Examining the legality of prosecuting Thomas Eric Duncan
By Cecil Franweah Frank 
On September 19, Thomas Eric Duncan is said to have boarded a flight from Liberia’s Roberts International Airport for the United States via Belgium, Brussels. As it later turned out, the flight and Mr. Duncan’s subsequent arrival in the United States started a Trans-Atlantic scandal involving the first known spread of Ebola outside of Africa. He arrived in the State of Texas on September 20.
Thus, the American State of Texas became the first state in the United States for a patient to be diagnosed with the deadly virus Ebola. Mr. Duncan was said to have first gone to the Texas Health Presbyterian Hospital in the City of Dallas on September 25, but was sent home by the Emergency Room staff with painkillers and antibiotics.
This is typical of ERs in the United States where patients are rarely properly examined for illnesses and often send home with painkillers and antibiotics, only to return to the ERs with worsened conditions. True to this tradition, on September 28, Thomas Duncan returned to the ER in worse condition than when he first approached them. After several tests were done, it was discovered that he had the Ebola virus. The fear of Ebola spreading internationally has now catapulted to the top of international health agenda and is the driving force now for global effort to tackle the disease.
In the aftermath of a Liberian coming to the United States with Ebola, Liberian government officials recently declared publicly their intent to prosecute Mr. Duncan if and when he returns to Liberia. On October 2, in an interview with Canadian public broadcaster CBC, President Ellen Johnson-Sirleaf alluded to prosecuting Duncan, saying that she will “consult with lawyers.” She went on to describe Duncan’s exit from Liberia as “unpardonable,” accusing him of having prior knowledge that he was exposed to the virus. Later, Liberian government officials released Duncan’s Ebola screening form he filled out at the airport to prove that he had lied about his exposure to the Ebola virus.
Mr. Duncan’s relatives in the United States stated that he did informed them that he had assisted a pregnant woman who had collapsed in the street. News media reports citing sources in Liberia indicated that the pregnant woman eventually died from Ebola. However, there are conflicting, unconfirmed reports as to whether Mr. Duncan had knowledge that the pregnant woman he assisted had died from Ebola prior to him filling out the questionnaire at the airport.
This article examines the legal basis, if any, for prosecuting Duncan by the Liberian government within the context of the following questions:
First, in providing supposedly false information on the Ebola questionnaire, did Mr. Duncan violate the New Penal Code, which is Liberia’s key criminal law, defining the scope of various offenses and outlining the types of punishments for these offenses?
Second, was Duncan aware that providing false information on a government form like the Ebola screening questionnaire constituted a crime, and that he could be held criminally liable for it?
Third, do we have a case precedent of a Liberian citizen being prosecuted for providing false information on a government document and/or form?
Fourth, is Liberia or the United States entitled to prosecute Thomas Duncan if he is found to have willfully lied on his screening questionnaire?
The answers to these questions will help us understand whether the Liberian government has a legal basis to prosecute Duncan; or its threat to do so is a smokescreen aimed at saving face for the Liberian government’s own failures to deal effectively with the epidemic.
ANALYSIS OF FACTS
According to Article 15, section B of the Liberian Constitution, the right of freedom of expression…“encompasses the right…to knowledge. It includes freedom…to receive and impart knowledge and information and the right…to make such knowledge available…” The Government of Liberia has historically been restrictive of the disclosure of public information in the public interest.
This situation has not changed much under the Johnson-Sirleaf administration. An example of this is the 2008 scandal surrounding the internet publication by Front Page Africa of intercepted emails under the name of Former Minister of State Willis Knuckles for payment of a million dollar kickback by the company hired to manage Liberia’s Maritime funds in order to maintain the contract. Front Page publishers were found guilty of ‘breach of privacy of messages.’ This was the excuse used by the Johnson-Sirleaf administration to restrict the online publication from disclosing information that were in the public interest and superseded privacy.
Now, in the Duncan case, the government is using the failure to divulge information by citizens as grounds for their prosecution.
The New Penal Law, otherwise known as Title 26, does not specifically outline penalties for the endangerment of public health. However, the first paragraph of Part I of Section 1.5 requires that all offenses be defined by statute. In order words, no conduct is an offense unless it is a crime or infraction under Title 26 or another statute of Liberia. Mr. Duncan is accused of lying or giving false statement. Whether the falsification he is accused of committing is a material fact may only be determined in a court of law.
Part II of section 2.1 lists omission as an offense if it is in violation of a statute that provides that the conduct is an offense. As such, the government’s case against Mr. Duncan is largely contingent on Part XII of section 12.31, paragraph B, which criminalizes omission of information in order to purposely create a false impression for one’s own benefit. In order for the government to successfully hold Duncan culpable for his conduct under the provision of Section 12.31, the government must show that he purposely, knowingly, recklessly, negligently, and willfully omitted the information on his contact with an Ebola patient. This will be tough to prove.
In Liberia’s 167 years of existence, there is no documented case involving the prosecution of a citizen for providing false information to the authorities on a government document. There are lots of reasons for such, including the lack of political will on the part of the country’s leaders to enforce such laws and the culture of secrecy in government, which excludes scrutiny of information. Moreover, most of Liberia’s political leaders feel that they are above the people they are governing since they went to save them, and as such do not feel the need to provide truthful information. Liberian leaders have a manifest interest in not pressing prosecutions for false information.
The Ebola screening questionnaire provided by the Liberian government at the airport did not explicitly warn travelers about potential criminal liability for providing false, inaccurate information. As such, Mr. Duncan may have been ignorant of the consequence of his actions or considered that such information was immaterial. As a result, he may attempt to seek negation of his culpability under Part II of Section 2.4 of the Penal Law. The government will find it difficult to argue that Duncan is not entitled to argue the immaterial nature of his falsification as a defense strategy. The omission of such warning on the questionnaire is a serious failing by the government given the fact that there are low levels of awareness among members of the Liberian public about the need to provide truthful information, as well as to demand information from the government.
The Ebola screening questionnaire was prepared, printed, and provided by the Liberian government, not the Government of the United States. As such, Mr. Duncan’s conduct of omitting information was an offense committed in Liberia. The U.S. government did not have an Ebola questionnaire as part of the visa application process, and was not required to disclose his exposure to Ebola during the visa interview.
As such, it may only prosecute Duncan for lying on his screening questionnaire at the airport if the jurisdiction is expressly conferred upon it by a treaty with Liberia. Otherwise, the U.S. has little recourse to prosecute Duncan. Talk in Texas about the possibility of prosecuting Duncan there may be legally premature. Given that Duncan is proven to have known about the Ebola status of the woman he assisted and lied on his form, the U.S. will have to prove that his intent was to expose Americans to public health hazard in order to prosecute him. At most, in the absence of a prosecution, the U.S. may revoke his visa and return him to Liberia.
CONCLUSION
The Liberian government failed to warn travelers about their legal culpability for providing false information on the Ebola screening questionnaire. The potential case against Thomas Eric Duncan is based under Chapter 12 of the New Penal Law, which regulates offenses against government integrity.
Government case hinges on showing that Duncan had prior knowledge of the Ebola status of the pregnant woman he is said to have assisted and then willfully omitted this fact in answering his questionnaire. However, any suggestion that Duncan was infected and knew about this prior to traveling to the U.S. may be groundless given reports that he fell ill 4 days after his arrival in the U.S., and during testing at the airport did not have a fever.
The government does not have any case precedence to rely on and this will make it difficult to prosecute the case. The intent of the government may be to prosecute this case to make it a precedent, and to signal that the “control protocols” at the airport are not worthless. As such, the government’s threat to prosecute Duncan is seen mostly as an attempt to mask its own failings in providing adequate procedures for controlling the spread of Ebola and to appease the United States and other nations in order to preserve traveling links. There are obvious risks to this strategy.
First, the mistrust between the government and citizens will widen as citizens see that the government is protective of their interests. Second, there might be a reverse action whereby the government may be sued by citizens who have lost relatives to Ebola for negligence in the spread of the disease, failure to implement the Public Health Policy and Plan of 2007, The Public Health Law, National Environment and Occupational Health Policy of 2010, and most importantly, for infringing upon the right to life by citizens as specified in Article 20 (a) of the Constitution.
This constitutional provision binds the government – legislative and executive – to meet the right of citizens to clean and healthy environment, as well as to adopt and implement active health policies and plans to safeguard the health of the population. Third, the demand to provide truthful information is a two-way street. Prosecuting Duncan may lead to demand from the public for government to provide access to information.
Cecil Franweah Frank is a Law and Public Policy PhD candidate at Walden University, and founding member of the Coalition of Concerned Liberians (CCL). For comments on this article, please contact him at [email protected].
Category: Editorial, News Headlines
