6 December 2011
Against the testimonies of fair play of more than 4,000 electoral observers, the opposition Congress for Democratic Change (CDC) contended that the 2011 presidential election was fraught with vote-rigging in favor of the ruling Unity Party (UP). The series of investigations the National Elections Commission (NEC) conducted based on “evidences” CDC adduced – investigations, which Carter Center’s observer team affirmed as standard – found no evidence of fraud. However the party remained unperturbed, prompting its counsels to take the matter to the high court as party operatives hold street protest rallies, concomitantly, one of which became violent. Now, the court has handed down the non-appealable verdict. The Analyst, reports.
The Supreme Court of Liberia says based on ‘evidence adduced, it has found no evidence of “massive fraud” in the 2011 presidential elections as alleged by CDC and that therefore the results of the election, as announced by NEC on October 25, remain legally binding. The high court’s opinion however called for the reprimanding of those poll workers who, without due authorization in keeping with the electoral regulations, opened ballot boxes to retrieve information they placed there inadvertently.
Background
CDC had prayed the high court to review evidence in its possession – which it said proved that NEC colluded with the ruling Unity Party to stuff ballots boxes of ballot papers pre-checked against the names of candidates Ellen Johnson-Sirleaf and Joseph Boakai – and grant it justice.
The party claimed that poll workers stuffed ballot boxes at two polling places in Monrovia hours after polls closed on October 11. Following a series of NEC investigations, which it said CDC filibustered through calls for postponement to gather more evidence, the commission acknowledged unintentional and isolated irregularities, but ruled that the evidence adduced was too infinitesimal to prove allegations of “widespread” and “systematic” fraud and vote-rigging, or alter the overall outcome of the presidential elections.
In response, CDC announced a boycott of the sequel president runoff due November 8 and on the eve of the runoff, staged a ‘peace vigil’, which degenerated into violence, leading to the death of one person and the injuring of several others. Since then, the party had conducted one street rally allegedly to inter the dead and planned to hold month-long street protest rallies to press for the annulment of the runoff results and to seek justice for the dead and the injured. A Mary Laurene Browne Special Commission of Inquiry the government set up to investigate the riot found the police and CDC culpable of visiting violence upon the nation and call for the dismissal of the director of police.
The commission, on the other hand, prevailed on CDC to stop the violence and cooperate with the government in restoring peace and rehabilitating the young people who were involved in the violent confrontation with police. The government heeded the commission’s advice, but CDC called it “bias” and “partisan”. All the while, the party was in the high court seeking annulment and justice. Now all that is over; at least in keeping with the Liberian judicial system, making any subsequent public disturbances unfounded and anti-peace, according to observers.
Supreme Court ruling
“In the case before us, the NEC Chairman, upon receipt of the complaint, determined to traverse several of the issues raised by the appellee in the complaint before forwarding the matter to the Hearing Officer for investigation of the allegations contained in the complaint. “We are of the opinion that the Chairman of NEC was in error in adopting such a procedure as it could have influenced the course of the investigation or the results of the investigation, notwithstanding the evidence could have been to the contrary,” the Supreme Court said. It then proceeded to second-guess the investigations NEC had conducted regarding CDC’s complaints, chiding the commission for a few fundamental legal missteps:
“We hold that in all such cases, where elections complaints are addressed to the Commission, whether through its Chairman or other Commissioners or officers, the Chairman or such other officers cannot preempt the investigation by setting out the position of the Commission on the issues raised before the Hearing Officer has had an opportunity to hear the evidence and determine upon the magnitude or sufficiency of the allegations and the evidence, and the matter appealed to the Board.
“No persons at the Commission, whether the Chairman or other Commissioners or officers should indulge in conduct which could be viewed as prejudicial or which could prejudice the outcome of the investigation or obviate the need for forwarding the matter to the Hearing Officer for investigation. Adherence to the course and procedure we have outlined here, and which we believe should be heeded by the NEC, not only conforms to the law and intent of the drafters of the Constitution and the Elections Law, but ensures due process of law referenced in those sacred documents.”
Nonetheless, in the case at bar, the court noted, its careful review of the records and the decision of the Hearing Officer revealed that the decision is in harmony with the Constitution and Elections Law, and that the procedure adopted by the Chairman of NEC neither influenced nor prejudiced the results and conclusions reached by the Hearing Officer. “Accordingly, we do not believe that the decision of the Hearing Officer should be altered on account of the Chairman’s procedural error,” the court said. “We shall now proceed to pass on the determining issue raised in this case: whether the appellee committed election violation(s) and fraud as claimed by the appellant and if yes, whether such acts were adequate and sufficient to warrant setting aside the result of the presidential election conducted on October 11, 2011?.”
The court, relying on the Fifth Edition of the Black’s Law Dictionary, defined election fraud as ‘illegal conduct committed in an election, usually in the form of fraudulent voting’. The high court presided over by Chief Justice Johnnie Lewis said since CDC failed to establish that the act of opening the ballot boxes led to the alleged fraudulent voting, it was not legally possible to uphold any charge of fraudulent voting and hold NEC liable of any wrongdoing. Besides, the court pointed out that the law, in such case, is that the plaintiff must make and establish a plea of fraud.
“This Court held that ‘fraud must be established by proof; it is not sufficient that a party merely pleads fraud,” the court said referencing a case, Massaquoi vs. Massaquoi, 35 LLR 508, (1988). It also noted, relying on the case, Intrusco Corporation vs. Osseily, 32 LLR 558, (1985), “… fraud, when relied upon to establish a case, must be specifically pleaded and positively, not presumptively, proved at the trial…”
It said CDC did not meet these standards of pleading and establishing fraud with particularity, especially where it failed to contradict its representatives, Munah E. Pelham and Dave Wreyou, II of precincts 30409 and 30339 where the fraud allegedly occurred. Pelham and Wreyou testified before the court that they “observed that Tamper Evident Envelopes from voting precincts 30409 and 30339 were not tampered and they were opened in my presence”.
“The quoted document is clear on its face and self explanatory. The appellant did not raise any objection to the content of the document; neither did it deny that its agents, Munah E. Pelham and Dave Wreyou, II, signed the document along with representatives of other political parties, UNMIL, US Embassy, and national as well as international observers,” the court said in further proof that CDC’s allegations were not legally provable. It then said in closing: “In view of what we have said, the Supreme Court in its verdict pointed out that that while the opening of two ballot boxes in the absence of parties’ representatives, national and international observers were in contravention of the election rules and guidelines, this was not sufficient to invalidate the result of the October 11, 2011, presidential election.
“As to the allegation of fraud and other claims of election violations, the appellant failed to establish a prima facie case to warrant the setting aside of the result of the said presidential election. The appellant’s appeal is therefore denied. The Clerk of this Court is ordered to inform the parties of this decision.”
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