Home EditorialGuest Analysis Why All Criminal Charges Are Dropped Against Alexander B. Cummings and Others “Without Prejudice to the State”

Why All Criminal Charges Are Dropped Against Alexander B. Cummings and Others “Without Prejudice to the State”

by newsmanager

Comments and Analysis by Cllr. Sayma Syrenius Cephus

The trilateral constitutional power vested in the Honorable Supreme Court of Liberia under Article 2 of the 1986 Constitution to review, declare and interpret any laws, treaties, statutes, decrees, customs and regulations deemed repugnant and have same declared unconstitutional or illegal, has binding force and effect on all authorities and persons throughout the Republic.

The Supreme Court, consistent with its review and interpretative powers, has accordingly declared section 8.5(2) of the CPP Framework document, although not a legislative enactment, illegal and void ab initio. This review and interpretive judgment, although contentiously debatable academically, by any stretch of imagination, is, and however becomes the law of the land and has inarguably binding force and effect on all and sundry unless the said judgment is recalled by the court itself.

Pursuant to the Supreme Court’s interpretation, and being a Liberian citizen who has practiced and continues to practice before this court of last resort, I find it absolutely difficult if not impossible to delude myself of the fact that when the court speaks on any issue of law whether directly or indirectly, as in the case of Alexander B. Cummings, every other major or auxiliary issue appertaining thereto becomes legally shallow or moot and somewhat difficult if not impossible to litigate.

That said, the excitement and the will power to vigorously prosecute the Cummings’ case and ensure that justice, whether “CONVICTION or ACQUITTAL” is achieved, have strangely fallen on ice. Therefore, I am constrained to highlight the compelling need of calling a spade a spade, end the trial and drop any and all criminal charges against defendants Alexander B. Cummings and his lieutenants WITHOUT PREJUDICE TO THE STATE and WITH THE RIGHT TO RE-FILE WHERE APPLICABLE. In so doing, let me refresh and drill your mind through some of the actions in court for the last five (5) months in prosecuting a “misdemeanor” and why such a decision has become an ALTERNATIVE to serve as a form of a respite rather than an absolute relief. During the trial, I strangely noticed what appears to be an unnecessary worn-out contest between two conflicting words being used by the CPP leaders in their debates over the alleged original and disputed framework document all bearing the date of May 19, 2020. For instance, the original Collaborating Political Parties (CPP) framework according to former constitutional Vice President Joseph Nyumah Boakai in an answer to a question on the cross contained the word “RESIGN”, which according to him was an option given to a party desirous of quitting the CPP for cause; whereas the disputed version of the same CPP framework document also bearing the date of May 19, 2020, contains the word “WITHDRAWAL” which, according to section 8.5(2) of the selfsame document can only be invoked by a party after 2024.

Be that as it may, the actual conflict is not about the May 19, 2020 date or the signing procedure of the document by zoom, instead, it is about or is between the word: “RESIGN” which the former Vice President has alluded to; and the word: “WITHDRAWAL” which is contained in section 8.5(2) of the disputed framework document filed with the NEC by Alexander B. Cummings and his disciples. These two words by all accounts, are profoundly synonymous in context, usage and practice and are intended to achieve one objective—to leave, depart or go out. Neither of these two words is defined in Article 1 of the definition of both the Amended and disputed framework documents. However, from the context in which the phrase: “A constituent party desiring to withdraw…” is used in sections 8.5(ii) and 8.5(2) of both the amended and disputed framework documents respectively, it is obvious to easily infer that the word “withdrawal”, as used, means “to leave, depart or quit”. However, for clarity purposes we revert to the online Merriam-Webster Dictionary which defines the word “ Resign” as: “to quit, abdicate, abnegate, cede, relinquish, renounce, step aside from, step down from or surrender,” and the same the online Merriam Webster dictionary also defines” withdrawal” as: “removal, taking away, cancellation, abolition, termination, or the action of ceasing to participate in an activity.”

Analyzing these two words in proper perspective, one is legally constrained take a cue from the wise and venerated opinion of Her Honor, Madame Justice SIE-A- NYENE YUOH of the Honorable Supreme Court of Liberia in the case: “The Management of Liberia Coca Cola Bottling comfort Natt Ezekiel Doweh”, decided November 2018. In that opinion, the Supreme Court said: “The statutory constructional principle of “in pari materia” which means “of the same matter, on the same subject”, or two laws relating to the same subject or provisions, having the same general purpose should be construed together as though they constituted one law, or, one provision. They must be governed by one system, one spirit and one policy” Also see Commercial Fisheries Corporation v. PUK Yang 355LLR 534, 546(1998); 7 LLR358 (1942); Abrahasm v. Cooper 21LLR157 (1972).

Further, Justice Yuoh relying on the holding in the case: “Corniff’s Art Printery v. William H. Kennedy 30LLR38, 42 (1982)” said: “In interpreting and construing statutes, the general rule applied by courts of common law jurisdiction is that where two legislative acts are repugnant to or are in conflict with each other, the last one enacted will govern, control or prevail and supersede and impliedly repeal the earlier act although it contains no repealing clause.”

So let us agree that the two words “resign” and “withdrawal” used in both the Amended and dispute framework documents are by extension, constitute the statutory texts of the framers of the CPP framework document, whether original, amended or disputed, and the latter(withdrawal) precedes the former(resign), and therefore becomes the most recent of the two conflicting words, the obvious interpretation is that the latter (withdrawal) is undoubtedly construed to supersede, and impliedly repeals the former (resign) because both are governed under one system, one spirit of interpretation or intent and have one common objective— to quit, leave, depart or discontinue. It is important to say however that as a consequence of the disputed version of the CPP framework document containing the word “withdrawal”, two of the constituent political parties, namely (1) the All Liberian Party (ALP) and the former ruling Unity Party (UP) have exercised their rights to dissociate, and have accordingly ceased to be members of the CPP under the presumption that their actions fall within the “resignation clause” of the original framework document of May 19, 2020 which Vice President Joseph Nyumah Boakai has testified to, confirmed and reconfirmed and marked by court. The termination of their memberships within the CPP, whether such decision or action was or is taken under the “resignation or withdrawal clause” has the same profound meaning and effect— quit, leave or depart, and both the ALP and UP, have accordingly “resigned or “withdrew” from the CPP. The constitutional right of the freedom of association as provided for under Article 17 of the 1986 Constitution states: “All persons, at all times, in an orderly and peaceable manner, shall have the right to assemble and consult upon the common good, to instruct their representatives, to petition the Government or other functionaries for the redress of grievances and to associate fully with others or refuse to associate in political parties, trade unions and other organizations.” The catchphrase is “…and to associate fully with others or refuse to associate in political parties, trade unions and other organizations.” The intent of the framers of the 1986 Constitution is that a Liberian citizen has the right to associate fully with other institutions or any group or group of individuals as he/she deems fit, or he/she has the right to refuse to associate with any group be it political parties, trade unions and other organizations.

What is missing however, is that the 1986 Constitution does not provide for “termination or resignation or withdrawal of a membership” in any institution, once a citizen exercises the “right to associate fully with others”. The exercise of a resignation or withdrawal right in any contractual agreement is not constitutional, although Article 25 of the 1986 Constitution protects contractual rights in so far as it relates to the “right to associate fully with others” or refuse to associate…”. Therefore, it is my opinion that the right to withdraw or resign from any contractual agreement in the Liberian jurisprudence is not and cannot be a constitutional right; instead; it is a statutory right which must be exercised and invoked in the form of a breach of contract, and prosecuted by means of a dissolution or cancelation proceeding, although fraud which the object of the current proceedings is both a civil and a criminal act under Liberian law, which is why the Republic of Liberia reserves the unfettered constitutional right as guarantor of law and public order to imitate formal criminal charges against anyone not necessarily on the basis of the gravity of the crime said to have been committed but in the violation of the law, especially when such violation or breach whether misdemeanor or infraction threatens or has the potential to threaten the sanctity of public order and the rule of law.

This leads us to one major question, which is determinative of this matter and that is whether or not defendant Alexander B. Cummings and his disciples actually forged the CPP Framework document to the detriment of the other three constituent political parties by allegedly inserting the word “withdrawal” and deleting the word “resign” which was contained in the original framework document of May 19, 2020 and therefore their alleged conduct threatens or has the potential to threaten public order and the rule of law? The answer to this question is a resounding “YES” in part and a categorical “NO” in part. We answer yes, in part, because there’s a compelling evidence to prove that the CPP framework document was forged. The fraudulent conduct is patently shown in a number of articles of the CPP framework document. For instance, Article 9.1 titled: “Governance Structure” and its subsections of the lawyers’ Amended Framework Document are written and listed in Roman numbers with the prefix “Alliance” to each of the leadership structure as follows:

i. Alliance National Assembly (ANA)
ii. Alliance National Advisory Council (ANAC)
iii. Alliance National Executive (ANEC); and
iv. Alliance National Secretariat (ANS)

Whereas, in the purported CPP framework document filed with the NEC said to contain the exact recommendations made by the lawyers, Cummings and his disciples changed the numbering system from Roman numbers to 1, 2, 3 and so forth, and unilaterally, without any express approval or ratification by the other constituent political parties, willfully and deliberately and intentionally deleted the prefix “Alliance” and listed the CPP leadership structure as follows:

  1. National Assembly (NA)
  2. National Advisory Council (NAC)
  3. National Executive Committee (NEC); and
  4. National Secretariat (NS)

These unilateral changes made to the CPP leadership structure by Co-defendant Alexander B. Cummings and his lieutenants did not only amount to deliberately altering, forging and defacing the leadership structure recommended by the lawyers but also contravene Article 15, section 15.1 titled: “Initiation of Amendment” of Cummings own framework document filed with the NEC, which expressly states: “A proposal for amendment to the framework document shall be initiated by written proposal by any of the constituent political party of the CPP to the Executive Committee of the Alliance no later than six months prior to the sitting of the National Assembly. Two-thirds of the National Assembly must pass a resolution adoption the [proposed amendment which shall take effect upon publication within a month after its adoption”.

Moreover, a careful review of the records in the case and testimonies of witnesses show that there existed no evidence of any written proposal from any of the constituent political parties seeking the amendment of Article 9 of the lawyers’ version of the CPP document; no evidence to demonstrate that two-thirds of National Assembly required, ever met, deliberated and thereafter passed a resolution adopting the changes made to Article 9 of the lawyers’ version prior to filing the selfsame document with the National Elections Commission(NEC).

Even more comical is the that the defendants filed with the National Elections Commission (NEC) a photocopy of a purported framework document rather than the original document signed on May 19, 2020. It is interesting to note that the filing and notarization dates are not the same — the filing date says July 10, 2020 and the notary date is July 14, 2020. Co-defendant Cummings initialed(signed) every page of another purported framework document filed with the Magisterial Court when he was a subpoena witness of the state but the CPP document that was subpoenaed by the prosecution from the NEC and marked by court as “Exhibit P/14” contains no such initials. Also, Cummings and his legal team could not controvert or debunk claims made by state witnesses who testified to the effect that every decision taken by the CPP had to, or needed to be resolved and ratified by the each of the constituent political parties to have binding force and effect.

Besides, there is a stark difference in numbering, contents, contexts and wordings between and amongst the original framework document of May 19, 2020, the amended framework document of April 25, 2020 and the purported framework document that was filed with the NEC. For instance, in the original framework document of May 19, 2020, there’s no withdrawal clause and the question of “resignation” was unresolved, whereas in the lawyers amended version, specifically section 8.5(ii) contains the word “withdrawal” but Cummings and his team changed and replaced section 8.5(ii) with section 8.5(2) without the express approval of the other parties. These changes are prevalent with several other sections and provisions of the CPP document to the detriment of other parties. Let it be noted that the object of the express approval requirement regime of the other constituent political parties, means any changes made or set to be made in the CPP document requires validation and ratification by all parties but this was not done when several provisions of the framework document cited inter alia, were unilaterally altered and their prefixes obliterated to suit Cummings’ interest.

Also, we answer NEGATIVE in part, on grounds that the object and purpose of the alleged forgery and criminal conspiracy, which according to the ALP and UP was intended to place Co-defendant Alexander B. Cummings on top of the CPP’s ticket as its Presidential Candidate ahead of Mr. Benoni Urey and former Vice President Joseph N. Boakai, did not occur; meaning, his alleged intent to outsmart the other political leaders did not materialize, hence, the alleged injury resulting from the commission of the crimes which the Republic of Liberia is said to have suffered, in my opinion is incredibly ALOOF and seemingly inconsequential in terms of impact but totally unacceptable in terms of breach or violation of the law and public order. Whatever the case, I am yet to, or I fail to see how a constituent political party or its political leader has been directly or indirectly injured or harmed or has been deprived of any legal rights to put forth or become a presidential candidate in 2023 after leaving the CPP.

The obvious victim in this case is the Republic of Liberia and the only injury the Republic has suffered, is Cummings’ alleged blatant attempt, although never materialized, to outflank the rest of the other constituent political parties and thereby create a state of public unrest, chaos and pandemonium in a seemingly egoistic and infantile misdemeanor to undermine the true competitive character and nature of modern Liberian democracy which calls for frank and brutal exchanges of debates of issues, of ideas without violence. Aware of what could have become a surging political inferno that was developing within the leadership of the CPP, and fearing the attending consequences, the Republic of Liberia through the Ministry of Justice had to act, and did act, and shall decisively apply the law for public safety and order where necessary, now or in the future, to avert any public unrest and restore sanity to all political parties freely exercising their democratic rights no matter whose interest is involved.

The Republic of Liberia contends further that injury in any contractual agreement is considered as any harm that a person suffers physically or psychologically as a consequence of the acts or omission of another. It is therefore difficult if not absolutely inconceivable for me to actually conjecture or to arrive at any obvious conclusion, the actual damage to, if any, that a constituent political party or its political leader has suffered having already left the CPP on account of a disputed or fraudulent framework document filed with the NEC by Alexander B. Cummings and his disciples. The reason is that experts in fraud law have argued, and one cannot help but agree with them that for fraud to occur there must be three conditions that must be satisfied, namely (1) the perpetrator has to provide a false statement as a material fact; (2) the perpetrator had to have known that the statement was untrue; and (3) the perpetrator had to have intended to deceive the victim. In the instant case, Cummings and his team provided false document containing the purported “withdrawal clause” and they knew or had reason to know that the inclusion of the “withdrawal clause” which was never validated and ratified, was false and misleading, yet, they took no further action to remedy the situation despite public outcry from ALP and UP. Such a conduct amounted to palpable deception, and a brazen misrepresentation of the intent of the parties, but above and beyond all of these allegations, there is no physical or psychological injury done to the ALP and the UP having already invoked their right to “resign” as provided for, under the original CPP framework document signed on May 19, 2020. Therefore, the extent of injury the Republic of Liberia has suffered for the alteration or forging of the CPP framework document, which in my opinion is a private contract between private parties is “remote” and does not rise to the level of being “egregious” to warrant further prosecution of this matter. The supposedly private prosecutor on whose behalf the Liberian state is prosecuting this matter is neither the ALP nor the UP, instead, it is imaginary, hence, it is difficult to decipher the raison d’être, why Cummings and others should still be in the dock when the moving parties (ALP and UP) are not signatories to, and have out rightly rejected the disputed framework document that was filed with the NEC. Liberian law in my opinion does not prosecute anyone for a crime whose victim is prospective and in which there is no injury or damage done. However, the Ministry of Justice as the prosecuting arm of the government and the guarantor of law and public order could not stand idly by or play spectator to emotional exchanges and name-calling, claims and counterclaims that attended the alleged forgery and criminal conspiracy saga in the CPP. The Ministry had to had to act judiciously to avert what was gradually becoming a state of pandemonium and public unrest within the CPP to serve as a form of deterrence. Now that the Republic of Liberia has full appreciation of the facts, circumstances and the quantum of evidence, it is constrained to take a legal recourse to the law which says: “The ethical and primary duty of a prosecutor is not to convict, but to afford the defendant charged with crime a fair and impartial trial. Fairness of trial must comprehend justness of the laws under which the defendant answers; and the justness of those laws must be measured against the defendant’s rights under the Constitution.” See case: in re C. Abayomi Cassell 14 LLR 391 (1961).

That being the law extant, it is our considered opinion to terminate this cause of action and herewith enter a NOLLE PROSEQUI in favor of the defendants Alexander B. Cummings, Senator Daniel Netaahn and Aloysius Weah Toe but WITHOUT PREJUDICE TO THE STATE, meaning the Republic of Liberia does reserve right to re-file where necessary.

Thanks.

Cllr. Sayma Julius Syrenius Cephus, Esq.
Solicitor-General & Chief Prosecutor/RL

Related Posts

Leave a Comment