— But Supreme Court cites threats to Liberia’s peace due to MOJ’s failure to investigate election violence
Surrounded by her Lawyers and supporters, Gbarpolu County Senator-elect Botoe Kanneh emerged from the Supreme Court to a jubilant crowd of predominantly women supporters, ecstatic that the Supreme Court of Liberia had ordered the Board of Commissioners of the National Elections Commission to announce the results of the Special Senatorial Election held in that county.
“I want to say glory be to God for the demonstration of transparency in the court ruling. I am so glad. It’s like tears of joy. It is a big [proud moment] for the women of Liberia to get a second female senator in the 54th Legislature. I believe that it is not only a proud [moment], but it is bringing more steps to the women of Liberia, that we will not be afraid of men this time around; that we are facing the challenge and we are ready to challenge the men.
But Kanneh’s victory has caused the Supreme Court to render an opinion about the recurrent, unabated and unchecked acts of electoral violence in the country.
In their ruling, Justices of the Supreme Court of Liberia labeled the continued failure of the Ministry of Justice to prosecute election offenders accordingly, as a threat to the country’s peace and existence. The Court opined that action by the Ministry of Justice led by Cllr. Musa Dean to downplay cases of electoral violence predicts a grim future for Liberia’s democracy and its people.
“We fear that if election violence is not handled decisively now, future elections in our country will be disaster-prone,” the Court’s five Justices wrote in a unanimous ruling relating to the Gbarpolu County electoral dispute case between Senator-elect Botoe Kanneh (appellant), Coalition for Democratic Change (1st appellee) and the National Elections Commission (2nd appellee).
The Court furthered that those given the authority of investigating elections offenses must give such action their due attention and must prosecute election offenders accordingly, “as failure to curb such excesses predicts a grim future for a democratic society where the people must choose their public leaders.”
It added that the Ministry of Justice has not made any pronouncement regarding the violence that allegedly took place in Gbarpolu and those suspected of instigating said violence.
“Those entrusted with the authority to investigate election violence must take cue from the mandate of the Constitution which sets timelines for the execution of electoral activities,” the Supreme Court rule.
The Court rebuke of the Ministry of Justice came as a result of an appeal filed by Senator-elect Botoe Kanneh, against the CDC and its candidate Rep. Alfred Koiwood, and NEC.
The case emanating from the conduct of the December 8, 2020 Special Senatorial Elections in Gbarpolu County, in which the 1st appellee, CDC, alleged that then independent candidate, Botoe Kanneh, violated the elections laws of Liberia by engaging in violent act, which violates Chapter 10, Section 10.6 of the Elections Law of Liberia. As such, CDC asked the electoral body to mete sanctions against her in keeping with the laws.
However, after the CDC filed its complaint before the Gbarpolu County Magistrate on December 21, 2020, it later filed several papers before the NEC Board of Commissioners, complaining of the magistrate’s inaction in assigning the complaint for hearing, and prayed for change of venue, among other things.
But the NEC Board of Commissioners, in a ruling on January 6, 2021, labelled “Interlocutory Ruling,” denied CDC’s application for change of venue on ground that they could only hear the matter after the trial/investigative tribunal had made a decision. The Board also informed the 1st appellee (CDC) that it did not cite any controlling law that requires the election to be stayed pending the outcome of its allegation of criminality against Botoe Kanneh.
Unsatisfied with such a ruling, CDC ran to Supreme Court and filed a petition for a writ of prohibition before the Justice in Chambers, requesting the Justice to issue a stay order to restrain and prohibit the NEC from conducting the rescheduled election in Nomodatanau, Gbarpolu County.
In the writ, which was granted by the Justice in Chambers, CDC argued that it motion for change of venue, summary proceeding and NEC’s decision to conduct the election without looking into their complaints was ultra vires, illegal and a path pursued by wrong rules.
Upon the Court order, the Election Magistrate in Gbarpolu County took charge of the matter on January 13, 2021, and began investigating the 1st appelee’s claims but counsels representing Botoe Kanneh raised the issue of the NEC’s jurisdiction to hear and investigate the matter of electoral violence as the CDC had alleged in its complaint.
Botoe Kanneh’s counsel, in their argument, asked the Election Magistrate to have the case dismissed based on subject matter jurisdiction.
“Seeing that we are at this point and this matter is now before us on jurisdictional issue, that particular exercise will not be done in the legal realm, so on that basis, we find that the NEC lacks jurisdiction on this matter because it is a criminal matter and this case is hereby dismissed,” the Magistrate ruled.
However, at the end of the ruling, 1st appellee, CDC, took an exception to the Election Magistrate’s ruling and appealed the ruling to NEC Board of Commissioners. The Board, in a ruling dated February 24, 2021, regarding CDC appeal, reversed the Magistrate’s ruling and ordered him to conduct a “full scale investigation” into the alleged election violence, as the case was under their jurisdiction as prescribed by law under Section 10.6 of the Elections Law.
Section 10. 6 states that: “Any person who carries away, destroys, conceals, or mutilates, or attempts to carry away, destroy, conceal, or mutilate any ballot paper, register, ballot box, election writ, certificate or returns of any official document made in connection with an election for the purpose of invalidating the result of such election is guilty of an election offense and punishable by a fine of Five Thousand ($5,000.00) Dollars or imprisonment for a period of five (5) years or both.”
The appellant, Botoe Kanneh, excepted to the Board’s ruling, announced and perfected an appeal to the Supreme Court. In their appeal, Botoe Kanneh’s lawyers argued that NEC, under the Constitution and statutory law, lacks police power as well as investigative and evidence gathering capacity to act against suspects of election violence which is an offense under the criminal law of Liberia.
They furthered that the Ministry of Justice had already assumed jurisdiction over the situation and the Elections Law does not permit the NEC to assume control over the criminal justice system, which provides for due process and the protection of the rights of the persons accused.
‘Not NEC, but Ministry of Justice has the power’
After entertaining arguments between both parties, the Justices ruled that, the Ministry of Justice being in charge of the investigation, “it would be untenable for the NEC to simultaneously conduct a full scale investigation of the same matter, which partakes purely of criminal allegations.
“Only the Ministry of Justice has authority to conduct such an investigation,” the Justices wrote. “We therefore hold that the Ministry of Justice, not having found and come up with a decision regarding the complaint alleged by the 1st appellee from December 8, 2020, up to the time of this opinion, it is only proper that the NEC proceeds to announce the return of the election in Gbarpolu County so that the County can be represented in the Legislature as the law requires.
“Wherefore, and in the view of the foregoing, the ruling of the Board of Commissioners of the NEC is reversed. The Board is ordered to proceed forthwith to announce the results of the Special Senatorial Election held in Gbarpolu County, in keeping with Section 2.9(G) of the Elections Law and to resume jurisdiction and give effect to this judgment. AND IT IS HEREBY SO ORDERED,” the Supreme Court Justices ruled.
Meanwhile, the Court agrees with the NEC Board of Commissioners that election violence, including the alleged illegal seizure and destruction of election materials, cannot be countenanced and violence in an electoral process is of a serious and grave nature, “as it does not only impede NEC in carrying out its constitutional mandate, but also leads to the erosion of the peaceful governance of the nation.”
The Court further ruled that it disagreed with CDC and its candidate’s argument that the Magistrate denied them due process for “failing to delve into the merits of their complaint.
“In this case, the 1st appellee (CDC) appeared before the Election Magistrate and was afforded the opportunity to be heard and give reasons why its complaint should not be dismissed for lack of jurisdiction as contended by the appellant,” the Court said. “In this light, the 1st appellee cannot contend that its due process right was denied because the hearing was decided on the appellant’s motion to dismiss.”
It added “furthermore, the 1st appellee has contended that the Magistrate ignored a second complaint filed by the General Town Chief of Kongba District and that said complaint was not investigated. We say that the record before this Court is devoid of any such complaint filed by the General Chief of Kongba District Town and the 1st appellee filed no such complaint on their behalf.”
According to the court, CDC is not the proper party to seek a remedy for the failure of the Magistrate to hear and determine that complaint. The Supreme Court opined that if the Town Chief had actually filed a complaint and his complaint was ignored by the magistrate, the Town Chief should have filed a complaint before the NEC Board of Commissioners to compel the Magistrate to hear and determine the complaint.
“Not having done so, the law presumes that the affected party waived his right to be heard. More besides, the 1st appellee has shown no standing to raise this issue on behalf of the Town Chief. This Court has opined that legal standing is a concept utilized to determine if a party is sufficiently affected to ensure that a justiciable controversy is presented to court,” the justices wrote.