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-As Supreme Court faces tricky situation

Liberia’s Supreme Court is in a tricky situation of deciding an election matter filed by the opposition Collaborating Political Parties (CPP), asking the court to issue a mandamus against the Legislature for failing to notify the National Elections Commission (NEC) within 30 days to conduct election to fill two vacancies created by deceased lawmakers.

The CPP case concerns the alleged failure of the Legislature to abide by Article 37 of the Liberian Constitution to notify the NEC of two vacancies in the Legislature within constitutional time of 30 days after the deaths of Sinoe County Rep. Nagbe Sloh and Montserrado County Rep. Munah Pennoh Youngblood and cause by – elections to be held.

While entertaining lawyers’ arguments Monday, 19 September in the Banquet Hall of the Supreme Court, Chief Justice Francis S. Korkpor, Sr., viewed the election matter as a tricky situation, asking the CPP lawyer if he didn’t think this opens another wave for the court to say for example, expand the office of mandamus because this case is unprecedented.

“On the one hand I agree with you that if you had come before the expiration of the time, you will say but the people still got their time to do what they call, you cannot. Mandamus only takes place after you know, they have failed to perform. So it’s a tricky situation,” Chief Justice Korkpor says.

“Here we are, you filed a mandamus to compel the Legislature to do an act in 30 days when in effect it cannot be done because the 30 days [have] expired,” he says. In its questions submitted before the Supreme Court against the NEC and the government at large, the CPP is asking whether Article 37 of the Constitution imposes a legal duty on the Legislature and the NEC.

This provision cited requires that in the event of vacancy within the Legislature caused by death, resignation, expulsion or otherwise, the presiding officer shall within 30 days notify the NEC, and the NEC shall not later than 90 days thereafter, cause a by – election to be held.

The CPP also asks if it is the contemplation of the Constitution that by – election to fill vacancies created in the Legislature be conducted within a maximum period of 120 days.

Thirdly, the CPP wants an answer if the NEC and the Legislature are in compliance with their legal duty by setting 8 December 2020 as the date for the two by – elections caused by the death on 20 June 2020 of Sinoe Rep. J. Nagbe Sloh and the death on 8 July 2020 of Montserrado Rep. Munah Pennoh Youngblooed.

The CPP also wants the court to determine whether mandamus can lie on the Legislature and the NEC if they did not comply with their legal duties; and whether their failure to set the by – election date within the constitutional time frame offends democratic values.

Chief Justice Korkpor questions the CPP lawyer saying, if he didn’t think this opens another wave for this court to say for example, expand the office of Mandamus because this is unprecedented, saying he didn’t think the court had a situation of mandamus like this before.

He notes that you bring mandamus when the official act you ought to perform has not been performed. But in this particular case, he says the assumption would be that performance which is time – bound must be performed and within the time that you are complaining that the act has not been done.

“So I’m sitting down here thinking of it because all other cases of mandamus that we dealt with in this court so far, you filed to compel when the time is still there to compel. But in this particular case … the time to compel to perform has already passed,” he continues.

Responding to the Chief Justice, Cllr. Benedict Sannoh, representing the CPP, agrees that “it’s a tricky situation,” but urges the Supreme Court to make a determination that even if mandamus is not granted, the opinion of the Supreme Court must address issues of the violation especially in light of the litany of violation so that there cannot be a recurrence.

Cllr. Sannoh, a former Justice Minister, stresses that it is important to make a declaration that because of the litany of violations of the Constitution, the Legislature must understand that Article 37 is mandatory and it’s a legal obligation that the Legislature must uphold.

He argues that the Legislature is no different from the Executive because they are all created from the Constitution. He notes that mandamus have been issued against the executive and can lie against the executive and so therefore mandamus can also lie against the legislature, especially if the performance is a ministerial function, a legal duty.

While posing questions to the parties, Associate Justice Yusuf D. Kaba wonders if it was not the responsibility of the stakeholders in the electoral process, the citizens for example who will be affected by non -representation to have filed the mandamus after the 30th day when the Legislature failed to act.

Justice Kaba notes that the Legislature was to act within 30 days, instead it went up to 70 days without acting. Yet he says the political parties, the associations, the individual citizens, were all party to this matter but they sat supinely and nobody went out to have the Legislature to do what it was supposed to do.

Further, he says nobody came out to correct the shortcomings of the Legislature in this matter, but the CPP waited until after the Legislature had corrected the error that it committed before it came with mandamus to do what the Legislature had already done. But Cllr. Sannoh says the result would have been the same, noting that mandamus would not have lied until the 30 days had passed.

“So whether you come on the 31st day or you come on the 32nd day, it’s immaterial as far as that particular violation is concerned. So it’s a tricky thing because we cannot come before the 30th day, hoping that as lawmakers they would abide by their constitutional duty and do what is right,” Sannoh says.

Arguing for the NEC, Cllr. Michael Wilkins Wright says for NEC to act to trigger the 90 days, it must be notified by the Legislature. He notes that under Article 37 of the Constitution, the decisive word for the Supreme Court to determine says “NEC must act within 90 days thereafter,” explaining that the word “thereafter” decides the NEC’s issue.

According to him, the legal duty for NEC to act is to conduct election within 90 days after receiving notice, differing with Cllr. Sannoh’s suggestion that in the spirit of coordination, the NEC should have gone to the Legislature and reminded it to give the notice because time was running out.

“NEC is not required in other words, to go round looking for what to do. No, no. Its work is defined by law. The legal duty imposed upon NEC does not commence until the Legislature has done its work first,” Cllr. Wright argues.

He adds that in the mind of NEC, it got no reason to be in violation, praying the court to see the matter through the lens of NEC which, according to him, is prepared to work, has ambition, makes work plans and put them down, but faces financial challenge while time runs out.

Representing the Legislative and Executive branches, Solicitor General Cllr. Saymah Syrenius Cephus challenges the CPP to show the compelling evidence that the Legislature has not performed as required.

Cllr. Cephus argues that part of the problem with the petition is that it was hastily filed, suggesting that a little bit of due diligence needed to be done on some of the issues.

He pleads with the court to deny and dismiss the petition and let the CPP file an appropriate action that would empower the court to squarely and in a more certain manner interpret the alleged non – performance of actions under Article 37 and declare that action unconstitutional.

The Supreme Court reserves ruling in the case.

By Winston W. Parley

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