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The danger ahead of 2017: NEC, Parties and The Supreme Court {Pt-1}

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NEC KokoyaNo doubt the 2017 General and Presidential elections will be a defining moment to test Liberia’s infant democracy. More so because unlike the past two elections-2005 and 2011, 2017 presents a free for all.

Except for 15 Senators who were elected on December 20, 2014 in a special election, the Presidency, along with all 73 seats in the House of Representatives and 15 seats in the Senate will all be up for grab.

As open as the seats are for grab, so are the numbers of contestants and the intensities with which contending parties and individual politicians would want to grab them.

Some in their zest for power will go at any length, even if it means destroying the sanity of the elections and bringing the entire process into disrepute – and this is scaring.

What is even more scaring will be the role of the Constitutional Court or the Supreme Court as the fallouts from the December 20, 2014 Special Senatorial Election point out loudly.

After that election, two political parties and individual candidates who participated in the poll, filed a petition on January 2, 2015, for a writ of prohibition before the Justice in Chambers, Justice Philip A.Z. Banks, III.

The writ was filed against the NEC and certain declared winners of the election. The petitioners prayed the Court to not only prohibit the NEC from certificating those declared winners but to also de-certificate those already certificated. This led to an influx of petitions before the Highest Court. Some of these petitions which came flying at the Supreme Court had no records before the Board of Commissioners of the National Elections Commission or NEC.

As to whether these actions were taken to satisfy certain individuals or cast a shadow over the entire process and leave the NEC Board of Commissioners hanging is a thesis topic for another date.. But looking at the procedures and processes in settling electoral disputes coupled with the actions at the Supreme Court , it leaves more room for debate.

Because taking a cursory look at the procedures and processes of addressing grievances between disputing contestants in an election, one is tempted to say that the fallouts from the December 20, 2014, if not corrected could be a recipe for disaster in 2017.

So what are the processes and procedures?

Under the new elections law approved on September 29, 1986; and amended on January 29, 2003 and December 23, 2004 to be precise Chapter 6 as regards to contested election;

Section 6.1 states : Any political party or candidate who has justifiable reason to believe that the elections were not impartially conducted and not in keeping with the elections law, which resulted in his defeat or the defeat of a candidate shall have the right to file a complaint with the Commission; such complaint must be filed not later than seven days after the results of the elections.

Section 6.2 of the same Chapter 6 says the Commission upon receipt of the complaint of the contestant shall within thirty (30) days cite the parties; conduct an impartial investigation, and render a determination as provided for in Paragraph 2 of this section. The determination shall be accompanied by a summary of the investigation and the reason for it.

Section 6.3 says any contestant affected by the decision of the commission shall have the right to appeal to the Supreme Court of Liberia no later than seven (7) days after the decision is rendered.

In addition, NEC has in place procedures for hearing its complaints.

First Step: An aggrieved candidate is required to file a complaint with the elections magistrate in the County in which he/she contests an election. The magistrate with the assistance of an elections Complaint Hearing Officer conducts an investigation into such complaint and renders a decision. If that candidate is not satisfied with the result of the Magistrate’s ruling, he/she is required to announce an appeal.

Second Step: The appeal is then sent to the Senior Hearing Officer at the Commission headquarters who then listens to the appeal and renders a decision. If the complainant is still not satisfied with the decision of the Senior Hearing Officer he/she is required to announce an appeal.

Step Three: The appeal is then sent to the Board of Commissioners of the Commission which reveals the decision of the senior hearing officer and renders a decision. If the complainant is still dissatisfied with the decision of the Board, he/she is required to announce an appeal before the Supreme Court of Liberia.

As to whether the above procedures and steps were followed before the influx of petitions before the Supreme Court from the fallouts of the December 20, 2014 special election leaves much to be desired.

Did the Justice in Chambers act right during the fallouts from the December 2017 special election?

Majority members of the Supreme Court Bench agreed. But two dissenting Justices sense the danger of such decision in 2017.

In their dissenting view in the afore mentioned petition filed by the two political parties on January 2, 2015 against NEC and certain declared winners just 13 days after the poll, Associate Justices Jamesetta Howard Wolokolie and Sie -A-Nyene G. Yuoh, in a joint opinion, said in the case of two complaints against each of the 73 Representatives elected in 2017 by any of the losing candidates, the NEC will need to process 146 complaints within 30 days.

Thus, the dissenting Justices warned that “should these complainants also feel encouraged to petition the Supreme Court to prevent these Representatives-elect from being certificated and seated, there will be a significant level of uncertainty across Liberia over the status of the election.”

Looking back at the January 2, 2015 petition, upon filing of the petitions by Dr. Fodee Kromah, of the National Patriotic Party (NPP) and Congress for Democratic Change (CDC) and its candidate, Professor Ansu D. Sonii, a day before the certification by the NEC of declared winners of the election, the Justice in Chambers cited the parties to a conference on January 5, 2015, but in the meantime, mandated the NEC to stay the certification of Cllr. Varney G. Sherman of Grand Cape Mount County, Morris Saytumah of Bomi County, and Jim Womba Tornoniah of Margibi County, pending the outcome of the conference.

Gbleh-Bo Brown and Commany B. Wesseh, declared winners of Maryland County and River Gee County respectively, had petitions filed against them shortly after they were certificated.
Both men were also invited by the Justice in Chambers to a conference. But the Justice in Chambers declined to send an order to the NEC to have them de-certificated.

It was after the petition against these certificated declared winners that there began an influx of petitions praying for decertification of declared winners of the elections which this time the Justice refused to consider.

It is from this background that Justice Wolokollie and Justice Youh said they did not go along with their majority colleagues’ interpretation of Article 83 (c), which requires that only those candidates whose elections are not contested or who have had complaints against their elections as winners heard and decided can be certificated to take political office.

“This, we say, is a misinterpretation of this provision of the Constitution and will be a recipe for disaster,” the dissenting justices warned.

Their criticism of the majority’s view is that it would be difficult if not impossible to remove a declared candidate who is certificated and seated than staying his certification and have him seated only until after the challenge to his election results is finally disposed of.

They additionally contended that there is nowhere in the 1986 Constitution or the New Elections Laws that mandates the certification of a declared winner; and that there is nothing on the pages of Liberia’s Legislative history that compels or obligates the NEC to issue certificate to declared winners.

Justices Wolokollie and Youh said laws here are completely silent on the issuance of certificates to declared winners.

While agreeing that it was logical that one appearing before the Senate must show evidence from the NEC which declared him the winner, they however said they were dissenting because certification could be done on the day of the declaration of the winners since there is no law indicating when a candidate can be certificated.

They argued that if the 2014 Special Senatorial Elections were held under normal condition without the Ebola interruption and the date of the election had not been changed, the election would have been held on October 14, 2014, following which the NEC would have had up to October 29th 2014 to declare the winners of the election.

A candidate dissatisfied with the election results had up to November 5, 2014, seven days to file complaint, the justices said, adding that the NEC had up to December 5, 2014, thirty days, to hear such complaint and make a ruling.

The candidate, if dissatisfied with the ruling of NEC, had up to December 12, 2014, that is seven days to appeal NEC’s ruling to the Supreme Court.

And the NEC then had up to seven days, that is December 19, 2014, to send up the records of the hearing to the Supreme Court. The 19th of December 2014, being on a Friday, the Supreme Court because of the exigency attached to election’s matter may have assigned the matter for hearing at most on Wednesday, December 24, 2014, giving the parties ample time to file their briefs, according to the dissenting justices.

“Thereafter, the Supreme Court had up to December 31, 2014, to render its decision on the matter; that is seven days after hearing. With this ideal situation, NEC could then have safely certificated the winning candidate a week before the Legislature assembled in regular session on the second working Monday in January; that is, January 12, 2015.”

“Does this provision of the Constitution mandate non-certification of a candidate who has been declared the winner of a legislative election from taking seat until the complaints filed against the elections result which declares him the winner by NEC is heard?-to becontinued. 

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