By Abednego A. Davis and David S. Menjor
Amid tight security at the Temple of Justice yesterday, four of the five justices of the Supreme Court upheld the National Elections Commission’s (NEC) declaration of the runoff election, with a caveat, while another justice disagreed with his colleagues’ decision.
Chief Justice Francis Korkpor, Associate Justices Philip A. Z. Banks, Jamesetta Wolokollie and Sie-A-Nyene G. Yuoh were in favor, with Justice Kabineh Ja’neh against.
Justice Ja’neh’s argument was that the Liberty Party (LP) and the ruling Unity Party (UP) proved beyond reasonable doubt to substantiate their claims that the conduct of the October 10 presidential and legislative elections was marred by irregularities and fraud and warrants a rerun, of which the majority disagreed.
Outside of the courtroom, and presumably all across the country, people were glued to their radios and social media, listening attentively as Justice Banks read the majority judgment (opinion) of the Court.
As soon as Banks announced that there was not sufficient evidence by the complainants — Liberty Party (LP) and the ruling Unity Party (UP) — the quiet courtyard turned jubilant, shouting: “Thank God the court did not hold the country hostage!”
In the majority ruling, Banks said, “it is the considered opinion of this Court that the ruling of the NEC’s Board of Commissioners declaring a runoff election is hereby affirmed.”
Admitting that the Court’s investigation revealed that there were irregularities and fraud; he, however, noted that they were not of a magnitude that requires the October 10 results to be cancelled and a rerun ordered.
“That fraud is a generic term which embraces all the multifarious means which human ingenuity can desire and are resorted to by one individual to gain an advantage over another by false suggestions or by suppression of the truth. Fraud may be established not only directly but by inclusive circumstances which by their weight may constitute proof; from the facts and circumstances of the instant case, the 1st and 2nd appellants established proof that fraudulent acts were perpetrated at a few polling centers during the Presidential and Representative Elections on October 10, 2017,” he read.
“That notwithstanding our findings that indeed there were some irregularities, fraud, and violations of the New Elections Law, as well as the Rules and Regulations of the NEC, we hold that there is no evidence to show that those violations were in such magnitude that they rose to such level to warrant setting aside the results of the Presidential and Representative Elections held October 10, 2017, and ordering a re-run,” he said.
Banks explained that the Supreme Court repeatedly said parties making allegations are required to present evidence to sustain the whole and not just a fraction of allegations, adding: “In the instant case, the appellants presented some evidence in respect of certain violations; they failed to show, however, that the evidence pervaded the entire spectrum of the elections throughout or in a considerably wide or most parts of the country. This had the effect of substantially discounting the votes of the appellants and that absence of such violations and irregularities, the appellants would have been placed differently than how the NEC placed them.”
He said available Court records reveal that the UP and LP did not demonstrate that there was either a conspiracy by the NEC as an institution or that it sanctioned the conduct of the persons who were alleged to have committed elections violations or irregularities. “We do not believe that the evidence reached that threshold. As important as the evidence was, the fraud and irregularities complained of and shown by the testimonies of the witnesses were limited to the generality of the elections rather than indications of widespread intentional gross conspiracy conduct by the NEC as an institution. The evidence did point to a single candidate benefiting from the irregularities or fraud, or that the irregularities and fraud were orchestrated for the sole purpose of benefiting a particular candidate.”
Justice Banks, who read the majority opinion, said: “That the NEC is mandated and ordered to fully comply with the standards of publications of the FRR as in keeping with law and as discussed in the opinion: That NEC is mandated to conduct a full clean-up of the FRR to have it comply with the provision of the law; that the FRR be made available in published hard copies to all Election Magistrates and polling places across the country in accordance with law prior to any runoff election being conducted; that given the fact that the FRR is the only electoral document that speaks to the eligibility of voters, NEC is hereby prohibited from permitting anyone whose name is not found on the FRR to vote.”
He further recommended: “That any addendum to the FRR be limited to only those in NEC’s polling and counting manual; that poll watchers who are not registered at their places of assignment and whose names are not on the FRR should not be allowed to vote; that the chairman and members of the Board of Commissioners of NEC and any staff of NEC are hereby prohibited from any public or other pronouncements and utterances relating any matters which may grow out of runoff election or any statements in regard to any complaint filed with the NEC as could create any semblance of bias, prejudice or view of the case; and that the stay order issued on October 31, 2017, growing out of the writ of the prohibition filed by the first appellant, is hereby lifted and the NEC is ordered with the scheduling of the runoff election in accordance with the Constitution and the New Elections Law.”
Justice Banks blamed the other members of the Board of Commissioners of the NEC for not advising Cllr. Jerome George Korkoya, the chairman of the Commission, to recuse himself from the LP, UP versus NEC final hearing before the Board.
“Having listened to the arguments and contentions advanced by the parties, reviewed the facts and circumstances presented in the records, and examined the laws controlling the case; it is hereby pleased to note that the chairman of NEC, having been shown to made statements and utterances on the elections, while the complaints filed by the appellants (complainants) before the NEC still being investigated and awaiting disposition, and which could be viewed as bias and prejudicial, he should have recused himself from presiding over and sitting on the hearing of the appeal. The Board of Commissioners was therefore in error in denying the motion of recusal filed by the appellants,” Justice Banks noted.