Taking Notes from the Supreme Court’s Opinion On“Election Irregularities” In Bong

By Atty Philip N. Wesseh (PNW)

The word “irregularities” is self-explanatory that one may not have any difficulties to comprehend it. One can intuitively know that it mean, “something not being done the proper way or in the rightful or in accordance to laid down rules and procedures.” This was what I gathered as I perused the recent Supreme Court opinion in the case involving Dr. Henrique Tokpa and Madam Jewel Howard-Taylor about election irregularities in parts of Bong County where the two and others contested for the senatorial seat during the special senatorial election last December, in which Madam Taylor emerged victorious, but Dr. Togba Challenged on grounds of “irregularities.”

The holding of elections in a democratic setting requiresadherence to the rules governing such a process. Because of the delicacy and intricacy of the process, certain rules and procedures are made to guide the process and more importantly to make the results more credible. Although the Liberian constitution sets the stage for those qualified to vote, for which laws have been made to ensure one’s participation and also guide the process.

Article 80(c) of the Liberian Constitution provides that “every Liberian citizen shall have the right to be registered in a constituency, and to vote in public elections only in the constituency where registered, either in person or by absentee ballot.” Notwithstanding, there are procedures and rules such as registration cards, photo-taking and places to vote that must be adhered to. And so if these rules and procedures are not followed, then, there is a problem that could nullify the results in some areas.

In the case of the Bong County polls, there are allegations that certain rules were not adhered to, something for which, Dr. Tokpa filed protest against the result in District 7. It was alleged by one observer that NEC staff permitted unidentified persons to vote. It is also said that the NPP’s candidate (Sen. Taylor) was erroneously given forty-one (41) votes in the said polling place.

Another witness of Dr. Tokpa said he observed the reopening of the poll after it was officially declared closed at 6:00 p.m. The witness also testified that after the counting of the ballots, the NEC officers left the ballot-boxes unsealed until the following day. One other witness alleged, “I observed that when you present your card and your picture and your number were not in the booklet; NEC staff will register these people from the information on the cards and permitted them to vote.” Admittedly, the appellees (Madam Taylor’s) first witness, Ben Kerkulah, NEC’s presiding officer at Sanoyea Market, polling place# 5, said he permitted persons to vote whose names and photographs were not on the Final Registration Roll (FRR).

In his official letter of complaint to the District Election Magistrate, dated December25, Dr. Tokpa said,” I write to file this document to your office so as to protest and further challenge the just ended special senatorial elections result in Electoral District #7 of Bong County. I received copy of the final result of votes counted in Lower Bong County, and such result was also presented to the public by and thru the campaign manager for the NPP’s candidate thus preceding NEC’s pronouncement. Please consider the below counts as my key points to justify my position in this process as follow.”

  • That the various numbers registered/recorded on tally from District #7 are over stated for and on behalf of the NPP’s candidate in the election.
  • That I challenge the agreements between and among the various numbers on the tally sheets and the ballot papers in the various boxes from District #7 do not correspond with the photos checked in the Final Registration Roll (FRR).
  • That I challenge all checks done in the photos booklet (Final Registration Roll-FRR) are photos of people who fully took part in this election to match the numbers registered on the tally sheets.

In view of the above, I therefore request a recount of the ballot paper in the entire electoral District # 7 so as to protect the credibility of the NEC and its officials in Bong County.

Upon hearing the matter, the election magistrate rendered his ruling in which he denied the appellant’s request for a recount of the entire district # 7. The magistrate stated that the erroneous calculation on the record of the count did not influence the candidates’ results and should be considered a harmless error; that the recording of the voters names and number to the Final Registration Roll (FRR) was not a violation of the NEC’s procedures since all citizens who have attained the age of 18 years and above with a valid voter registration card may vote at any elections in the voting precinct or electoral district to which he is registered; that the issue of a recount is not granted by the request of an aggrieved party rather, same is granted by operation of law; and that there being no substantial evidence to prove the appellant’s suspicion of irregularities, the request for recount was denied.

It was upon that, that the appellant (Dr. Tokpa), excepted to the ruling of the magistrate and appealed to the Board of Commissioners of the National Elections Commission, challenging the magistrate’s ruling stating that the magistrate inadvertently overlooked the evidence and the testimonies of his witnesses that the results were tampered with; that the polls were left opened after 6:00 p.m; that the NPP did campaign on the day of the elections; and that two of the appellant’s valid votes were erroneously declared invalid. Before the Board, he prayed for re-run of the election in district 7, something denied by the board which affirmed the Magistrate’s decision.

On May 26, 2015, the Board rendered its ruling affirming the decision of the elections magistrate which denied the appellant’s request for a recount of the votes for the entire District # 7, stating that the appellant did not present evidence of elections irregularities to warrant a re-counting said district. The court said it noted that the Board did not pass on the appellant’s prayer for a re-run but denied the request for a re-count. It was based on the board’s decision that the appellant took flight to the Supreme Court, stating that the Board admitted reversible error. The Court, having heard that indeed election irregularities were committed in three (3) areas within District # 7, Bong County namely, Sanoyea Market Precinct, polling place # 5, Yarbayeh Public School and Beletanda Palava Hut polling precincts; and in accordance with the principles of law stated supra, and more importantly , in the absence of any complaint or evidence of irregularities in the remaining twenty-four voting precincts of District # 7 we hold that the ballots cast in those three areas having been compromised, a recount of ballots already cast and counted will not suffice to cure the irregularities; rather, a re-run or a repeat of the elections by voters registered in those precincts herein specified will restore the credibility of the election process thereat, and it so ordered.

In his (Bill Of Exception) before the Highest Court, the appellant said: That the Honourable Board of Commissioners erred and made a reversible error when the Board failed to reverse the ruling of the Magisterial Hearing Officer when they ruled that appellant failed to show sufficient proof his allegations when in-fact all that was alleged in the complaint was testified to by witnesses and corroborated by other witnesses who were not associated with the appellant or his campaign team, but for other candidates and political parties, including some of appellee’s own witnesses;     That the Honourable Board of Commissioners erred and made a reversible error when the Board failed to reverse the ruling of the Magisterial Hearing Officer when they ruled that appellant did not show that the erroneous tabulation affected the votes of any of the candidates at polling place #2, in Kankalanta and that the erroneous arithmetic derivation of the total valid and invalid votes did not intent to influence or defeat any candidate’s result and can only be attributed to human error; when in fact there was alteration of the December 20, 2014 results at polling place #2 Electoral District 7 proved by the complainant during the hearing.

The appellant also said, “that the Honourable Board of Commissioners erred and made a reversible error when the Board failed to consider that the appellant proved the case by the preponderance of evidence when the appellant established both by oral and documentary evidence that the results were tempered with and as such there was a need for a re-run when the presiding officer at polling place 2, admitted that the change in the total ballots retrieved from the ballot box on December 20, 2014 which accounted for 48 ballots instead of 53 was an oversight, even though signed by him and all the candidates representatives present; That the Honourable Board of Commissioners erred and made a reversible error when the Board did not take into account the admission by the appellee’s 2nd witness in person of Eddie A. Queyateh when he admitted that he allowed 25 persons to vote when their names and images were not seen in the FRR, (Final Registration Roll).

In its review of the matter, the Supreme Court identified what it called four (4) pertinent contentions by the parties before them that have direct bearing on the disposition of this appeal. They are:

1)Unidentified voters being registered in a referral sheet attached to the Final Registration Roll (FRR) and permitted to vote in Sanoyea Market, voting precinct 6098, polling place # 5.

2) Votes being over stated in favor of Madam Jewel Howard Taylor at Kankalan Town voting precinct 6067, polling place # 2.

3)The allegation of NPP campaigning on the day of the elections in Yarbayeh Public School voting precinct 6126 and   4)The allegation of the polls being left opened after 6:00 p.m.

The court after its painstaking and marathon review process “ held that indeed election irregularities were committed in three (3) areas within District # 7, Bong County namely, Sanoyea Market Precinct, polling place # 5, Yarbayeh Public School and Beletanda Palava Hut polling precincts; and in accordance with the principles of law stated supra, and more importantly , in the absence of any complaint or evidence of irregularities in the remaining twenty-four voting precincts of District # 7 we hold that the ballots cast in those three areas having been compromised, a recount of ballots already cast and counted will not suffice to cure the irregularities; rather, a re-run or a repeat of the elections by voters registered in those precincts herein specified will restore the credibility of the election process thereat, and it so ordered.”

It then concluded, “WHEREFORE and in view of the facts and circumstances, the laws and principles stated herein above and in consonance with the law that this Court is authorized to enter the requisite judgment that a lower tribunal should have rendered in this case, the NEC, this Court hereby declares null and void the ballots cast in Sanoyea Market precinct, polling place # 5, voting precinct code 6098, Yarbayeh Public School voting precinct code 6126 and Beletanda Palava Hut voting precinct code 6005, respectively and a re-run or new elections ordered in the said polling place and precincts, respectively, with the participation by registered voters within a period of sixty (60) days.  

Particular, of all of the issues raised by the court, I take interest in the matter concerning“unidentified persons who were permitted to vote” by the presiding officer. In its observation, the supreme Court pointed out.

The Court said that the NEC presiding officer did not comply with the provisions of the Manual quoted supra neither did he establish that the information on the voter registration cards of the unidentified persons corresponded with that of the Final Registration Roll (in terms of the voter identification number, name etc.) which would have made them eligible to vote. Rather, the presiding officer testified that he recorded the names and numbers of the unidentified persons on a ‘referral sheet’ which the Court deems a contravention of the Manual requiring that registered, eligible witnesses certify the identity of the unidentified persons before recording their names and numbers to an ‘additional sheet.’ The term additional sheet as stated in the Manuel implies a listing of certified unidentified voters in which detail information from the voter registration card is recorded and it compliment the Final Registration Roll (FRR). We must remember that the Final Registration Roll (FRR) is contained in a plastic envelop which we can certainly conclude was intended to safeguard the Final Registration Roll (FRR) from being altered, thus the requirement for the ‘additional sheet’ but with the caveat that eligible registered voters certified the unidentified persons.

The court said from the trend of the questions posed to the presiding officer with respect to the number of unidentified persons he permitted to vote, he should have known that it was in reference to the number of persons that had similar problem as the lady to their images being unidentifiable on their registration cards and not the number of voters that voted at that polling place.

Therefore, the court indicated that it out rightly reject the Board’s conclusion stating that 25 persons were allowed to vote and not 25 unidentified persons being allowed to vote. The witness’ assertions that he allowed 25 persons to vote who were not properly identified or certified by qualified registered voters of Sanoyea Market, voting precinct 6098, polling place # 5 is an erosion of the credibility of the elections and a discredit of the results therefrom.

Quoting Common Law, the Supreme Court said, it is said that“where electoral irregularities are so substantial to affect the outcome of the elections or put the results in doubt, the elections will be set aside.” As such it said, it is the holding of this Court that the appellant did prove electoral irregularity at the Sanoyea Market, voting precinct 6098, polling place # 5 and that the said irregularity substantially influenced and discredited the electoral results thereat.

As I said earlier, I take interest in this particular issue of permitting unidentified persons to vote who did not possess those items needed to make them eligible. Many times conflicts come about during elections because of similar situation. It is either there were more voters than those registered to vote, or that people not eligible to vote were allowed to vote, something that can render a process incredible, as during the time for president C.D. B. Kings, when there were more votes cast than those registered. For this today, Liberia has been recorded in the Guinness Book of Record for having fraudulent elections.

During that election, record showed that President Charles King won the 1927 presidential elections with a landslide victory that earned him a place in history – but different from what he might have imagined. The Guiness Book of Records (1982) qualified the elections as the most fraudulent ever reported in world history. Suffrage was constitutionally limited to some 15,000 citizens, but according to the official election results some 240,000 votes were cast in favor of Charles D.B. King. The following year, the defeated Presidential candidate, Faulkner, accused the King Administration of permitting slavery, slave trade and forced labor within the borders of the Republic. Eventually, that led to President King’s resignation in 1930.

I try to recall this ugly incident because the issue of those who voted and those are permitted to vote without the proper procedures to vote always spark off controversies, sometimes situations that threaten national security. Besides my interest in this matter is because of the pending 2017 election, which expect an unprecedented twist in the political history of this country as it will be the first time in many years for a sitting President to turn over an incoming one. So far, the process leading that electoral process has started with many declaring their intentions to contest.

It is not a gainsaying that the way and manner in which the late Samuel K. Doe’s government handled the 1985 General and Presidential elections also contributed to the civil strife in 1989. At that time, instead of the legal body organized to conduct the process and count ballots, the ballots were counted by a special committee, something diametrical to the electoral process. For that, the process was described as fraudulent. That is why matters and issues relative to elections should not be taken lightly or taken for granted.

And so it is necessary for all those involved, including NEC, political parties and members of the civil society to now begin the process by taking notes of some of the lessons learned and the issues raised in this legal battle to avoid people who do not acquire the proper voting documents from being permitted to vote; the issues of who should enter voting precincts, the sealing of boxes, as well as the issue of recount at the polling station the same day should there be a problem. Also, NEC should consider when to give remunerations to poll workers.

The irregularities observed by the court and others should make us to ensure that they do not occur during the 2017 process. Although there is no problem-free electoral process, we should ensure that we learn from these mistakes now for a credible process.

Since the court’s opinion, it is unfortunate that some of those who apparently did not read the ruling are masking ill-informed comments on the matter, some trying to compare it with other cases, when, in fact, they fail to realize that every case may not be the similar facts and circumstances, on which a decision is made. For example, there might be two homicide cases, but may not contain the same facts and circumstances, while it is true that both are homicide.

Also, there are some who are concerned about the cost of as re-run; let me say that this is the working of democracy. Democracy is capital-intensive. This is one of the things I learned while during Constitutional Law at the Louis Arthur Grimes School of Law at the university, when the instructor, Cllr. Cyril Jones said, “democracy is expensive.” and so to enjoy the tenets of democracy, we MUST be prepared to undergo the cost of it. This is why we must learn to avoid any additional cost of re-run

Until we begin to learn from past mistakes, we will continue to make those same mistakes, I Rest My Case.

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