The Magistrate of the Monrovia City Court has adjourned without deciding on the legality of prosecutors’ request to subpoena WhatsApp to testify in the criminal trial of Alexander Cummings and two of his partisans.
Magistrate Jallah’ ruling, which is expected anytime soon, comes after the defendants’ lawyers and prosecutors argued extensively about the legality of the subpoena request — now leaving the magistrate to make the ultimate decision either to grant or deny.
The Jallah ruling will have to take into consideration if Liberia has territorial jurisdiction over WhatsApp whose parent company Meta, formerly Facebook, will not easily grant the court mandate if in favor of the government without a court battle.
Meta has a record of resisting attempts to turn over chats or testify in cases involving its end-to-end encrypted messaging platform.
The state via the prosecutors, led by solicitor General Counselor Syrenius Cephus, argued that the request for a subpoena for WhatsApp, is for the platform’s parent company, Meta, to come to Liberia and testify about the conversations and text messages exchanges that took place on the platform.
The exchanges in question are among the host of documentary evidence the prosecution is relying on for the prosecution of Cummings and co-defendants.
Cllr. Cephus said at present, the government is not able to obtain the social media conversations and text messages exchanges, which took place between July 2 and July 19, 2020, at which time the defendants allegedly altered the CPP framework document — as it is missing from the series of documentary evidence that was marked and subsequently confirmed by prosecutors, the defendants legal team and Magistrate Jallah and placed on the court record.
He said since he could not locate the documents, it was necessary by the law to request the service provider, that is the WhatsApp, to appear and testify and produce the controversial document that formed the basis of the Cummings trial.
However, Cllr. Cephus’ subpoena request comes after Attorney Adolphus Karnuah, on March 30, admitted that prosecutors omitted several portions of the social media and text message exchanges, which Magistrate Jallah had confirmed as prosecutors’ shreds of evidence in the case.
Atty. Karnuah’s confession came when lawyers representing Cummings accused the Solicitor General of extracting from his evidence the exchanges of social media text messages between Cummings and other leaders of the CPP in the National Advisory Council chatroom.
Cephus, while submitting his documentary evidence to Magistrate Jallah, maintained that the defendants’ social media and text messages exchanges occurred between July 2 and 19, but failed to include the document that contained said communications as part of his evidence that was confirmed by the court.
During his opening confession statement, Atty. Karnuah said, “the omission was an inadvertent (without intention; accidental) error.”
Karnuah also did not blame any single prosecutor, including the accused, Cllr. Cephus, for their unexpected error.
“We bring along with us, the corrected version, and we want the court to discard the one version, that had the July 2 and 19 omitted,” Karnuah pleaded with the court. “We want the corrected version to be confirmed and to find a cogent part in the proceedings. And, the correction or photocopy of the conversation [from between] July 2 and 19, should be given to the defense to have them inserted into the prosecution documentary evidence in the proceeding.”
Cummings, who is the political leader of the opposition Alternative National Congress, is being prosecuted by the Ministry of Justice along with two of his party hierarchy — Senator Daniel Naatehn, Chairman of the party and Atty. Alloysius Toe, Secretary-General for allegedly tampering with the Collaborating Political Parties’ framework documents when Cummings served as chairman in 2021.
The government prosecution is based on a complaint from Benoni Urey of All Liberian Party, whose party was once a member of the CPP.
In response to Cllr. Cephus’ request, the defendants’ lead lawyer, Counselor Abraham Sillah, lashed out at the prosecutors, and accused them of baffling the trial with unmerited and unreasonable requests far removed from the substantive issues of the “forgery and criminal conspiracy” case
Cllr. Sillah noted that WhatsApp messages are end-to-end encrypted, with no third party access, and that it is unthinkable to request Cummings to produce WhatsApp messages, considering its encrypted technology.
Meanwhile, Cllr. Sillah has described the prosecutor general’s request as a means to cover up his shameful admission that he and his prosecutors team committed prosecutorial misconduct by intentionally omitting material pieces of evidence from the document submitted to the court and subsequently presented to the defense team on discovery.
However, after the argument, Cephus conceded and asked Magistrate Jallah to deny his application, and to allow the case to proceed, which Magistrate Jallah did not honor, instead, he reserved his ruling.
Additionally, Cllr. Cephus has asked the court via a bill of information to compel Cummings to produce his current Liberian passport with an American Visa inside to prove that he complied with the mandate of Counselor Roosevelt Willie, the Resident Judge of the Criminal Court’ A’, who approved Cummings recent visit to the US.
The bill of information filed on April 4, is requesting the defendants lawyers to provide in addition to Cummings travel information, his Passport with American visa to prove that he traveled to the United States and returned to Liberia before or on March 25, 2022.
Judge Willie’s involvement was triggered when Cllr. Cephus complained to Magistrate Jallah, challenging the magistrate’s decision to grant Cummings’ request for a short term visit to the US, to see the condition of his ailing mother.
Cephus further argued that if Cummings traveled safely out of the country, and peacefully returned, he must do the right thing by producing these documents including but not limited to the photocopy of his American Visa.
“Cummings never traveled to the US, he has violated the court order. He must produce the documents to allay our suspicions and other information in the public that he doesn’t not travel to the US, as he had earlier indicated in his swarm submission,” Cephus added.
But in counterargument, Cllr Sillah said Cummings did not breach the court’s mandate when he traveled to the US and that there is no law, which requires a defendant requesting voluntary leave from a trial to produce an American passport with an American visa to establish that s/he did travel to the United States.
He however said in keeping with law, they have provided State Prosecutors with Cummings’ flight and ticket numbers, itenary of departure, duration of stay and return to Liberia.
“The fact that Cummings has since returned and appeared in court, state prosecutors’ request was unnecessary and viewed as personally vindictive against Cummings, while the other defendants, including Senator Naatehn and Mr. Aloysius Toe are mere victims of circumstances. We suspect ulterior motives by State Lawyers request for Cummings’ passport with American visa, and that the charges are Politically motivated.”