1 September, 2013, Virginia, United States of America. The Liberia Institute of Public Integrity (LIPI) has initiated discussion with a team of lawyers in the United States, and in Liberia to commence series of civil legal actions against certain persons of the Liberian government who have been accused and implicated in corruption practices in Liberia. Far too long, Liberians and international partners have tried and insisted that the current Government of Liberia institute legal actions against officials and private individuals who have defrauded the taxpayers of Liberia.
It seems rather clear that the Government has failed to live up to its obligation to protect public resources from fraud, waste and abuse. As clearly expressed in the infamous "secret recording" between the Defense Minister of Liberia and the former Managing Director of the Liberia Airport Authority, the Defense Minister accused the current President of Liberia of harboring corrupt officials, and condoning high level corrupt offenses and financial misconduct by officials of her administration. Further, in Dr. J. Chris Toe versus FrontpageAfrica, former Agriculture Minister J. Chris Toe’s main defense in his libel suit was that he has not been indicted/prosecuted for corruption, although there exist official audit reports implicating former Minister Toe in corruption.
All of these revelations come at a time when the number one issue facing Liberia then, now and in the future is officially sanctioned corruption, which has further pushed Liberians into abject poverty. There are more than 70 official audit reports, 15 anti-corruption reports and a growing number of international reports, and presidentially sanctioned Commission reports, with all pointing to corruption and misuse/misapplication of public funds. Thus far, as indicated in the latest State Department Human Rights report, no legal action has been taken to hold accountable officials that have undermined the public trust.
For too long, Liberians have lived at the whims and caprices of Presidents, waiting for presidential action on corruption and other vices in Liberia. Clearly, the time has come for Liberians and all Liberian groups to think outside of the box and take "citizens’ actions" where the President has failed to execute laws in an objective and fair manner to hold accountable and prosecute corrupt officials. The current administration is compromised and cannot be counted upon to prosecute itself. Liberians have to creatively explore both local and international options to fight corruption.
In Liberia, LIPI is beginning this process by filing citizen suits against Dr. J. Chris Toe, Mrs. Medina Wesseh and other government officials to seek restitution of public monies alleged to have been derived, acquired or taken in violation of public trust.
In the United States, LIPI intends to, on behalf of the citizens of Liberia, file civil suits of constructive trust and accounting against Dr. Chris Toe, Mr. Robert Sirleaf, and other corrupt Liberian government officials who hold United States citizenship or green cards for their role in the misuse of public finances in Liberia.
Furthermore, LIPI is currently exploring legal options with the investigative and forensic divisions of U.S Internal Revenue Service (IRS); Foreign and Corrupt Practices Act (FCPA) Coordinator of the US Department of Justice – Criminal Division and Fraud Section; and Office of Foreign Assets Control (OFAC), US Department of the Treasury to investigate the financial dealings of Liberian government officials with US passports and green cards. LIPI is also exploring options with the International Affairs Division, US General Accountability Office (GAO) to investigate the financial dealings involving the custody and use of U.S. taxpayers funds in Liberia.
Legal Basis for Actions
Under Liberian administrative procedures and criminal justice system, the Government can expose, dismiss and/or prosecute a public official, if he/she steals or misuses public money or property of record ; spends public money or property other than as authorized by law ; takes and or receives bribe . Furthermore, the accused, if convicted is made to restitute the full amount of money and or property stolen .
To initiate such proceedings, the Ministry of Justice has the power to prosecute, or defend all suits and proceedings in the courts in which the Republic of Liberia or its officer is a party, and institute all legal proceedings necessary for law enforcement . However considering the failure and/or unwillingness of the Government of Liberia to punish public officials accused of corruption, as well as the huge social impact of unaddressed corruption, private citizens can initiate citizens suits against corrupt officials under Common Law practice in Liberia.
If requested, the law provides that Civil Law Court allows private citizens to file civil suits under 15 LCL revised, Ch. 3 §40 (a) and (b) against public officials accused of corruption and bribery by the GAC audit report, LACC reports and other officially sanctioned reports. In Liberia, when the statutes and existing decisions of Liberian courts are inadequate or non-existent to address any issue of law and rules, case law from courts in England and United States of America, are, when applicable considered Liberian laws. In several States in America, under the False Claims Act, a citizen or citizens can bring whistleblower lawsuits on behalf of the government by filing a qui tam action.
At present there is no statute or case law that authorizes or prohibits private citizen suits against corrupt public officials in their individual capacity. However, there are several cases in English and American case law that permit citizen suits against corrupt public officials or any person who has defrauded the Government. It is therefore highly likely that the Civil Law Court in Liberia will take precedence from English and American Judges, and allow citizens to sue using American and English Common Law.
If requested, the law provides that the Civil Law Court allows private citizens and/or tax payers to file civil suits for restitution on behalf of all citizens to recover money from public officials accused by the GAC audit reports, LACC reports and other officially sanctioned reports. Legally, citizens can sue wayward officials for breaching their fiduciary duty of trust and loyalty to the public, for violating basic principles of agency, or for disregarding Constitutional requirements of honest service and statutory prohibitions against corrupt practices. Public office in Liberia is a public trust, and public officials are fiduciaries for the people they serve.
Because of their position, public officials are held to a high standard of conduct, which must always be guided by rules of good faith, fidelity, and integrity. In Liberia, the 1986 Constitution prohibits public officials (elected or appointed) from abuse of power as the misuse of government resources, and all other corrupt practices" ; engaging in acts against public policy, and shall not demand and receive any other perquisites, emoluments or benefits, directly or indirectly, on account of any duty required by Government.
The relationship between a Government and public officials is like the relationship between a principal and his agent. If an agent breaches his fiduciary duty by using his position to gain a secret profit, he is liable to the principal for the income and gain on property acquired as a consequence of the breach . Under the agency theory, public officials are agents of the principal (the Government) elected by the people, and are therefore amenable to the people whom they serve. A private citizen raising issue of public right is a real party in interest.
Citizens have the right to complain about public officials' acts when they maintain that the officials are violating their fiduciary duties to the public . By seeking relief from a court against a public official who is accused of corruption, private citizens in effect are requesting courts to force corrupt officials to remit the money wrongfully acquired to the public treasury as a form of restitution for the public . Concerned citizens have therefore been permitted to sue public officials to enforce the ethical standards that govern public officials. Therefore, citizens or taxpayers should file civil suits against public officials independent of criminal actions by the Government on theories of public trust and agency law.
Legal action in Liberia and the United States
The prevailing distrust of corrupt public officials in Liberia is good opportunity for private citizens and taxpayers to keep a tight eye on public officials. Suing public officials is a powerful weapon to use against wayward officials. Such suits could take on the Common Law suits of “action to impose constructive trust” in the case of stolen money or monies derived or acquired unlawfully, and “action for accounting” in the case of bribed officials and misuse of public funds. A constructive trust is a trust, by operation of law, which is imposed against one who has obtained the possession to property which he has no equitable right to enjoy.
LIPI intends to sue wayward officials for breaching their fiduciary duty of trust and loyalty to the public, for violating basic principles of agency, or for disregarding statutory prohibitions against corrupt practices; and seek restitution of monies wrongfully obtained by public officials. Because high standard of conduct is imposed upon public officials, they are subject to civil suits for failing to maintain those standards.
A public office in Liberia is a public trust and public officials are fiduciary for the people of Liberia whom they serve. Because of their position, public officials are held to a high standard of conduct guided by good faith, fidelity, and integrity.
Liberian laws recognize this duty of public officials. Art. 5 of the Liberian Constitution (1986) forbids amongst other things, “abuses of power as the misuse of government resources, and all other corrupt practices". Art. 90 (a) and (b) prohibit public officials (elected or appointed) from engaging in acts against public policy, and shall not demand and receive any other perquisites, emoluments or benefits, directly or indirectly, on account of any duty required by Government.
For instance, Mrs. Medina Wesseh served as Director in the cabinet of Ellen Johnson Sirleaf. During this time, Mrs. Wesseh abused and used her office and position to influence and execute business deals in which she personally derived and acquired monetary benefits in violation of her fiduciary duty as a public official. For example, according to Independent Commission headed by Dr. Elwood Dunn, Mrs. Medina Wesseh misused public office and abused her official title in her private cement transaction. The Dunn Commission’s report implicated Medina Wesseh in "Conflict of Interest," a form of corruption prohibited by Article 90 of the 1986 Constitution.
Mrs. Wesseh is also implicated in the Private Use Permit (PUP), where she abused her official position within Government to form a company to obtain a concession. Her admission that she later sold her shares does not excuse the fact that she abused the public trust and materially benefited from the transaction. Mrs. Medina Wesseh is also linked to a company, in which she and her husband founded to take contract from the County Development Fund in River Gee County. The company defrauded the people of Liberia in River Gee and denied economic opportunity to the people of Liberia in River Gee County.
For Dr. J. Chris Toe, he is clearly implicated in the audit reports of the Ministry of Agriculture, and the Guthrie Plantation. He is also implicated in the mismanagement of funds from the Guinea Worm and the FAO contribution to Liberia. For Mr. Robert Sirleaf, the Chevron $10 million social contribution and the millions spent through his several Foundations will form the basis of the initial lawsuit. Other officials will follow as LIPI prepared more cases.
A New Jersey Supreme Court reasoned that Common Law imposes duties upon public officials: “As fiduciaries and trustees of the public, they are under an inescapable obligation to serve the public with highest fidelity. In discharging the duties of their office they are required to … display good faith, honesty and integrity; … must be impervious to corrupting influences and they must transact their business frankly and openly in the light of public scrutiny so that the public may know and be able to judge them and their work fairly.”
The relationship between the government and public is similar to relationship between a principal and his agent. “Neither an officer nor an agent can gain personal profits by neglect of a duty or by an abuse of discretion”. Williams v. State ex rel. Morrison, 83 Ariz. 34, 37, 315 P.2d 981, 983 (1957).”If an agent breaches his fiduciary duty by using his position to gain a secret profit, he is liable to the principal for the income and gain on property acquired as a consequence of the breach. Anderson Cotton Mills v. Royal Mfg. Co., 221 N.C. 500, 509, 20 S.E.2d 818, 823 (1942).
The US Supreme Court emphasized that a public official must abide by the laws of agency in accounting to his principal (the government) for all secret profits received. United States v. Carter , 217 U.S. 286 (1910). The court continues: “The larger interest of public justice will not tolerate, under any circumstances, that a public official shall retain any profit or advantage which he may realize through the acquirement of an interest in conflict with his fidelity as an agent. If he takes any gift, gratuity or benefit in violation of his duty, or acquires any interest adverse to his principal without a full disclosure, it is a betrayal of his trust and a breach of confidence, and he must account to his principal for all he has received.” Id. at 306; see also Savage v. Mayer, 33 Cal. 2d 548, 551, 203 P.2d 9, 10 (1949). If an agent receives a gratuity extended for the purpose of influencing the execution of his agency, that gratuity must also be turned over to his principal. 17 217 U.S. at 308.
So long as an agent purports to act in his capacity as agent, any property which he receives belongs to his principal, and the agent is duty-bound to deliver such property to his principal. England v. Doyle, 281 F.2d 304, 307 (9th Cir. 1960); Savage v. Mayer, 33 Cal. 2d 548, 551, 203 P.2d 9, 10 (1949). This rule applies to all property, regardless of whether the receipt of the property is directly related to the purpose of the agency. 21  A.C. 507. An agent is bound to a high degree of good faith toward his principal; he cannot avail himself of any advantage his position may give him to profit at his principal's expense. Conklin v. Joseph C. Hofgesang Sand Co., 407 F. Supp. 1090, 1095-96 (W.D. Ky. 1975) (citing Byer v. International Paper Co., 314 F.2d 831, 833 (10th Cir. 1963.
Further, LIPI will take advantage of anti-corruption and anti-impunity legislations to mount legal and investigative actions, expanding the fight to curtail corruption globally. Since nearly all high-ranking officials and key persons in Liberia hold US Passports/Green card, LIPI will take advantage of the following laws in the United States:
LIPI has contacted the IRS to forward to the IRS the names and details of some corrupt Liberian Government officials with US passports or green cards, including President Ellen Johnson Sirleaf and her son Robert Sirleaf, for their continuous flouting of US tax laws. Section 61 of the Internal Revenue Code (IRC 61, 26 U.S.C. § 61) defines "gross income," the starting point for determining which items of income are taxable for federal income tax purposes in the United States. Section 61 states that "except as otherwise provided in this subtitle gross income means all income from whatever source derived".
The United States Supreme Court has interpreted this to mean that Congress intended to express its full power to tax incomes to the extent that such taxation is permitted under Article I, Section 8, Clause 1 (the Taxing and Spending Clause) of the Constitution of the United States and under the Constitution's Sixteenth Amendment. Therefore, under IRS Rules, income illegally obtained through drug trafficking, corruption etc must be disclosed.
Each of the laws, indicated in the preceding paragraphs, provides real opportunity for LIPI to work with the relevant US authorities to tackle the issue of corruption in Liberia. U.S. Government has a precedent in prosecuting its citizens and green card holders involved in human rights abuses and corrupt practices around the world including Liberia.
Current discussion with U.S. authorities show clearly a willingness to fight corruption globally using existing U.S. laws, as corruption undermines the happiness of people all over the world by denying them needed financial resources to improve their living condition. Corruption also undermines global peace, as through corrupt practices terrorists and drug traffickers can clean their money. This is why LIPI is taking the first step to explore these creative ways to fight corruption in Liberia, since the current administration has failed to police itself and fight corruption.
ISSUED BY LIPI, SEPTEMBER 1, 2013.
TRADEVCO v Mathies et al, 39 LLR 637, LRSC 32 (1999); MPC et al v National Election
Commission et al, LRSC 1 (2011); Houssenini v Jawhary, LRSC 44 (2005); RL v Leadership of LNBA
et al, 40 LLR 635, LRSC 26 (2001; RL v Leadership of LNBA et al, 40 LLR 635, LRSC 26 (2001);
Fallah v RL, LRSC 14 (2011); Arnous et al v Firestone Plantations Co., LRSC 8; 37 LLR 785 (1995)
Katz v. Brandon, 156 Conn. 521, 535, 245 A.2d 579, 587 (1968); County of Cook v.Barrett, 36 Ill. App. 3d 623, 627, 344 N.E.2d 540, 545 (1975).
. Bonelli v. State, 71 Cal. App. 3d 459, 469, 139 Cal. Rptr. 486, 493 (1977); County of Cook v. Barrett, 36 Ill. App. 3d 623, 633, 344 N.E.2d 540, 547 (1975); City of Boston v. Santosuosso, 298 Mass. 175, 180, 10 N.E.2d 271, 275 (1937); City of Minneapolis v. Canterbury, 122 Minn. 301, 307, 142 N.W. 812, 814 (1913); Reading v. Attorney General,  A.C. 507, 514-15; 55 COLUM. L. REV. 1085, 1086 (1955).
generally Katz v. Brandon, 156 Conn. 521, 535, 245 A.2d 579, 587 (1968); County of Cook v.
Barrett, 36 Ill. App. 3d 623, 627, 344 N.E.2d 540, 545 (1975); Fairbank v. Stratton, 14 Ill. 2d 307, 311, 152
N.E.2d 569, 571 (1958); City of Boston v. Dolan, 298 Mass. 346, 354, 10 N.E.2d 275, 281 (1937); City of
Boston v. Santosuosso, 298 Mass. 175, 181, 10 N.E.2d 271, 275 (1937);