitted into evidence documents purported to be written by persons who were never brought to testify and to be confronted by the Defendants, as is required by Article 21(h) of The Constitution, which provides in part that: “In all criminal cases the accused shall have the right … to confront witnesses against him…”. The Defense was conducted with class, organization and coordination; the like of which has never before been experienced in Liberia.
Article 21(h) of The Constitution also provides that the accused “… shall be presumed innocent until the contrary is proved beyond a reasonable doubt”. This provision of The Constitution is also found in the Criminal Procedure Law at Section 2.1, which reads: “A defendant in a criminal action is presumed innocent until the contrary is proved; and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.”
And Liberia borrowed this law from the United States, which in turn borrowed it from the United Kingdom, adopted by the United Kingdom as far back as the great Magna Carta – the English Charter that King John granted to the barons in 1215 and that Henry III and Edward I later confirmed.
On the basis of this law, the strategy that some defense teams use is to take advantage of the prosecution’s evidence and thereby show that the prosecution did not prove the guilt of the defendant beyond a reasonable doubt and so the defense does not usually allow the defendant to take the stand to testify on his own behalf. In this case tried by Judge Gbeneweleh, not only did the Defense Team undermine the Prosecution’s evidence by showing that their evidence was not of a “beyond reasonable doubt” quality but the Defense Team also adduced overwhelming evidence at the trial which exonerated the Defendants in this case.
The first significant strategy employed by the Defense Team is that they waived trial by a jury, which is their right pursuant to Section 20.1, Subsection 1 of the Criminal Procedure Law. Clearly, the Defendants did not want their fate to be in the hands of people who might not understand and appreciate the complex legal issues and the huge evidence that this case entailed. Some of the Defendants even expressed the concern that a jury could have been manipulated but they were confident that Judge Gbeneweleh would not undermine his hard-earned reputation, not for anything, certainly not for the “YANKEE DOLLAR”.
The second significant strategy the Defense employed was to undermine the evidence submitted by the Prosecution, which evidence was contradictory in so many parts; and by doing so, the Defense instilled fear in the twenty-seven (27) foreign and local witnesses listed by the Prosecution, to the extent that the chief investigator for the Prosecution, Mr. Aaron Aboah, refused to come and testify for the Prosecution. He was eventually forced by a court subpoena to appear to testify and he reluctantly appeared. No other Liberian on the Prosecution’s witness list appeared; none of the many foreigners on the Prosecution’s witness list, not even the Global Witness people, appeared to testify. The absence of witnesses for the Prosecution, all by itself, undermined their case.
On the cross examination of the first two (2) witnesses for the Prosecution (in persons of Marc Kollie and Blamo Kofa), the Defense showed that their testimonies were hearsay; they relied on whatever was written by Global Witness in The Deceivers; they had not even compared the draft of the PPCC Law which President Sirleaf sent to the Legislature by her letter dated August 5, 2010 with the final PPCC Law which the Legislature enacted in September 2010 to determine whether this Section/Article 75 that the accused were charged for inserting into the draft when it was at the Legislature was true or not.
The two witnesses had not interviewed any person at the PPCC or the Ministry of Lands, Mines and Energy, the two main agencies involved in the drafting of the law, to form the basis of testimonies; they had not interviewed any of alleged principal players, such as Mr. Heine Van Niekerk and Mr. Klaus Piprek, even though the Special Presidential Taskforce Report of December 2016 said they did.
None of the documents, allegedly obtained from Global Witness in England or from Sable Mining’s executives in South Africa, which were admitted into evidence, was authenticated as required by the 1961 Hague Convention; and therefore the evidentiary value thereof was questionable. Even the Spreadsheet that this entire case against the Defendants depended on was full of contradictions. For example, this Spreadsheet said that it ended on 30 June 2010 and yet it had four (4) entries for July 2010 and four entries for August 2010. Who would have convicted the Defendants on such contradictory accounting information, such flimsy evidence? Certainly not Judge Gbeneweleh; not even for the ‘YANKEE DOLLAR”!
The third significant strategy employed by the Defendant is to overwhelmingly show that they never had the intent, motive or opportunity to commit the crimes for which they were indicted. With respect to the charge of Economic Sabotage, the Defense showed that none of the elements of that crime was shown, the most important of which are: (i) public money was involved; (ii) counterfeiting was involved; (iii) forgery was involved; and (iv) bad check was involved. Why then did the Prosecution indict the Defendants for commission of Economic Sabotage?
The Defense produced evidence to show that the famous Section/Article 75 has its genesis from the incompatibility of the 2000 Minerals and Mining Law and the 2005 PPCC Act, which incompatibility is that the earlier law provides for anyone with the technical expertise and finance to obtain an exploration license for mineral deposit, which could lead to a mineral development agreement; while the latter law provides that all licenses shall be granted only after a competitive tender.
To allow exploration of “greenfield” mineral deposits (that is mineral deposits with insufficient geological information), with the existence of international experts funded by the European Union and USAID PPCC Regulation No. 002 was promulgated in August 2007, which allowed for exploration licenses on the basis that the first application will be assessed first (“first come first assessed”) – an universal best practice process for award of exploration licenses. Thereafter, another expert of Ghanaian origin, again with finances from USAID, was hired to study and propose the harmonization of the 2000 Minerals and Mining Law and the 2005 PPCC Act and it is his October 2008 Report, which recommended the amendment and restatement of the PPCC Law to include, among other things, this concept of “Non-Bidding Area” as a process for acquisition of mineral rights in Liberia.
By December 2009, the draft of the amendment and restatement of the PPCC Law was completed. This entire history is recalled in the 2007, 2008 and 2009 Annual Reports of the PPCC; which documents were testified to and admitted into evidence. The working draft of the amendment and restatement of the PPCC Law even listed the names of each international expert who suggested a new provision of that new law and the concept of a “Non-Bidding Area” is mentioned nine (9) times in that working draft document. All of these documents, which were in existence before 2010, were testified to and admitted into evidence in light of the fact that even the Prosecution admitted that Sable Mining did not come to Liberia until late February 2010.
How then can bribes be paid for the insertion of a provision of law in late 2010, which was already part of the working draft of the amendment and restatement of the PPCC Law in 2009 and which remained unchanged in the final draft of the amendment and restatement of the PPCC Law, which President Sirleaf submitted to the Legislature in August 2010? Judge Gbeneweleh could not see the absence of motive and intent, supported by the evidence of the process of the amendment and restatement of the law and the drafts of that law and find the Defendants guilty of bribery to insert Section/Article 75 in the new law while it was pending before the Legislature.
The evidence submitted by the Defense did not stop there; it even showed: (i) that Wologizi is not a “prized iron ore deposit” as alleged by Global Witness since several major companies (including BHP Billiton, the world largest iron ore mining company), beginning from the 1970s up to the 2000s had conducted exploration works on Wologizi and abandoned it; (ii) that an international geotechnical company had conducted evaluation of Wologizi in 2009 and recommended in a Report of May 2009 that notwithstanding the limited data on Wologizi it should be submitted for competitive tender; (iii) that President Sirleaf’s Cabinet had decided in early 2010 (before Sable Mining came to Liberia) to put out Wologizi for a competitive tender.
So, there could not have been any motive for Sable Mining to pay bribes in 2010 to Liberians, especially so that Sable Mining was the 11th company in line for an exploration license had the “Non-Bidding Area” process for acquisition of its mineral deposits had been employed by the Liberian Government to grant mineral rights over Wologizi to anybody.
Judge Gbeneweleh could not “buy” the flimsy evidence submitted by the Prosecution in the face of this overwhelming evidence based on the oral testimonies of witnesses such as the former Executive Director of the PPCC, the former Director of Geological Surveys and Assistant Minister at the Ministry of Lands, Mines and Energy, and the Chief Clerk of the House of Representatives. The forty-one (41) pieces of documentary evidence, most of which were official documents created prior to Sable Mining coming to Liberia, overwhelmed the contradictory documents and irrelevant documents which the Prosecution submitted into evidence.
For a better understanding of this case, read the Defense’s Summary of Argument and Legal Memorandum submitted to the Court on July 22, 2019, which had been uploaded on this newspaper’s website here; and you should read Judge Gbeneweleh’s Final Judgment, which has also been uploaded on this newspaper’s website. After you have read it, think back about the caliber of persons who had been indicted and the reputation and experience of their lawyers – some of the best that Liberia has ever had; and you will conclude that the Judgment could not have been anything else but “NOT GUILTY”.
Finally, ask yourself why President Sirleaf, after Global Witness’ May 2016 accusation against the eminent Liberians that they inserted Section/Article 75 into the PPCC Law while it was pending before the Legislature for enactment, have that provision removed before she left office in January 2018? The answer is obvious.
President Sirleaf compared the draft of the law she sent to the Legislature and the enacted law that was sent to her to sign and she discovered that Section/Article 75, with its provisions on “Non-Bidding Area” as a new process for acquisition of mineral rights in Liberia, was in the draft law she sent to the Legislature in August 2010 and no change was made to it by the Legislature when it was enacted into law. And guess what! In his Final Judgment, Judge Gbeneweleh said that he made the same comparison and discovered the same thing; and this is one of the reasons why he adjudged the Defendants ‘NOT GUILTY”.