Supreme Court’s Mandate To NEC On Bong Senatorial Election And Candidate Tokpa’s Withdrawal: Is There A Way Out?

By Atty Philip N. Wesseh (PNW)

Yesterday while en route to work, I had the opportunity to listen to the usual Truth FM morning program. One of the issues prominent during the morning discussion was that of the protest action emanating from the outcome of the senatorial elections by candidate Henrique Tokpa who challenged the result of the election that saw incumbent Jewel Howard-Taylor emerging victorious.

Basically, the concern of some members of the public relates to the withdrawal of Dr. Tokpa after the Supreme Court’s ruling in his favor, calling on the National Elections Commission (NEC) to conduct a re-run of the process in certain areas that are in dispute in the county for “irregularities.” The issue they have been brainstorming is whether or not it is financially judicious to still go ahead with the process in the wake of this withdrawal. Because of the mandate from the Supreme Court, NEC set September 29, for the re-run process in the country.

The concern of some members of the public relates to the withdrawal of Dr. Tokpa after the Supreme Court’s ruling in his favor, calling on the National Elections Commission (NEC) to conduct a re-run of the process in certain areas that are in dispute in the county for “irregularities.” The issue they have been brainstorming is whether or not it is financially judicious to still go ahead with the process in the wake of this withdrawal. Because of the mandate from the Supreme Court, NEC set September for the re-run process in the country.

It can be recalled that 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 BeletandaPalava 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 BeletandaPalava 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 stated earlier, the main debate on this issue relates to the ‘spending of money’ to still go ahead with the re-run when the one who prevailed in the legal proceeding has withdrawn from the process. For the laymen, they feel that there is no need to go ahead with this process. But the question is: how can this be done? Should NEC act unilaterally because of this withdrawal, ignoring the Supreme Court’s mandate? I say a BIG NO? Are there procedures to take for the Highest Court to act? This is the crux of the matter. This is the million dollar question.

This is why I have decided to join the debate on this cost-saving measure, as it borders on legal matter and procedures. In one of my previous articles on this matter, I said this was “RES NOVA” in our judicial and electoral process, where the court ruled for a re-run and the candidate who prevailed for the re-run, days later announced his withdrawal from the process, only because he got justice.

This, for me, imposes a serious challenge to both the judicial and electoral process because it is something new in this country, as I know of no precedent or “STARE DECISIS” to invoke. Owing to this, where do we really stand in this intricate situation? Some are arguing that Dr. Tokpa and Madam Taylor were not the only candidates in this race, and therefore, the process should go ahead.

Yes, as this may sound to reason, the participation of the protestor or complainant would add impetus, to really establish as to whether or not the issue of irregularities, as raised by him before NEC and the Supreme Court. Technically, the point to note is that the others, who participated, did not raise any issue or filed protest. As such, they will have no stake in the process, as the protest would be a “two-man show.”

Again, since this is RES NOVA to us, how do we go about saving cost? Should NEC inform the court of this development through the appropriate legal instrument or procedures since Dr. Tokpa officially informed the Commission of his withdrawal, to put the court in a position to act because it was the one that gave the mandate for the re-run.

Indeed, this is new to our system. Notwithstanding, experts can brainstorm to find a way out. I do know that democracy is capital-intensive. But this one, there is high possibility to save cost. Until something is done in this RES NOVA situation, I Rest My Case, as law is not static, but dynamic and that law is reasoning.

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