Liberia: Tweah, Others Seek Executive Immunity in Corruption Case

The defense team representing former Finance Minister Samuel Tweah and his co-defendants have requested the dismissal of the US$500K corruption case against them on the grounds of constitutional concerns. They argue that members of the National Security Council (NSC) are immune from prosecution for actions within the scope of their official duties.

"Members of the National Security Council cannot be prosecuted for actions relating to the core powers of their office, and that they have immunity for their official acts," the defense lawyers said.

The motion to dismiss the case was filed on Monday, February 24, before Judge Roosevelt Willie of Criminal Court 'C' suggests that the charges related to alleged violations of the Financial Intelligence Agency Act of 2022-at which time the defendants allegedly conspired and transferred US$500,000 and L$1,055,152,540 from the Central Bank of Liberia (CBL) through the operational account of the Financial Intelligence Unit (FIU)--should be addressed by the Supreme Court due to the constitutional issues raised.

Tweah together with Cllr. Nyanti Tuan, former Acting Minister of Justice & Acting Chair Joint Security, Stanley Ford, former FIA Director General & member Joint Security Council, and D. Moses P. Cooper, former Comptroller, FIA, conspired, colluded, facilitated and committed the Crime of Economic Sabotage (Fraud on the internal revenue of Liberia; Misuse of Public Money, Property or Record and Theft and/ or illegal disbursement and expenditure of public money).

These alleged acts, the indictment says, was in violation of Chapter 15, Sections 15.80(a)(b)(d), 15.81 (a)(b)(c) and Section 15.82 (a)(b)(e) of the New Penal Law of Liberia, Title 26 of Liberia Codes of Law Revised, a felony of the first degree.

However, the defense team asserts that as agents and advisors to the President and the NSC, the defendants acted within their discretion concerning national security and governance matters. They contend that the case involves activities protected under the National Security Reform Law of 2011, which restricts the disclosure of certain information by NSC members.

The defense further argues that the indictment against the defendants infringes on statutory and executive immunity principles, criminalizes constitutional acts, and risks exposing classified government information.

"As agents and advisors to the President and the National Security Council, the defendants exercised discretionary authority in matters critical to national security and governance. National Security Reform Law (SRI) of 2011 prohibits disclosure of any information that comes to them by virtue of being members of the National Security Council," the lawyers argued in the motion.

According to the motion, in strict compliance with the provision of the enabling aforementioned statutes, defendants, who are former members of the National Security council or personnel acting under direct instruction from authorized members of the National Security Council, cannot, under any circumstances, be compelled to divulge information about the operations of the National Security Council.

The Defense maintains that the judicial review of the National Security Council's actions could breach national security protocols and is not subject to court scrutiny.

According to the defense's legal analysis, the charges against the defendants should be dismissed as the court lacks jurisdiction over the National Security Council's operations. They emphasize that the defendants, as former NSC members, were fulfilling duties guided by the National Security Council Reform and Intelligence Act of 2011, designed to safeguard national security interests.

The government lawyers have yet to respond to the defense's motion for dismissal as the legal process unfolds.

According to the motion, the defendants cannot be compelled by any court to divulge information relating to their functions as members of the National Security Council.

"The indictment, which charges the defendants with economic sabotage, theft, and related offenses, is legally deficient, constitutionally infirm, and violative of well-established statutory and executive immunity principles," the motion noted.

Furthermore, the motion argues, the indictment improperly seeks to criminalize constitutional, national security, statutory, and discretionary acts performed by officials while in the discharge of their official responsibilities to further national security interest of the Republic.

It adds: "As such, any such judicial process, as now being contemplated by this Indictment, to review or ascertain the actions or activities of members of the National Security Council potentially risks exposing or disclosing classified and confidential government communications and intelligence."

Such disclosure, the motion noted, would be a direct contravention of the National Security Council Act.

They also argued that under the National Security Reformed and Intelligence Act of 2011 as found in Section 3, among others provide that: "Every member, personnel or employee of the National Security Council shall be deemed a trustee of the secrets of the Republic and when entering upon the duties of the council shall be, in case of members, sworn by the chair and in case of the personnel and employees, by the secretary, not to divulge any information which has come to his or knowledge by reason of such membership or employment with the council except as required in the course of duty."

It continues: "Any violation of this oath shall subject the offender(s) to a fine of One Hundred Thousand Liberian Dollars or up to ten years imprisonment or both. The oath shall be binding and enforceable on every member, personnel or employee of the council for a period of twenty years after severance of his or her relationship with the council."

Accordingly, they argue "this Honorable Court cannot exercise subject matter jurisdiction over the statutory operation of the National Security Council pursuant to Chapter 11.2 subsection A, B, C of the Civil Procedure Law of the Liberian Code of Laws Revised same being incorporated into Criminal Procedure Law."

They further argued that: "Motion to Dismiss will be granted as a matter of law where the court lacks trial jurisdiction over the subject matter, the person or the thing in litigation."

They also argued that defendants were all members of the National Security Council (NSC) of Liberia, who were responsible for carrying out the functions of the National Security Council of Liberia, chaired by the President of Liberia, consistent with the National Security Council Reform and Intelligence Act of 2011.

They further argued that the Act of 2011 was established for the purpose of protecting the national security interest of the country. "Specifically, Liberia's National Security Council (NSC) is the highest advisory and decisional body on national security matters. It is responsible for formulating policies, coordinating security agencies, and ensuring the protection of the state, and directing national security actions."

Judge Willie has set a hearing for Wednesday to decide whether the Supreme Court will determine if the conduct in question violated the Act of 2011. This decision could lead to further delays in the case, although the trial was initially scheduled to start on Monday but is currently on hold.

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