Judge Gbeisay: "Article 21 (h) of the 1986 Constitution gives me the right as a judge to compel the prosecution to ensure that their principal witness, Heine van Niekerk, the South African, appears in person."
Criminal Court 'C' Judge Yamie Quiqui Gbeisay last Thursday defended his action not to accept prosecution's controversial e-mail and spreadsheet evidence by relying on "Article 21 (h) of the 1986 Constitution of Liberia."
Prosecution claimed that they obtained the documents from Heine van Niekerk, an executive of Sable Mining, a UK based company, at the center of the Global Witness bribery report, when they visited South Africa to have him authenticate the report.
Gbeisay put up his strong constitutional defense while arguing before the Justice in Chambers, Associate Justice Philip A.Z. Banks, of the Supreme Court, where state lawyers complained, to review the judge's action.
Article 21 (h), on which Gbeisay based his case, provides that "no person shall be held to answer for capital offence or an infamous crime except in cases of impeachment arising in the Armed Forces and petty offences, unless upon an indictment by a Grand Jury and in such cases, the accused shall have the right to a speedy, public and impartial trial by a jury of the vicinity."
It also provides that: "Unless such person shall with appropriate understanding expressly waive the right to a jury trial," which the defendants did when they first appeared before the court, thereby making Gbeisay, both judge and jury.
The clause of the article that Gbeisay referred to during his argument, says: "In all criminal cases, the accused shall have the right to be represented by counsel of his choice to confront witnesses against him and to have compulsory process for obtaining witnesses in his favor."
That portion of the constitution, Gbeisay argued, gives him the right as a judge to compel the prosecution to ensure that their principal witness, Heine van Niekerk, whom the government claims leaked the e-mail and spreadsheet information to Global Witness, appears in person to confront the defense team and be made to answer to concerns that the lawyers will raise about his information.
The case before Justice Banks was filed at the behest of the Ministry of Justice (MOJ), the prosecutorial arm of the government, despite the Minister and the Solicitor General's early withdrawal from the matter because of their relationship with some of the defendants, particularly co-defendant Varney Sherman, Sable's Liberian lawyer, which they considered as a "conflict of interest."
However, prosecution resisted Gbeisay's decision, which they are asking Justice Banks to review, though they have initially asked for a 10-day break to give them the opportunity to ensure the appearance of van Niekerk, a plea that was later reduced to seven days by Judge Gbeisay.
Gbeisay also threatened to imprison some of the prosecution lawyers if they failed to keep their promise to ensure that van Niekerk appeared in court at the end of the seven days.
It was at the end of the seven-day period that prosecution asked for a "Writ of Certiorari" to be issued against Gbeisay and the defense team by Banks.
That writ orders a lower court, the Criminal Court 'C,' to deliver its records in a case so that the higher court, the Supreme Court, may review it.
The contention started when prosecution said they obtained the e-mails and spreadsheets as the result of an investigation held with van Niekerk in his native South Africa. As such, said prosecution, it must be marked permanently as a major component of their documentary evidences against several present and past public officials, including Senator Varney Sherman of Grand Cape Mount County, who are being prosecuted for the alleged US$950,000 in bribes they reportedly received from Sable Mining as stated in the Global Witness Report.
They claimed that van Niekerk explained to the investigator that the money was paid for Sherman to bribe other defendants, including former House Speaker Alex Tyler, to change the Public Procurement Concession Commission (PPCC) Act that was before the Legislature to award the Wologizi Mountain in Lofa County to Sable Mining without going through a competitive bidding process.
It was that request Gbeisay refused to accept, pending the arrival of van Niekerk, who is the major participant in the alleged leaked document exchanges with Sherman.