The Chief Justice and members of the Liberian Supreme Court
By Counsellor Sayma Syrenius Cephus
Why I Disagree With The Honorable Supreme Court of Liberia for Entertaining And Granting Liberty Party’s (LP) Petition for A Writ of Prohibition
Comments and Analysis by Cllr. Sayma Syrenius Cephus
In life, sometimes it’s difficult to openly disagree with someone that you so revered, and whose counsel is always sought at every stage of your endeavors as you aspire for greater statures. Today, I am constrained to openly disagree with the venerated jurists of the Honorable Supreme Court of Liberia for agreeing to be seized of a petition for a writ of prohibition, and then granting ex parte the Alternative Writ and later, the Preemptory Writ of Prohibition in favor of the Liberty Party, prohibiting, inhibiting and preventing the NEC from all actions and activities regarding the conduct of the presidential runoff which was slated for November 7, 2017 pending the final determination of the complaint filed by the Liberty Party(LP).
My disagreement is not official and is not the law of land but a mere expression of a personal opinion as a lawyer, something which His Honor, Professor Mr. Justice Philip A.Z. Banks, III, will specifically admire and which the entire Supreme Court bench will surely appreciate. I am therefore impelled by common sense to critique this latest opinion as a way of adding to the public debate which I believe will perhaps give the Supreme Court the opportunity to see and read how and why its latest opinion has produced more questions than answers. This is just an academic debate intended to enhance our current democratic process and not an open challenge to the sovereign judicial powers of the Honorable Supreme Court of Liberia, which under the 1986 Constitution is the only branch of the Liberian Government that has the inherent constitutional power and authority to determine what constitutes a contempt of court, and could, if it feels threatened or belittled cite me to a contempt hearing and sits both as a judge and a complainant de facto. See in re Francis G. Doe, 23LLR38.
As a way of ruffling the nerves of my critics, I want to commence my argument with an opening statement by saying that one of the most difficult things about the current Supreme Court Bench is that it is absolutely difficult to predict the court’s judgments or rulings on matters brought before it nowadays because some of the cases that are being determined by the court have no juridical precedents or histories in the Liberian jurisprudence, meaning, almost all of the landmarked cases that are being decided have no previous histories. See John Greenwood v. R.L 7 LLR150
Almost all of the major electoral cases that are bordering on the constitutional issues are being raised for the first time before the Honorable Supreme Court of Liberia. It is therefore obvious that in its attempt to strike a balance between perception and certainty, between quarrels and arguments and between politics and the rule of law, the court has always disheveled the nerves of those who do not understand its character and image as an “infallible constitutional authority” under the 1986 Constitution when it comes to the review, interpretation, and declaration of any statutory or constitutional provision.
And when the court does so, whether wrong or right, that exercise becomes the law unless the court itself sees fit to review and correct its own actions. One can well imagine why critiquing the opinion of an institution that is a “self-correcting entity” or that is infallible under the 1986 Constitution has become so difficult if not impossible. Evaluating the opinion of the Supreme Court of Liberia is, therefore, a serious gamble that could lead to a contempt of court, or to a citation to show cause, if any, why the critic cannot be held in contempt if the justices disagree with the tone and tenor of the criticisms. This has been the horrific narratives associated with the history of the Liberian Supreme Court which in the past was very much part of the repressive structure of the Liberian state.
However, with the passage of time and with the new dispensation of tolerance seen on the bench that comprises some of the most revered broad-minded personalities, I am certain that the court itself will appreciate some of the points that have been highlighted in this article, and which ultimately formed the basis of my disagreement with its opinion without being aggrieved or angered by the view expressed. Again, the view expressed herein is personal and should not be treated or construed as an attempt to alter or rival what the Supreme Court said is the law of the land and therefore, I apologize for whatever ill-feelings that may develop as a result of reading this article.
In one of his intellectual legal calisthenics, venerated professor of law and Associate Justice of the Honorable Supreme Court of Liberia, His Honor, Mr. Justice Philip A.Z. Banks, III, in an obiter dictum, opined in the case: “Martha Sirleaf v. Republic of Liberia” as follows: “The jurisdiction of any institution to preside over a matter is a fundamental question of law which touches not only the competency, or the ability of the institution to handle a matter but also its authority and power to address any issue or question of law brought before it. For a forum or a tribunal to exercise or assume jurisdiction over a matter, it must first and foremost determine its own power and authority, competency, or limitations and the application of whatever law it wishes to rely upon in order to provide the appropriate relief that is being sought.” Professor Banks further contended that any institution which assumes or exercises jurisdiction over a matter without first determining its own authority and limitations commits a serious reversible error and any decision, judgment or ruling made therefrom has no binding force and effect and shall be deemed void ab initio( emphasis mine). I could not agree with Professor banks more when it comes to the petition for a writ of prohibition filed by the Liberty Party (LP), craving the indulgence of the Honorable Supreme Court of Liberia to prohibit, inhibit and prevent the National Elections Commission (NEC) from proceeding with the conduct of the November 7, 2017 Presidential Runoff while its complaint of alleged electoral irregularities, frauds, and alleged vote-riggings, is being investigated by the Commission. What is constitutionally true is that the Honorable Court of Liberia has original jurisdiction over all remedial processes including but not limited to the authority to issue a writ of prohibition consistent with chapter 16, section 16.22 of the Civil Procedure Law. The Court, therefore, has the power and authority not only to prohibit the actions of a respondent party but also to undo what has already been done.
In the petition for a writ of prohibition, the Liberty Party woefully failed to state in clear and unambiguous terms what actually constitutes the illegal performance of some act by NEC or what is considered as an alleged arrogation or usurpation of power and authority by the NEC which has not been delegated to it by law. The petition by the Liberty Party is a cacophony of unpalatable narratives that are based on mere assumptions, half-truths, and gossips without any tangible evidence to demonstrate that the NEC has proceeded by wrong rules or has taken or adopted a proceeding incompatible of chapter 6 sections 6.1 &6.2 of the New Elections Law. The argument contained in Liberty Party’s petition can be found in counts 5, 6, 7 and 8 of the petition and is summarized as follows (1) That the NEC allegedly failed to publish without delay an order postponing the November 7, 2017 presidential runoff, (2) that the NEC violated petitioner’s rights to due process and (3) and that if the presidential runoff is had and the entire elections concluded a possible judgment in favor of petitioner could be rendered ineffectual. The Liberty Party cited no specific law that makes it absolutely mandatory on the part of the NEC “to publish without any delay an order postponing the November 7, 2017, presidential runoff while its complaint of alleged electoral irregularities is being investigated. Moreover, the Liberty Party did not state in clear terms what specifically it considered as a violation of its right to due process of law.
The truth is that the Liberty Party unduly seduced the Supreme Court into a fanciful argument that is not supported by any facts or evidence that if the presidential runoff is had and the entire electoral process is concluded a possible judgment in favor of the Liberty Party could be rendered ineffectual.
The Supreme Court based on the mere and unfounded assumption that Liberty Party could prevail in its complaint before the NEC and not on any tangible evidence brought before it on appeal proceeded to issue the Alternative Writ ex parte and subsequently the Peremptory Writ of Prohibition. I fail to see how in the face of such conjecture that is based on the probability that the Liberty Party could win and not on the basis of certainty that the Liberty Party has won the case, our distinguished jurists par excellence, could have proceeded to issue the peremptory writ inhibiting, prohibiting and preventing the NEC from proceeding with the conduct of the presidential runoff pending the full determination of the complaint by the Liberty Party.
According to the Black’s Law Online Dictionary Second Edition, a probability is defined as the likelihood of a hypothesis being true, from its conformity to reason or experience, or from superior evidence or arguments adduced in its favor or the chance that a particular event (or set of events) will occur. In law, one may define probability to mean an assumption or a belief that the chance of winning a lawsuit is possible or can happen on a 50-50 basis. The Supreme Court has decided to entertain an audacious petition that grew out of a complaint that is founded on the altar of probability with a 50-50 chance and that is not supported by any credible and convincing evidence that it is 100% winnable. By so doing, the Supreme Court of Liberia in my view has inarguably exceeded the limits of an objective probability threshold which dictates that the qualification or the possibility of an occurrence is based on exhaustive analysis and measurements of the evidence presented as opposed to subjective evaluation, which is an assessment or evaluation of something that is biased, opinionated, and even possibly highly influenced by the person’s own understanding of the issues presented. The Court granted the petition on the basis of “If the Liberty Party wins” which only suggests the likelihood of being true but is not true in itself because there has been no exhaustive analysis or measurement of any evidence that has been presented before the Honorable Supreme Court on appeal. That being the case, the Liberty Party petition did not meet the objective probability requirements, and therefore, the petition for a writ of prohibition should have been denied and dismissed.
Further, The Supreme Court also exceeded the statutory parameters of the definition as well as the object and purpose of a petition for a writ of prohibition as found in the case: “Sesay vs. Badio, 37 Liberian Law Reports (37LLR, 359), and syllabus 9, where the court says a petition for a writ of prohibition does not only prevent, avert or discourage the illegal performance of any act by a judicial or administrative official or citizen but also is intended to undo an illegal act that has already been, or is being performed. To be seized of an electoral complaint and to conduct a hearing are part of the responsibilities of the NEC consistent with chapter 6 of the New Elections Law and Article 83(c) of the 1986 Constitution.
What did the NEC do that the petitioner seeks to prevent, avert or discourage or what did the peremptory writ of prohibition issued by the Honorable Supreme Court seek to undo or that has already been done, or is being performed? For the sake of this debate let us stretch the argument to a new height for a better understanding of the issue. Take, for instance, the case of a customer having an account with UBA or ECOBANK. He/she alleges frauds or irregularities said to have been committed to his/her account, and for this reason, filed a complaint with the bank, seeking a redress. However, while the investigation is ongoing at the bank, the same customer learns that the bank is giving out financial loans and on that basis, the customer goes to the Supreme Court for a writ of prohibition to prevent and prohibit the bank from giving out loans on grounds that the customer could win and if the Supreme Court does not stop the bank the money could finish and any judgment render in favor of the customer would be ineffectual. Or let say the banks need a loan supervisor and for this reason administers an exam and only two candidates from the dozens who sat the exam made the required passing marks or grades but the bank only needs one person. The bank, therefore, sets a date for an interview of the two candidates with the higher marks and while they are preparing, one of those candidates who has failed the exam, filed a complaint with the bank challenging the results and while the investigation is ongoing, the same failed candidate flees to the Supreme Court for a writ of prohibition, on grounds that he could win his complaint and if the court does not stop the interview of the two successful candidates, any judgment render in his favor would be ineffectual. And based on this allegation against the bank, the court proceeds to issue first the Alternative Writ and then the Peremptory Writ, prohibiting and inhibiting the bank from giving out loans or from conducting the interview of the two successful candidates because there is a possibility that the petitioner could win its complaint before the bank. The examples presented herein, give you a clearer understanding of what the Supreme Court has actually done. In my opinion, the Honorable Supreme Court of Liberia lacks the constitutional authority to preempt the possibility of a party litigant winning or prevailing in a case before a lower court or administrative agency on the basis of mere allegations, especially so when such matter has not been brought before it on appeal. The Supreme Court should not have granted the petition for a writ of prohibition in favor of the Liberty Party on the ground that a potential right could be violated, when in fact there existed no evidence that such a right had been violated in the first place by the NEC. While the robust exercise of a judicial authority in the interpretation, defense, and declaration of the due process principle of Article 20(a) of the 1986 Constitution is a form of deterrence to would-be violators, and the Supreme Court of Liberia should be graciously commended for jealously guiding this salient principle of our jurisprudence, I am however unable to agree with the Supreme Court that such a constitutional right can be prospectively granted to a party litigant on the basis that a potential right could or may be or is on the verge of being violated. The writ as an affirmative judicial action prohibits, inhibits and prevents has happened or can undo what has happened and not what “could possibly happen.”
In the petition before the Supreme Court as found in count 8, the Liberty Party specifically argued that “…If the presidential runoff is had and the entire elections concluded a possible judgment in favor of petitioner could be rendered ineffectual.” The Supreme Court, therefore, proceeded to grant the petition on the basis of presumption, and by so doing, the court to a large extent unwittingly agrees with the Liberty Party that it will prevail in its complaint before the NEC. The issuance of the peremptory writ of prohibition preemptively sets into motion an ill-fated condition in which the Liberty Party expects nothing but victory in its complaint at the NEC.
I am unable to agree with the Bench because the Supreme Court did not see the danger of being drawn into preempting what Liberty Party sees as a possible judgment in its favor without having a full review of whatever evidence it has presented at the NEC. This can only happen when the matter comes on appeal before the Supreme Court. By granting the peremptory writ, the Supreme Court also unsuspectingly agrees with the Liberty Party’s argument that by halting the conduct of the presidential runoff, the court has effectively prevented the waste and abuse of taxpayers’ money while the contrary is considered as the waste and abuse of taxpayers’ money. My disagreement with this position of the court is grounded on two fundamental arguments. First, it would appear that the Supreme Court issued the peremptory writ on grounds that Liberty Party could win its complaint at NEC. Second, what will happen if the Liberty Party loses its complaint? Which of the two arguments would be considered as waste and abuse of taxpayers’ money? The Liberty Party asserts that the writ is intended to protect the abuse and waste of taxpayers’ money and therefore it must be issued to halt the presidential runoff on November 7, 2017. The Supreme Court agreed with the deceptive argument of “to protect taxpayers’ money” and based on this, it proceeded to grant the petition. This is quite interesting. However, what the Supreme Court did not see or address before granting the petition is the question of what will happen if the Liberty Party does not win its complaint at NEC or what will happen to the constitutional transitional arrangement, and to a large extent, the democratic process and stability of Liberia if the presidential runoff is not held as in keeping with the 1986 Constitution? By granting the petition on the basis of probability, the court has allowed itself to be drawn into a perceptional argument of “to be or not to be” which is not part of or within the province of its constitutional responsibility.
With this position, I disagree with the Supreme Court because it will be absolutely difficult if not impossible for the Court to extricate itself from any further perceptional argument that may arise on the basis of either technical constitutional or procedural error during the trial at the NEC. The key constitutional condition under which a petition for a writ of prohibition will lie in the Liberian jurisprudence is that there must be or exist: “an illegal performance of some act or that an inferior tribunal has proceeded by wrong rules or illegally assumed an authority and power not delegated to it by law.” Where is the evidence that illegal performance or the assumption of power not delegated to the NEC?
Besides, the Liberty Party’s complaint also woefully failed to raise squarely which specific statutory or constitutional provision that has been violated or abused by the National Elections Commission for which a petition for a writ of prohibition will lie. Instead, what the petitioner complained of, and which it believes could become injurious to its rights, if any, claim that the NEC has set November 7, 2017, as the new election date for the presidential runoff and has brought into the country ballot papers while its complaint is being investigated. What must be noted here is that the authority to set a new election date for a presidential runoff not later 15 days after the first round of results is exclusively the responsibility of the NEC consistent with Article 83(b) of the 1986 Constitution and must take place on the second Tuesday following. The second Tuesday following could be within 8 days if the results are announced for instance on a Monday or within 14 days if the first round of results is announced on a Wednesday. It does not necessarily
have to be on the 15th day after the close of the first round of the elections. Therefore, the authority to set a date for a presidential runoff is not illegal and cannot be a subject of a judicial review or interpretation, let alone a subject of a petition for a writ of prohibition. What could be illegal, however, is either the wrong calculation or misunderstanding of what is the “second Tuesday following” “the not later than the 15 days” interpretation as used in Article 83(b) of the 1986 Constitution. What is intriguing is that the Liberty Party’s petition did not complain about the misinterpretation or misapplication of the phrase: “second Tuesday following or not later than 15 days” following the first round of results, instead, it is challenging NEC’s authority to set a new date for a presidential runoff in the face of its complaint.
In its complaint before NEC, Liberty Party complained of alleged frauds said to have occurred in 13 of the over 5000 polling places and that while the hearing is being conducted by NEC to establish the veracity of these alleged electoral irregularities, NEC should not be allowed to set a new date for a presidential runoff until the matter is properly adjudicated. It, therefore, asked the Supreme Court to play a stay order on all actions and activities regarding the holding of the November 7, 2017, presidential runoff pending the conclusion and determination of its complaint at NEC.
Chapter 6 section 6.1 of the New Elections Law vests exclusively in the NEC the power and authority to be seized of all electoral complaints. Chapter 6 expressly states: “ Any political party or candidate who has justifiable reasons 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 (7) days after the announcement of the results of the elections. And the requirements for the filing of the complaint are provided for under sections 6.1 and 6.2 as follows:
Section 6.2(1) Time and schedule state: “ The Commission upon receipt of the complaint of the contestant shall within thirty (30) days cite the parties; conduct an impartial 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. (2). Effect of determination. The decision of the Commission shall have the following effects: (a). If any person returned is declared not to be duly elected, but has already assumed such office, shall cease to hold such office. The Liberty Party’s complaint is within confines of 6.1, whereas the power and authority to investigate the complaint by the NEC is consistent with chapter 6, section 6.2 of the New Elections Law. Therefore, there has been no violation of any law or the abuse of judicial or administrative discretion by the NEC in exercising its authority to set a date for the presidential runoff. The Supreme Court of Liberia although has the constitutional authority to be seized of a remedial process, not least a petition for a writ of prohibition, notwithstanding, that constitutional seizure of a petition for a writ of prohibition is not absolute unless there is a clear showing of an abuse of judicial discretion or that an inferior tribunal proceeded by wrong rules and the party asserting such claims must demonstrate or specifically plead that abuse of judicial discretion..
The Liberty Party’s petition would have presented a sound constitutional argument if it had challenged not the authority to set a new date on the “second Tuesday following” but the miscalculation or misunderstanding of the phrase: “not later than 15 days” which the NEC construed to mean 15 days added to October 10, 2017 and for which it has set November 7, 2017, as the second Tuesday following. The petitioner should have challenged the miscalculation and not the authority to do so. The Supreme Court did not address the miscalculation of the new election date in details.
As regards the petition itself, it must be noted that despite its supremacy powers, the Honorable Supreme Court of Liberia has no constitutional authority to extrapolate an illegal usurpation of or arrogation of judicial power by an inferior tribunal that has not been squarely raised in a petition for a writ of prohibition to lie. The setting of a presidential runoff on the second Tuesday following as in keeping with the 1986 Constitution cannot be construed or treated as an abuse of judicial discretion or considered as “proceeding by wrong rules” unless the petition challenges the calculation of the date set.” There’s a difference between proceeding by wrong rules and setting a wrong date. The petition did not say NEC set a wrong date or proceeded by wrong rules. This makes the petition a product of unpalatable narratives, not supported by any law and is based on mere assumptions, half-truths and gossips without any tangible evidence to demonstrate how NEC proceeded by wrong rules or has taken or adopted a proceeding incompatible of chapter 6 sections 6.1 & 2 of the New Elections Law. The petition was therefore premature and had no legal basis. This brings us to the question of jurisdiction and the admissibility of the petition itself. Somewhere in this article, we cited and heavily relied upon the wisdom of Professor Justice Banks when it comes to the question of jurisdiction. In article 2 of the 1986 Constitution, the Liberian Supreme Court has four constitutional powers, namely, the power to review, interpret, declare any treaty, convention, protocol, and law unconstitutional, and when it does so that power and authority becomes “supreme”., meaning, the Liberian Supreme Court is infallible and it is the only authority that can correct itself when it comes to the review, declaration and interoperation of any law.
However, despite its infallibility character as a Constitutional Court under Article 65 of the 1986 Constitution, and the finality authority of all constitutional and factual issues, under Article 66 of the 1986 Constitution, the Liberian Supreme Court lacks the constitutional authority to declare the 1986 Constitution unconstitutional or any of its provisions thereof, let alone the power and authority to prohibit, inhibit or suspend any provision of the 1986 Constitution. The power and authority to suspend any provision of the 1986 Constitution is exclusively a legislative decision and can only take place if the executive headed by a sovereign President of the Republic of Liberia makes such request in the national interest. And this can only happen where there is a “clear and present danger” to the peace and security of the Liberian state and its people. See Articles 85, 86 and 87 of the 1986 Constitution.
The Presidential runoff slated for November 7, 2017, is constitutional under Article 83(b) and no law or remedial process can abort or stay such constitutional process. The Supreme Court in my personal opinion as a creature of the very 1986 Constitution, as it is with the Elections Commission under Article 89 of the 1986 Constitution, lacks the power and authority to prohibit, inhibit and abort an secluded constitutional function or a process as in the case of Article 55 which has to do with the appointment of justices of the peace and notaries public, Article 57, which makes the president the chief architect of Liberian foreign policy and Article 58 which makes its constitutionally mandatory for the president on the fourth working Monday in January of each year to present the administration’s legislative agenda. A presidential runoff date when properly calculated, set and declared, certainly cannot be prohibited by means of a remedial process as in the case of the constitutional articles cited inter alia. The source of this argument comes from Article 83(b) of the 1986 Constitution which expressly states: “All elections of public officers shall be determined by an absolute majority of the votes cast. If no candidate obtains an absolute majority in the first ballot, a second ballot shall be conducted on the second Tuesday following. The two candidates who received the greatest numbers of votes on the first ballot shall be designated to participate in the run-off election.” The constitutional expression of “If no candidate obtains an absolute majority in the first ballot, a second ballot shall be conducted on the second Tuesday following” means the holding of a presidential runoff on the second Tuesday after the declaration of the first round of results not later than 15 days as provided for under Article 83(c) of the 1986 Constitution is constitutionally inviolable. The inviolability of the holding of the presidential runoff on the second Tuesday following October 25, 2017, which is November 7, 2017, cannot be prohibited, inhibited, stayed or suspended by a remedial process. The suspension of a constitutional provision is an executive function which can only be granted by the legislature and therefore cannot be ordered by a judicial authority.
Therefore, the issuance of a remedial writ whether Alternative or preemptory, staying a constitutional process as in the case of Article 83(b) which sets the second Tuesday after October 25, 2017 as the date for the holding of the presidential runoff amounts to the suspension of said article and the assumption of an executive function. The Honorable Supreme Court of Liberia is without any constitutional authority to order a stay or abort a constitutional scheduled process. In my opinion, which again is not the law, the complaint by the Liberty Party alleging electoral irregularities in few of the over 5000 polling centers certainly cannot be used to prohibit or stay the holding of the November 7, 2017, presidential runoff. Moreover, this cannot be construed and treated as something that poses a clear and present danger to the stability of Liberia.
Also, the Liberty Party petition did not seek the interpretation of Article 83(b) or chapter 6 section 6.1 and 2 of the New Elections Law. Instead, it simply brought to the attention of the Supreme Court that it has filed a complaint with the NEC and therefore, November 7, 2017, presidential runoff should be aborted pending the determination of its complaint. How the holding of November 7, 2017, Presidential runoff will injure the political interest of the Liberty Party which is nowhere near the two political parties in the runoff is not stated.
The Supreme Court of Liberia can only interpret the 1986 Constitution or a provision thereof, or decide how the framers intended Article 83(b) and (c ) and the amendments if any if it is squarely raised in a petition titled “in re constitutionality”. But since the petitioner did not seek any clarity or interpretation of this provision, the Supreme Court lacks the constitutional authority to raise suo motu the interpretation of any question that is not a subject of a petition, let alone the interpretation of Article 83(b) and (c) which were not part of the petition filed by the Liberty Party. The judicial phrase:” the court is requested to take judicial notice of the law” as commonly used by most lawyers both in their pleadings and during trials does not make the court a “research agent” for the party alerting the court, instead, it means the court should be cognizant of the stated or undisputed principle of law regarding such issue being raised. It also does not mean that the court should sua sponte interpret a statutory or constitutional provision which has not been a subject of a petition as in the instant case. Therefore, I strongly believe that the interpretation of Article 83(b) and (c) which was not a subject of petitioners’ petition places an unnecessary burden on the court and I believe the court should not have allowed or concerned itself with such headache.
Be that as it may, I am somewhat flabbergasted if not frustrated by the fact that the NEC too did not do well in properly defining and defending its argument before the Supreme Court. For instance, the NEC legal team which is headed by some of the most respected professors of law did not do more to expose in their returns the flaws in the purported petition. The team did not raise the question of legal capacity or legal standing with a motion to dismiss especially so where the petition alleges that it was filed on behalf of all of the representatives of the Liberty Party without any legal instrument to support such claims. And because of this, the Supreme Court adopted the salient legal maxim that says” a court of law will not do for a party what the party ought to do for its self.” This legal maxim is meant to define the impartial and credible nature of a court of law in an adversarial system as a neutral umpire. It is pathetic that the NEC ignored the real debate and cited two outdated Supreme Court opinions recorded in Parker v. Warrel, 2LLR525 (1925) and Boye v. Nelson 27LLR174 (1978) and made no further efforts based on its returns to look for the latest interpretation or definition of a petition for a writ of prohibition.
Further, the NEC woefully failed to be progressively assertive and innovative in attacking the flaws contained in the purported complaint filed by the Liberty Party. The NEC also failed to invoke chapter 6, section 6.2(5)(a) and (b) found on page 130 of the New Elections Law which state that o decision that an election is a void shall be made: (a). On the ground of any election offense committed by a person other than the candidate and without his knowledge or consent; or (b) on the ground of an election offense other than bribery or corruption. In the Liberty Party’s complaint before the NEC, it did not specifically name any of the presidential or representative candidates who were either directly or indirectly involved with irregularities or frauds. This makes the entire complaint nothing but a mere speculation but the NEC failed to raise this salient issue or invoke the aforesaid law by means of a motion to dismiss.
By failing such a simple task, the NEC shot itself in the leg, removed its argument from serious contention and restricted itself to the outdated definition of a petition for a writ of prohibition which did not take into account the authority of the writ to “discourage, avert, undo what has already been done” as recorded Sesay vs. Badio, 37 Liberian Law Reports (37LLR, 359), and syllabus 9(1995). The Court, therefore, left undisturbed the limited understanding and interpretation of the definition of a petition for a writ of prohibition by the NEC.
As regards the interpretation of the constitutional phrase: ”Second Tuesday following the expiry of time” provided in Article 83(c ) of the 1986 Constitution to mean the time within which the NEC had to announce the final results of the first ballot, I am in full agreement with the NEC and total disagreement with the Honorable Supreme Court’s interpretation. The phrase: “expiry of time” as used in Article 83(b) referencing Article 83(c) refers to a singular period which is the phrase: “not later than 15 days” within which the final results of the first ballot shall have been announced for a runoff to be set on the second Tuesday following. It is difficult to decipher as to how the “expiry of time” as used in Article 83(b) which refers to a singular constitutional period is construed as “scheduling of the runoff election to the events of Article 83( c) as construed and interpreted by the Honorable Supreme Court of Liberia.
Moreover, the expiry of time is somewhat synonymous to what is normally used in lease agreements or contracts as “effluxion of time” which according to the Nolo’s Plain English Law Dictionary means the normal expiration of a lease due to the passage of time, rather than due to a specific event that might cause the lease to end, such as destruction of the building. Therefore, as a way of delving into this argument, we must first define what is specifically meant by the phrase: “expiry of time”. According to Article 8 of the EC Merger Control Regulation: Rights of Defence, a Critical Analysis defines the Expiry of Time, as a time period calculated in working days and shall expire at the end of its last working day. The last working day of the “not later than 15 days, is the 15th day after the October 10, 2017 elections which was on the 25th of October 2017. It is difficult to comprehend as to how the expiry of time which is the last working day of the “not later than 15 days” could have been subordinated to or conditioned upon the events of Article 83(c) when the expression there is “expiry of time”. The NEC’s interpretation, in my candid opinion, was in consonance with the intent of the framers of the 1986 Constitution on the ground that the interpretation of any constitutional or statutory provision is conditioned upon four basic principles, namely (1) the actual text and wording of the constitutional provision or phrase, (2) the purpose and intent of the framers. For instance, the framers used the phrase: “expiry of time” and not expiry of events or conditions in Article 83(c). The constitutional emphasis and attention are placed on the word “time” which must expire for the NEC to set a presidential runoff date on the second Tuesday following. The purpose was that the expiry of time would occur when all of the results from the first round of elections would have been tabulated and the intent was that the NEC would be in the proper position to determine and declare the winners of the two political parties that would be in the runoff. I am in full agreement with the Supreme Court that Article 83 (c ) sets out a series of events but strongly disagree that each of the events cannot be separately and distinctively interpreted and declared. In the case: Selena Mappy-Polson v. RL decided March 3, 2017, the Supreme Court dispensed with or departed from the constitutional construction tradition of interpretation by setting aside the general provision principle of chapter 5, section 5.1 of the Code Of Conduct and confined and restricted itself within the bounds of the interpretation of section 5.2(a) to mean all public officials even though there are specific designations of the categories of public officials named therein. By the Selena Mappy-Polson’s interpretation, the expiry of time does cover or extend to, in my view, the series of events under Article 83(c). In that same opinion, Professor Mr. Justice Banks and Madame Justice Wollokolie dissented. Professor Mr. Justice Banks dissenting, principally argued that that the law was discriminatory and the interpretation took into account the specific provision of section 5.2(a) rather than the general provision of section 5.1 of the Code of Conduct, whereas, in the case of Madame Justice Wollokolie that provision of the Code of Conduct which was in conflict with the 1986 Constitution, according to her, should have been stricken off to conform to the other sections that were not in conflict with the Constitution. However, the argument that prevails and which is now the law controlling is the specific provision interpretation of section 5.2(a) of the Code of Conduct. That Supreme Court opinion has not been recalled and so it remains the law of Liberia. So then, why will a specific provision of “expiry of time” be construed and conditioned upon the events contained in Article 83(c ) and not a particular period or event as it is construed by the NEC’s interpretation of Article 83(b)? It must be noted that the Supreme Court of Liberia since its inception in 1847, has consistently held in numerous cases that it lacks the constitutional authority or power to extrapolate the intent of the legislature beyond the specific wording of a statutory or constitutional provision when it comes to interpretation. This being the case, the Supreme Court should have been more directly concerned with the singular nature of the constitutional phrase: “expiry of time” and the condition or period appertaining thereto, within which the Second Ballot should have been conducted rather than with the satisfaction of all of the conditions set out under Article 83(c). The reason is that the Supreme Court has no authority whatsoever to add, subtract, modify or alter the actual intent and purpose of a constitutional or statutory provision. See Mensah et al v. Wilson, 34LLR 100, 110-111(1986); Doe et al. v. Randolph et al, 35LLR 724,735(1988); International Trust Company of Liberia v. Doumouyah et al, 36LLR 358,364(1989).
Besides, the Honorable Supreme Court of Liberia has held in the case: ”West Africa Trading Corporation vs. Airline  LRSC 23; , 25 LLR 3, 7 (1976) that :“lawmakers must be said to have intended only what they wrote and nothing more or less; hence, the Court has no alternative but insist upon strict compliance with the law as it was passed.” The Constitution as it was drafted refers to the “expiry of time” which is a singular period within which the second ballot should have been conducted and not to the series of conditions under Article 83(c ).
I also find it difficult if not impossible to agree with the esteemed jurists of the Honorable Supreme Court’s usage of the phrase: “This court is of the view…” which from all indications appears to be an interpretation that is bordered on the judicial pedestal of hypothesis or nothing but a fishing expedition on grounds that Article 2 of the 1986 Constitution exclusively vests in the Honorable Supreme Court of Liberia the power to review, interpret and declare any treaty, protocol or convention unconstitutional and the power and authority to give meaning and effect to any statutory and constitutional provisions. That said, the Supreme Court’s interpretation of a constitutional or statutory provision must be “certain, definitive and categorical” and not an interpretation that is based on “this court is of the view” which to a large extent is absolutely uncertain, speculative and unconventional within the general construction theory of interpretation.
It is an indisputable argument that the authority to determine and declare results based on valid votes cast and the power to set a new date for a presidential runoff is exclusively vested in the NEC consistent with Articles 83(b) and (c) of the 1986 Constitution. This is only possible based on the number of valid votes cast in favor the two political parties that will be designated for the runoff. What is generally not applicable in determining the number of valid votes cast in an election is an argument that contested or disputed votes in one electoral precinct or polling place or places will automatically apply to or affect all other precincts or polling places where there are not contests over valid votes cast. In the Liberty Party’s complaint before NEC, it specifically named a number of polling places where it claimed alleged frauds and irregularities had occurred during the voting on October 10, 2017. Under the electoral law, the Liberty Party, therefore, has tailored its contest to a number of restricted precincts within the over 5000 electoral districts of the NEC. The Liberty Party complaint, therefore, does not cover all of the electoral districts or all of the precincts therein. In my opinion, the writ of prohibition should have only been issued against contested results coming from areas named in the Liberty Party’s petition and not against the entire results. In disputed elections results as in mathematics exams, every polling center, precinct or a problem stands on its own and is dealt with separately and distinctively and the result therefrom stands out independently and may only be added or included to the aggregate sum or average if there are no contests. A wrong step or irregularity in a single mathematical problem as may be the case at an electoral precinct does not affect the undisputed results of the other problems or precincts where there are no disputes. Therefore, an alleged complaint of fraud or irregularity reported at one polling center, for instance, in District#2, River Gee County will not be used to dispute the outcome of the results from District#2, Grand Cape Mount County where there are no claims of electoral frauds or irregularities.
Based on the aforesaid analysis, I am absolutely unable to agree with the Honorable Supreme Court in its interpretation of “valid votes cast” when it said as follows “In other words, where it has not been confirmed that two presidential tickets indeed received valid votes cast, the NEC cannot properly designate them to take part in a runoff election. Therefore, where a complaint is pending before the NEC, as in the instant case, alleging that the conduct of the elections was marred by irregularities and fraudulent acts thereby raising doubts on votes cast, this Court wonders how the NEC, a body mandated to conduct investigation into the complaint, could properly conclude that the votes cast were indeed valid, and thereupon designate two presidential tickets to participate in the runoff election?” By asking this question, the Supreme Court has cast a doubt on all of the results including results coming from polling places and precincts that are not in dispute. Moreover, the court has intentionally granted the Liberty Party’s argument that it is in total disagreement with the NEC on how it has been able to determine the qualification of the two presidential tickets in the face of its complaint, even though the complaint does not cover all of the over 5000 polling places. Applying the doctrine of necessary implication which dictates that what is implied is as much part of what is expressed, the Supreme Court of Liberia has inarguably disqualified all of the results including the two presidential tickets which were determined on the basis of valid votes cast and subsequently designated by the NEC for the November 7, 2017, presidential runoff due to pendency of the Liberty Party’s complaint. The Court further added: “With this guidance, this court cannot comprehend how the NEC decided on the two designated presidential tickets with the greatest number of valid votes cast on the first ballot when the NEC is yet to finalize the investigation into the complaint of alleged irregularities and fraudulent acts filed by the petitioner. In our opinion, the NEC must first investigate the complaint filed by the petitioner; this is the only way the NEC can determine and conclude as to which two presidential tickets received the greatest number of valid votes cast in order to designate them for the runoff election.” Based on the foregoing interpretation, the Honorable Supreme Court has temporarily dismissed the qualification of the two presidential tickets which have been duly determined and declared by the NEC pending the final determination of the Liberty Party’s complaint. This is troubling because the authority to revoke the exercise of the power and authority vested in the NEC to determine and declare elections results, not least the qualification of two qualified presidential tickets for a runoff is a legislative function through a repeal of the ACT creating the NEC and cannot be a subject of a judicial interpretation. In other words, by the court asserting that “NEC must first investigate the complaint filed by the petitioner or all complaints growing out of the first ballot” before making any determination and declaration of results, the Supreme Court has unconstitutionally suspended or taken away the power and authority exclusively vested in the NEC under Articles 83(b) and (c) of the 1986 Constitution to determine and declare provisional and final elections results not later than 15 days after the first ballot. This means if there are about 600 complaints from the representative candidates and 18 complaints from the 20 presidential candidates, the NEC will first have to investigate all, make a final determination and if there are appeals to the Supreme Court, wait for the final outcomes of all the appeals from the Supreme Court before the NEC can make any declaration of results. In my opinion, which of course is not the law, I believe this is not what the framers of Articles 83(b) and (c) of the 1986 Constitution had intended and for this reason, I cannot help but express my total disagreement with the Honorable Supreme Court of Liberia.
Furthermore, I disagree with this venerated bench of revered men and women of characters on their suo motu interpretation and application of the principle of due process of law which was not squarely raised in Liberty Party’s petition. In the petition, Liberty Party writes in count 7 as follows: “In utter disregard to the rights of the petitioners and due process of law, the respondents are proceeding with the runoff/second round elections…”
The Liberty Party only cited as evidence a press conference held by the NEC announcing the date for the presidential runoff on November 7, 2017. Due process of law contains a barrage of fundamental legal conditions which must be violated or illegally restrained for anyone to make such a claim and to be heard, they include (1) denial of notice, denial of the right to represent oneself or a counsel of one’s choice, lack of opportunity to present evidence on one’s behalf or produce witnesses to testify on one’s behalf in a trial or the lack of the opportunity to face one’s accusers and batter and confront them with questions on the allegation made, among others.
The Liberty Party’s petition before the Supreme Court of Liberia did not cite any of the cardinal principles of due process of law that was allegedly violated by the NEC, instead, it contained a number of sterile narratives that are not supported by any law. Even more interesting is the fact that NEC did not respond to Liberty Party’s letter of October 24, 2017, which should have formed the basis for the Liberty Party to make a follow-up to its communication, but something which it woefully failed to do. This was a breach or a complete departure from the normal civilized approach to the exchange of communications. And despite this, the court proceeded to be seized of the complaint merely on the basis of the two newspaper clippings attached to the petition as evidence of the setting of November 7, 2017, presidential runoff date by the NEC. The setting of the November 7, 2017, presidential runoff date by the NEC did not violate any of the cardinal elements of due process of law cited inter alia. The Supreme Court should not have proceeded to interpret the violation of due process of law especially so where the petitioners merely cited its right to due process without specifically stating which element of the principle was being violated.
Moreover, the Supreme Court ignored a cardinal principle of our jurisprudence which states that one cannot be bound or concluded by a judgment to which he/she is not a party. See Tubman v. Murdoch, 4LLR179 (1935). However, in the petition filed by the Liberty Party, the Supreme Court of Liberia granted the peremptory writ of prohibition that has affected and continues to substantially injure the constitutional rights of the Coalition for Democratic Change (CDC) to participate in a presidential runoff on November 7, 2017, without first mandating the CDC to intervene prior to rendering such judgment. As part of its sacred constitutional tradition, the Supreme Court of Liberia, in adhering to the due process principle, has always mandated parties that are perfectly situated and whose rights could adversely be affected or concluded by a judgment in a matter pending before it to intervene. Sadly, however, due to the acrimonious challenges which attended the filing of the petition, the Supreme Court inadvertently over sighted a fundamental constitutional requirement that must be met before a party can suffer any penalty or injury or before its constitutional rights can be taken away. See Article 20(a) of the 1986 Constitution. The CDC has been concluded by a judgment rendered against the NEC by the Honorable Supreme Court or is a direct victim of a collective restriction imposed on the NEC without being brought under the jurisdiction of the court of Liberia in total violation of its rights under Article 20(a) of the 1986 Constitution. By placing a stay order on the NEC to refrain from all actions and activities geared at holding the presidential runoff in which the CDC has a candidate, the order has inarguably affected and concluded the substantive rights of the CDC in a petition in which it was never a party. Incredibly, the law that hears before it condemns which the Supreme Court has consistently vowed to uphold has however concluded the rights of the CDC and all representative’ candidates who participated in the elections without being given the opportunity to have their ‘day in court.’ What has happened is that the peremptory writ issued against NEC and the entire results of the elections of October 10, 2017 pending the final determination of the Liberty Party’s complaint clearly and inarguably invalidated and rendered ineffectual the entire results from the October 10, 2017 polls including those who have been declared winners as representative candidates. This, in my opinion, violates the due process of law principle of the 1986 Constitution.
Further, it is quite amazing that the court which continually said that it will not do for a party what the party ought to do for itself proceeded suo motu to cite Article 20(a) of the 1986 Constitution, Wollo v. Wollo, Mulbah v. Dennis, and other landmarked cases simply to support its interpretation of the due process of law principle which was never squarely raised in the petition for a writ of prohibition. Based on the aforesaid arguments and other salient constitutional questions whose answers I will defer, for now, I am unable to join thousands of my fellow compatriots to applaud and congratulate the Honorable Supreme Court of Liberia for its latest opinion. I think the petition should have been denied and dismissed, because it is nothing but a fishing expedition which is not supported by any valid evidence to prove that NEC arrogated unto itself power not delegated to it by law or proceeded by wrong rules, instead the petition is granted on the basis of “if the Liberty Party wins” which is not categorical, definitive and certain but rather projected and speculative and conjectural.
About The Author:
Sayma Syrenius Cephus is a member of the Honorable Liberian Supreme Court Bar, member of the Liberian National Bar Association(LNBA), member, European Criminal Bar Association(ECBA), European Fraud and Compliance Lawyers(EFCL), certified counsel, International Criminal Court(ICC),The Hague, African Court on Human and Peoples’ Rights(ACHPR), Arusha, Tanzania, International Law Association(ILA)(London, UK), and AEA International Lawyers Association(Madrid, Span). He is an intellectual, an active and experienced courtroom law, a social commentator and legal analyst.