15 January 2014

West Africa: ECOWAS Court Puts Liberia On Hold Over U.S.$500K

Monrovia — The case that won't go away appears to have come back to bite the Government of Liberia. Diplomatic sources have confirmed to FrontPageAfrica that the Nigerian government is expressing dissatisfaction with its West Africa counterparts over the handling of the Valentine Ayika US500,000 case and is leaning toward against supporting the four names put forward by Liberia to sit on the bench of the ECOWAS Court.

Last September, the ECOWAS Court advertised a vacancy for a seat to be occupied by Liberia on its bench, seeking a qualified judge: "By decision taken on July 18, 2013, by the ordinary session of the Authority of Heads of States and Governments of the Economic Community of West African States (ECOWAS), Liberia was allotted a post of Judge of the Community Court of Justice.

In keeping with this decision, the President of Liberia had requested the Chief Justice of the Supreme Court of Liberia, Justice Francis Korkpor to assist in the process leading to the appointment of a Liberian Judge to this position."

The vacancy sought a lawyer of acclaimed competence in international law, especially community law or regional integration law and possessing at least twenty years professional experience and of moral high standing.

FrontPageAfrica has learned that Liberia has put forward four names: Judge Yussif Kaba, Associate Justice Philip A.Z. Banks, Cllr. Pearl Brown Bull and Cllr. Benedict Sarnoh.

Judge Kaba, is currently the presiding judge at the Criminal Court D handling the controversial case of 18 Grand Gedeans accused of plotting mercenary activities in Liberia. Cllr. Sarnoh, is currently the Deputy Minister of Justice for Economic Affairs, Banks, a member of the Supreme Court bench and Cllr. Bull, one of the experienced legal minds in Liberia and one of the framers of the 1986 constitution who also served as a commissioner on the Truth and Reconciliation Commission of Liberia.

She is a renowned defense attorney and legal advocate who recently resigned as chair of the Grievance and Ethics Committee of the Supreme Court and Member, Judiciary Inquiry Commission.

Ironically, Liberia has gone on record as stating that the ECOWAS court has no jurisdiction over it and was of no significance to Liberia's judicial system. Liberia is currently one of the Vice Chairs of the ECOWAS Commission represented by Dr. Toga Gayweah Mckintosh. The issue was resurrected last year when lawyers representing then imprisoned FrontPageAfrica newspaper Editor Rodney D. Sieh threatened to take the matter to the ECOWAS court.

Authorities at both the Ministries of Justice and Information dismissed the idea and remarked that the ECOWAS Court was not an alternative to the Liberian Court. Neither was it supreme to Liberia's Supreme Court, noting that there is no way anyone could take any decision from the Supreme Court to the ECOWAS court.

Lawyers representing FrontpageAfrica clarified that it had no intention to subject the opinion of the Supreme Court to the scrutiny of the ECOWAS Court, but rather their interests was to address what amounted to an alleged violation of human rights by Liberia.

They argued that by maintaining and giving effect to an outdated civil procedural law under which a Liberian Citizen had been sanctioned and which violated the Liberian Constitution and the African Charter on Human and Peoples' Rights, Liberia could be a subject of the jurisdiction of the Court.

According to the instruments of the Court, one of the contentious jurisdiction of the Community Court of Justice states: "The Court has jurisdiction to determine cases of violation of human rights that occur in any member states". Lawyers further argued that the issue of jurisdiction should be left to the Court to decide.

The publication of the vacancy raised questions at the time as to why the government of Liberia would commit itself to a judicial process, it says it has not ratified and whose decision it cannot respect and uphold.

In June 2012, the ECOWAS Court found the Liberian Government liable and ordered to return the amount of US$508,200(FIVE HUNDRED, EIGHT THOUSAND, TWO HUNDRED DOLLARS) to Nigerian national Valentine Ayika, a case in which the Government of Liberia participated and was represented by Legal Counsels.

The ECOWAS court, since acquiring jurisdiction over human rights complaints in 2005, has issued numerous decisions condemning human rights violations by the member states of the Economic Community of West African States including the judgment against Niger for condoning modern forms of slavery, and against Nigeria for impeding support for the right to free basic education for all children.

The ECOWAS also has broad access and standing rules that permit individuals and NGOs to bypass national courts and file suits with the court. Although the court is generally quite careful in the proof it requires of complainants and the remedies it demands of governments, it has not shied from politically-courageous decisions, such as rulings against the Gambia for the torture of journalists, and against Nigeria for failing to regulate multinational companies that have degraded the environment of the oil-rich Niger Delta.

The Court is composed of seven judges appointed by the Authority of Heads of State and Government from a list of up to two persons nominated by each Member State. It received its first case in 2004. This landmark first case (Olajide Afolabi v. Federal Republic of Nigeria) was filed by an individual businessman against the government of Nigeria for a violation of Community law in the closing of the border with Benin.

The Court ruled that under the Protocol only Member States could institute cases. The Court's ruling began a discussion, headed by the Judges themselves, over the need to amend the Protocol to allow for legal and natural persons to have standing before the Court.

Ayika, it can be recalled was It can be recalled that Liberian Drugs Enforcement Agency Agents arrested Mr. Valentine Ayika at the Roberts International Airport in 2006 for not declaring over 500,000 United States Dollars they found strapped to his body. Mr. Ayika, who was subsequently deported from Liberia, sued Liberia at the ECOWAS Court for confiscating his money.

In ruling in favor of Ayika, the Court said while it was true that Mr. Ayika violated the laws of Liberia by not declaring the money before entering the country, it was not proven that he was involved in money laundering. At the time, the Court also ruled that Liberia pay 20,000 United States Dollars to the Plaintiff to cover the cost he incurred during the trial, and return Mr. Ayika's passport which was seized.

Representing the Republic of Liberia, Counselor A. Kanie Wesso accepted the ruling, but informed the Court that the country would take advantage of the Court's Rule of Court to appeal the Judgment.

Article 25 of the Rule of Court A/P1/7/91 provides for an Application for Revision of its decision only if based upon the discovery of new facts unknown to the Court and the Applicant claiming revision, provided that such said facts were not ignored due to negligence. Defense Counsel Mr. Okwy Ejeze described the court's ruling as well researched with profound reasoning, and hoped that the Defendant would heed the judgment and put the matter to rest.

On Tuesday, Cllr. Cyrennius Cephas, lawyer for Mr. Ayika told FrontPageAfrica that his client was aware of the reports of the Nigerian government's intervention, but had not been officially informed.

Cllr. Cephas acknowledged that there have been ongoing discussions between his client and the government of Liberia in hopes of finding an amicable solution to the legal dilemma but that nothing had been finalized.

In December 2013, the Supreme Court of Liberia assigned the Ayika case. Cllr. Cephas represented and argued on behalf of the businessman. Solicitor General Cllr. Betty Lamin Blamo represented and argued on behalf of the Liberian government.

Associate Justice Banks who was minister of Justice when the money was ordered seized, recused himself from the deliberations. Ruling in this case was reserved by the Chief Justice of the Supreme Court.

In the same December, Judges from the ECOWAS Court visited the Supreme Court of Liberia but the subject of their discussion was not made public, although sources confirmed to FPA that a settlement should have been reached on or before the 18 of December, 2013.

Sources, however tell FrontPageAfrica that the key issue stalling the resolution of this matter is that the Ministry of Justice in Liberia was reportedly excluded from the discussions.

Sources closed to the case say, the matter is also being complicated by the fact that the Supreme Court is currently studying the matter, while discussions seeking an amicable resolution is ongoing behind the scene.

Cephas says he understands that both sides are still divided over the method of payment. "My client confirmed that they were supposed to pay the money, but we are confused because it is still being argued before the court. It is also unclear whether how the GoL intends to pay and to whom? Ayika's lawyers or through diplomatic channels.

Cephas says he has heard of a plan for the money be paid to Ayika's lawyers, but that there have been reports in some circles that the Liberian government wants Ayika in Monrovia to receive the money via a ceremony.

Ayika, who won a seat in the Nigerian parliament in 2012, threatened immediately after his victory to complain Liberia to ECOWAS Court over its refusal to return his US$500,000 seized upon his arrival at the Roberts International Airport few years ago.

The Supreme Court of Liberia countered that the judgment by the ECOWAS Court is not binding on the Republic of Liberia. "Accordingly, we hold that the decision of the ECOWAS Community Court of Justice entered against the Republic of Liberia on June 4, 2012 in the Valentine Ayika case is not binding on the Republic of Liberia," Chief Justice Francis S. Korkpor said.

The decision of the Supreme Court of Liberia was promoted by a Bill of Information filed by the Government of Liberia through the Ministry of Justice who was represented through its team of lawyers during the hearing of the case Valentine Ayika verse the Republic of Liberia at the ECOWAS Court of Justice in Nigeria.

In the bill information filed before the Supreme Court, the Government of Liberia stated that the ECOWAS Treaty for the establishment of the ECOWAS Court executed or signed by the former chairman of the National Transitional Government of Liberia does not have any force of law.

The bill also indicated that ECOWAS Treaty not having been ratified by the Liberian Legislature such is not binding on Liberia and does not create any legal enforceable obligations or responsibilities on or for the Republic of Liberia.

Banks, one of those nominated by Liberia was minister at the time of the seizure and is currently an Associate Justice on the Supreme Court bench. Banks at the time defended the use of over half a million United States dollars belonging to Ayika.

Ayika has insisted that the money was tied to his business shipping and rubber interests in Liberia. Ayika has said he has two vessels (MV Valery and MV Princess Nneka) working in Liberia since around 2005.

The two vessels were involved in carrying general goods from Monrovia to Harper and rubber from Harper to Monrovia, pointing out that he had a contract with the Firestone to ferry rubber.

On February 6, 2007, the Attorney General and Minister of Justice of the Federation of Nigeria on February 6, 2007, wrote Banks, who was Minister of Justice and Attorney General of Liberia at the time, requesting the turnover of the seized US$500,000 to the Government of Nigeria.

The letter contradicted Banks' statement at the time that the Nigerian Government approved the use of the money by the Government of Liberia, the Minister of Justice of the Federal Republic of Nigeria, Chief Ojo, {SAN} said, " I reiterate my request for the immediate release of the sum of $508,200 subject of this investigation, as well as other all other relevant documents as the conclusion of the investigation and prosecution of the suspect is now stalled by the absence of these vital exhibits".

Liberia's nomination could be further complicated if each of the nominees are vetted. There are reports that other nominees may have issues that could dent Liberia's chance. Another possible nominee could be Cllr. Benedict Sannoh, a current deputy of the Ministry of Justice who was previously involved in the controversial debate over the status of forces agreement with ECOWAS during the Liberian Civil War.

Judge Yussif Kaba

The head of the Criminal Court D and former head of the The National Association of Trial Judges of Liberia, is currently in the midst of a controversial case involving 19 Grand Gedeans accused of involvement in mercenary activities in neighboring Ivory Coast in 2011. Kaba has been criticized for his handling of the case after he recently denied the motion for acquittal filed by defense lawyers. Lawyers representing the 19 alleged Liberian mercenaries had filed a motion with criminal court "D" recently requesting the court to acquit 9 of the 19 alleged criminals because they were not linked to the commission of the crime of mercenary. But government lawyers resisted the motion on the grounds that the accused were clearly linked to conspiring and carrying out mercenary activities in Ivory Coast that resulted in the destruction of properties and lives including seven UN peacekeepers.

Judge Kaba also drew criticisms over his remarks that the behaviors of the defendants in the ongoing mercenary case pose insecurity to the court and suspended the case for time indefinite. Kaba's comments came in the aftermath of a December 31, 2013 incident during which defendants went on a rampage and took over the court facility, which prompted the Liberia National Police to respond to the scene and put the situation under control. Judge Kaba took a hit in 2010 when Human Rights campaigner Melvin Page led an advocacy for the judge's impeachment, alleging that the Judge rulings at the Civil Law Court are marred with flaws and lack legal justifications.

Cllr. Pearl Brown Bull

Cllr. Bull is one of the experienced legal minds in Liberia. She is one of the framers of the 1986 constitution and serves as a commissioner on the Truth and Reconciliation Commission of Liberia. Bull has been practicing Lawyer with the Bull Law Firm since January 7, 1982.

She studied law at the Louis Arthur Grimes School of Law in Liberia and the University of Quinnipiac Law School, Connecticut, U.S.A, earring a Juries Doctorate (Law) degree. She obtained a Bachelor of Arts degree in Political Science from the University of Liberia (1973) a legal drafter with more than a quarter century of experience in the peace building, woman and human Rights Advocacy and a renowned Liberian Politician.

Commissioner Bull has held many elected and presidential appointed high profile positions, serving in the public and private sectors in Liberia including on several Boards. Red Cross, YMCA, Renaissance Corporation Inc. FORUM. Bull has received several national and International Honors and Recognition.

Philip A.Z. Banks

Associate Justice Banks is a two-time Minister of Justice (1999-2003; Minister of Justice 2007-09) who has worked as a consultant for the Governance Reform Commission; Liberian Law Report.

But it is his handling of the 'illegal' confiscated, and usage of US$500,000 belonging to Nigerian Businessman, and now a Lawmaker, Valentine Ayika, that continues to dog the Associate Justice whose name has been submitted to the ECOWAS Court.

Benedict Sannoh

Benedict is a former instructor at the Louis Arthur Grimes School of Law and currently deputy of the Ministry of Justice. He was previously involved in the controversial debate over the status of forces agreement with ECOWAS during the Liberian Civil War.

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