In Sable Mining Case: Varney Sherman, Others Not Guilty

In Sable Mining Case: Varney Sherman, Others Not Guilty

The Assigned Circuit Judge Presiding, Peter W. Gbeneweleh, on Tuesday, July 30, 2019 ruled that Co-Defendants G. Varney Sherman, E. C. B Jones, Jr. Christopher Onanuga, J. Alex Tyler, Richard Tolbert, Eugene Shannon, Morris Saytumah and Willie Belleh are not guilty of the offenses charged in the indictment.

Delivering his ruling in the landmark case at a jammed pack Criminal Court “C”, Judge Gbeneweleh further ruled that the Co-defendants are hereby charged from answering the multiple offenses charged in the indictment without any delay, and their constitutional and statutory rights are hereby restored with immediate effect.

Criminal Court “C” is located at the Temple of Justice on Capitol Hill, Monrovia.

The Assigned Circuit Judge Presiding also adjudged that their criminal appearance bonds are hereby restored to them by the Sheriff of the Court.

However, the counsel for prosecution excepted to the ruling and gave notice to the court that they shall take due advantage of the law, and respectfully submitted.

The court, in response, noted the exception and added that matter suspended.

It can be recalled that in its May 2016 publication on the internet, entitled “The Deceivers”, Global Witness accused Senator G. Varney Sherman and other former and current Liberian Government officials and a private businessman of influencing the insertion of a Section 75 in the draft PPCC Law while it was pending before the Legislature for enactment.

Global Witness said that Sable Mining spent US$950,000.00 to bribe Liberian Government officials and this private businessman to insert this Section 75 in the law to provide for “Non-Bidding Area” as a new process for acquiring mineral rights in Liberia, the objective being to give Sable Mining a competitive edge to get an agreement with the Liberian Government to exploit the iron deposit of the Wologizi Mountain in Lofa County.

A few days after the publication of “The Deceivers”, Former President Ellen Johnson-Sirleaf commissioned a Special Presidential Taskforce to investigate into the accusations made by Global Witness and in December 2016, the Special Presidential Taskforce issued a Report which confirmed the accusations.

Several former and current Liberian Government officials and a private businessman (identified as a fixer) were indicted for commission of the crimes of Economic Sabotage, Bribery, Criminal Solicitation, Criminal Facilitation and Criminal Conspiracy.

They are: Senator Varney Sherman (former Chairman of the then ruling Unity Party); Mr. Alex Tyler, former Speaker of the House of Representatives; Dr. Eugene Shannon, former Minister of Lands, Mines and Energy; Mr. E.C.B. Jones, former Deputy Minister of the Ministry of Lands, Mines and Energy; Senator Morris Saytumah (former Minister of State for Finance, Economic and Legal Affairs; Professor Willie Belleh, former Chairman of the Public Procurement and Concession Commission; and Richard Tolbert, former Chairman of the National Investment Commission. Mr. Christopher Onanuga, owner of a media company called CT Communications Corporation is the private businessman.

But all of the defendants in the case pleaded not guilty to the charges.

The case was tried under the gavel of Judge Yamie Gbeisay but was taken on appeal before the Supreme Court on a Writ of Certiorari.

A Writ of Certiorari is an order a higher court issues to review the decisions and proceedings of a lower court to determine if there were any irregularities, while the Supreme Court is the final arbiter of justice in the country.

Government prosecutors had prayed for the Writ in the wake of Judge Gbeisay's denial of their request to have controversial emails and spreadsheets marked permanently included in their oral and documentary presentations.

However, the case was suspended in October of 2017 by the Supreme Court in order to focus on cases that would have arisen from elections related irregularities during the October 10 Presidential and Representative Elections.

"We are going to concentrate on cases that would come from the ongoing electoral process for now, but not criminal matters," the Court said on October 3, 2017.

The Supreme Court's decision came as a result of government prosecutors' petition for a Writ of Certiorari against Judge Gbeisay's denial of the prosecution's request to have controversial emails and spreadsheets marked permanently included in their oral and documentary presentations.

During the October 3 hearing before the Supreme Court, lead lawyers for the prosecution in persons of Cllr. Theophilus C. Gould and Jonathan Fonati Koffa were absent. Cllr. Gould had since passed away while prosecutor Jonathan Fonati Koffa had resigned his post to contest legislative elections in Grand Kru County in which he was elected as a representative.

At the time, a spokeswoman for Sable Mining said the company could not comment on the accusations made in the indictment, which covered a period including 2010 and 2011.

Previously Sable Mining said the Global Witness report appeared to be based on "unreliable" testimony from three former business partners.

Accordingly, of the US$950,000.00, the indictment alleges that US$450,000.00 was given by Sable Mining to Senator Sherman and he used that to bribe Mr. Alex Tyler, Mr. Richard Tolbert, Mr. Morris Saytumah, Prof. Willie Belleh, the Unity Party (political donation) and Mr. Henry Fahnbulleh, who was formerly Secretary General of the Unity Party.

However, the Unity Party and Mr. Henry Fahnbulleh were not indicted. The indictment alleged that the other US$500,000.00 was given directly to Dr. Eugene Shannon and Mr. E.C.B. Jones in a vanity briefcase.

The summations were made by the Prosecution and the Defense on Monday, July 22, 2019 and the Judge assigned the Final Judgment for Tuesday, July 30, 2019 at 2:00 pm.

In its summation, the Prosecution argued that it produced evidence which proves beyond all reasonable doubt that the Defendants committed the crimes of Economic Sabotage, Bribery, Criminal Facilitation, Criminal Solicitation and Criminal Conspiracy and so asked Judge Gbeneweleh to adjudge the Defendants guilty as charged. The main basis of the Prosecution’s case against the Defendants are:

(1) a Spreadsheet provided by Global Witness, which Global Witness identified in “The Deceivers” as “leaked documents” and a thread of emails allegedly exchanged between Senator Sherman and Mr. Heine van Niekerk, Sable Mining’s representative in Liberia;

(2) an alleged statement of Mr. Klaus Piprek, Sable Mining’s Country Director for Liberia, who was allegedly present when the US$500,000.00 was allegedly delivered to Dr. Shannon and Mr. Jones at Dr. Shannon’s home.

The Defense, on the other hand, argued that the Prosecution did not produce an iota of evidence which proves beyond all reasonable doubt that the Defendants committed the crimes for which they were indicted. In response to the Economic Sabotage crime, the Defense argued that the indictment itself did not say anything about the elements of Economic Sabotage, which elements involve misuse or misapplication of public money, forgery or counterfeiting. To this argument, the Prosecution did not give any response.

In response to the Bribery charge, the Defense again said that the Prosecution did not produce a scintilla of evidence to prove beyond reasonable doubt that the Defendants committed the crime of Bribery. The Defense argued that to commit Bribery there should be motive, intent and opportunity and they argued that none of these elements were presented by the Prosecution at the trial.

The Defense said it produced cogent evidence through oral testimonies of witnesses and official documents that the clauses of Section 75 of the amended and restated 2010 PPCC Act, which carry “Non-Bidding Area” as a new process for the acquisition of mineral rights in Liberia were originally conceived in August 2007 when the PPCC, with the assistance of a foreign expert financed by the European Union, promulgated Regulation No. 002, which was intended to address the situation where Liberia did not have sufficient information on any mineral deposit to prepare papers and put it out for a competitive bid as required by the 2005 PPCC Act. The Defense continued its argument by submitting that later in 2008, with funding from USAID, a Mr. Fui Tsikata, a Ghanaian mineral expert, came to Liberia, conducted a study on the harmonization of the Minerals and Mining Law and the 2005 PPCC Act and it is he, in his Report of October 2008, who endorsed Regulation No. 002 and recommended a complete amendment of the 2005 PPCC Law.

The process for reviewing and redrafting the 2005 PPCC Act to arrive at the draft of the amended and restated 2010 PPCC Act continued through 2009 when the PPCC issued a working draft of the amendment and restatement of that law in December 2009. The entire process was assisted by international experts funded by Liberia’s development partners at the time; and the Defense submitted that this evidence is confirmed by the 2007, 2008 and 2009 PPCC Annual Reports. The Defense submitted that this Section 75, which the indictment says was inserted in the draft 2010 PPCC Act through the influence of the Defendants while it was before the Legislature for enactment, is in this working draft of December 2009 and Regulation No. 002 is stated two (2) times, while “Non-Bidding Area” is stated nine (9) times.

The Defense also submitted that since both sides agree that Sable Mining came to Liberia in late February 2010, then Sable Mining could not have given them and did not give them money to include this Section 75 in the law.

There was no motive, no intent and no opportunity to commit the crime of Bribery. FOR WHAT, ASKED CLLR. JONES, ONE OF COUNSELs FOR THE DEFENSE. The Defense also submitted through oral testimonies from the Clerk of the House of Representatives, a Mr. Joseph Neufville, former Executive Director of the PPCC and a Mr. Emmanuel Sherman, a former Assistant Minister of the Ministry of Lands, Mines and Energy and now a Deputy Minister at the Ministry of Mines and Energy, said that Section 75 was in the draft of the law that President Sirleaf sent to the Legislature in August 2010 and it was not changed by the Legislature when it enacted the draft into law in September 2010. Mr. Neufville and Mr. Sherman confirmed that international experts proposed the inclusion of “Non-Bidding Area” in Section 75; they drafted the entire amended and restatement of the law; President Sirleaf’s Cabinet accepted it and send it to the Legislature for enactment.

On the basis of this evidence, the Defense submitted to the Judge that none of the Defendants and even Sable Mining had the motive, intent or opportunity to commit the crime of Bribery as the Section 75 and its clauses on “Non-Bidding Area” was in the law before Sable Mining came to Liberia.
As for the Spreadsheet, which the Prosecution relied on, the Defense submitted that it was forged and the evidence of the forgery is that it is a statement of account which says it ended 30 June 2010 and yet has four (4) entries for July 2010 and four (4) entries for August 2010. This accounting inconsistency, says the Defense, clearly undermines the authenticity of that Spreadsheet. It is this 30 June 2010 Spreadsheet which names some of the Defendants as recipients of bribes; but for each entry thereon which names any of the Defendants as a recipient of money, the Defense submitted another Spreadsheet, which they called the actual Spreadsheet, which ends 31 August 2010 and which gives account for each entry as a legitimate business expense for Sable Mining.

As to the alleged delivery of US$500,000.00 to Dr. Shannon or Mr. Jones, both formerly of the Ministry of Lands, Mines and Energy, the foreign witnesses who should have come from to testify to confirm that this huge amount of money was imported to Liberia by Sable Mining and given to Dr. Shannon and Mr. Jones at the home of Dr. Shannon, did not come from South Africa to Liberia to testify at the trial even though they were listed on the Prosecution List of Witnesses. Instead the Prosecution relied on an Affidavit and a written statement, both of which were not authenticated in keeping with the requirements of the Apostille Convention, to which Liberia and South Africa are parties. And for the failure to have the alleged proponents of the documents come and testify at the trial and be cross examined by the Defense, the Defense says that the documents are hearsay evidence, violate the Defendants’ constitutional right to confront witnesses against then and therefore should not be used as evidence to convict them. Also for the failure of the Special Presidential Taskforce to properly authenticate the documents, the Defense submitted that those documents don’t qualify to be used as evidence against them.

As to the other crimes of Criminal Facilitation, Criminal Conspiracy and Criminal Solicitation, the Defense submitted that these are inchoate crimes, which can only be committed if a primary crime has been committed. Since the primary crimes (Economic Sabotage and Bribery) were never committed by the Defendants, these inchoate crimes are a legal nullity, says the Defense. To this submission, the Prosecution did not respond.

To convict a person of committing a crime in Liberia, the law is that the State should present evidence which proves beyond all reasonable doubt that the accused person committed the crime.

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