A Legal Brief filed by Lawyers for the Plaintiffs for the Postponement of the 2014 Senatorial Elections in Liberia




The Perspective
Atlanta, Georgia
December 6, 2014

                  



Editor's Note:
Despite the Ebola plague, the Liberian Legislature and the Liberian Government, as a whole, re-scheduled the October 14, 2014, senatorial elections to December 16, 2014.  But some citizens of Liberia felt that the process is replete with legal gaps and that the elections need to be postponed to address the legal gaps and to bring the Ebola virus under control before having the senatorial elections.  Below is the brief:


 

REPUBLIC OF LIBERIA    ]      IN THE HONORABLE SUPREME COURT OF THE REPUBLIC OF
MONTSERRADO COUNTY]  LIBERIA, SITTING IN ITS OCTOBER TERM, A. D. 2014

BEFORE HIS HONOR: FRANCIS S. KORPOR, SR.……………………..……..CHIEF JUSTICE
BEFORE HIS HONOR: KABINEH M. JA’NEH………..……….……..….ASSOCIATE JUSTICE   
BEFORE HER HONOR: JAMESETTA H. WOLOKOLIE…………...ASSOCIATES JUSTICE
BEFORE HIS HONOR: PHILIP A. Z. BANKS, III…………..…..…..…....ASSOCIATE JUSTICE
BEFORE HER HONOR: SIE-A-NYENE G. YOUH…..……...………..…..ASSOCIATE JUSTICE


 Justice and Public Interest Consortium Africa
(JUPICA) of the city of Monrovia, Montserrado County,
Republic of Liberia represented by its Case Management
Director E. Kartuson Norris
 …….…………………………………………1st PETITIONER

                        AND

Honorable Edwin K. Martin, a Bona Fide Registered Voter                            
of the Republic of Liberia and Resident of Paynesville
City Monrovia, Liberia………………...2nd PETITIONER

                        AND

Blamoh Nelson, J. Emmanuel Z. Bowier, Milton
Nathaniel Barnes, Eminent Citizens and Registered
Voters and John Ballon, Registered Voter and Chairman
of the Movement for Progressive Change (MPC)  of the
City of Monrovia, Montserrado County, Republic of
Liberia…….………………………………..…3RD PETITIONERS

Versus
PETITION FOR A WRIT
OF PROHIBITION
The National Elections Commission by its Chairman          
Cllr. Jerome Kokoryah and Members of the Board of
Commissioners including all Election Magistrates, Directors
And Supervisors under their control of the City of Monrovia,
Liberia…...1st Respondent

                                AND

The Government of Liberia by and thru the Ministry of Justice
Represented by the Acting Minister, all deputy and Assistant
Ministers and the Solicitor-General of the city of Monrovia,
Liberia………………………………..……...2NDRESPONDENT

 

PETITIONERS’ LEGAL BRIEF

1st, 2ND & 3RD Petitioners’ Consolidated Brief

Case History for the 1st and 2nd Petitioners
On 21 November 24, 2014 the 1st and 2nd Petitioners filed a petition for a writ of prohibition, requesting this honorable court for the issuance of the Alternative Writ and thereafter, the peremptory writ to prohibit the conduct of the “Special Senatorial Elections” on the National Elections Commission (NEC) on the following grounds:

 

 

 

CASE HISTORY FOR THE 3rd RESPONDENT
On 24 November 2014 the 3rd Petitioner headed by Honorable Blamoh Nelson; Milton Nathaniel Barnes; John Ballon, in the capacity as National Chairman of the Movement for Progressive Change (MPC); and J. Emmanuel Z. Bowier filed their Petition for the issuance of a writ of prohibition for the following reasons:

 

 

 

1st Respondent (NEC) also report that “WHO, for its part, has advised that the public health situation should be prioritized” (italic our emphasis).

 

ISSUES:

 

 

ARGUMENTS AND DISCUSSION

The November 20, 2014 Joint Resolution #003/2014 setting December 16, 2014 as a new election date is unconstitutional and is illegal. It tends to vest the power to determine or decide election dates in the Legislature in breach of Article 1 of the 1986 Constitution. Being that the 1986 Constitution was drafted against the backdrops of a military dictatorship, the framers avoided placing certain constitutional powers, not least, the rights to determine or “to cause their public servants to leave office and to fill vacancies by regular elections and appointments” into the hands of the powers that be.

The bottom-line is that the three branches of the government can assume and jealously exercise all of the powers delegated unto them under the 1986 Constitution but they are forbidden or prohibited from assuming the power exclusively set aside under Article 1 for the people of Liberia. Although Liberia is a constitutional or representative democracy, notwithstanding, the framers did not see the need to vest in any of the branches of the Government constitutional power delegated to the people under Article 1 of the 1986 Constitution.

 

The issue of whether or not  a legislative joint-resolution can  supersede or amend a constitutional provision as in the case of Joint Resolution #003/2014 setting December 16, 2014 as the date for the conduct of the Special Senatorial Election, is constitutionally void ab initio.

Petitioners are arguing that, when the Liberian people were adapting the 1986 Constitution, they jealously reserved unto themselves the power to set election dates and did so by Article 83(a) as a separate and definite provision of the Constitution. They were determined that, under no circumstances should such a power be exercised by the Legislature, the Executive or the Judiciary.  For the avoidance of doubt, the people clearly and precisely defined the constitutional power and mandates of the Legislature (Senators and Representatives) in Article 34; the President in Articles 54, 55, 57, 58, and 59; and, for the Judiciary, in Articles 2 and 66.

Petitioners are praying this Honorable Supreme Court to declare the mandates given by the Legislature in both its Joint Resolutions #002/2014 to the 1st Respondent (NEC) to conduct election on or before December 20, 2014, and in #003/2014 to conduct on December 16, 2014 the election which should have taken place on October 14, 2014, as not consistent with their (the lawmakers’) mandate as defined by Article 34, as well as in the mandate of the President as provided for in the Constitution.

Petitioners pray this Honorable Supreme Court, as the final arbiter of all constitutional issues, to mandate both the Legislators and the President to revert to Article-1 of the 1986 Constitution in answering question: who should set a date for the holding of the elections which should have taken place on October 14, 2014.

As to whether or not the conduct of both the Executive and Legislative branches of the Government in using a Joint-Resolution to set December 16, 2014 as the new date for the holding of senatorial elections amounts to the usurpation of the constitutional powers exclusively delegated to the people of Liberia under Article 1 of the 1986 Constitution, we answer in the AFFIRMATIVE.

The power to determine election dates is not one of those powers that have been granted to both the Legislature and the Executive. That power is exclusively provided for under Article 83(a) and where such Article is suspended as a consequence of a national disaster, civil war, political unrest or during a state of emergency, when the Constitution is finally restore, the decision to determine a new election date can only occur if Article 1 of the 1986 Constitution is invoked and adhered to.  Therefore, the joint-resolution setting December 16, 2014 for the conduct of the senatorial elections amounts to the usurpation of the power under Article 1; hence, it is void and unconstitutional.

Under the prevailing circumstances and realities currently in Liberia, Petitioners further pray this Honorable Supreme Court, to determine the constitutionality of the Legislature authorizing the President to convene a Special Expanded Sitting of the Inter-party Coordination Committee (IPCC) as a National Forum, to include the participation of the below listed  as national stakeholder institutions for the single and specific purpose of setting a date for holding the election which should have taken place on October 14, 2014 and, and in so doing, to make sure that the health of the people of Liberia and the tenure and legitimacy of the current Administration are secured and protected:

 

Petitioners submit that the Resolution of the above proposed National Forum, under the current circumstances in the country, should be deemed as an expression of the Will of the people as contemplated by Article 1 and, as such fits the intent and spirit of Article-2 of the 1986 Constitution.

Petitioners pray this Honorable Supreme Court to take judicious note that on September 29, 1986, the Legislature did enact the “NEW ELECTIONS LAW (Amended January 29, 2003 and December 23, 2004) by the same Legislature with SUB-CHAPTER B: REGISTRATION ROLL addressing the issue and significance of voter registration roll in elections in Liberia which have now come to be know (sic) as the Voter Roll.
Petitioners, in order to clarify their contention on this issue, bring to the attention of this Honorable Supreme Court the following specific and relevant sections of Sub-Chapter B of the New Elections Law referenced to supra which 1ST RESPONDENT has deliberately set aside for the purpose of the ongoing flawed elections:

 

Petitioners contend that, 1st Respondent (NEC), since the General and Presidential Elections of 2005 has, as required by Sub-Chapter B: Section 3.5(1) of the New Elections Law of Liberia, published or open for public inspection, the general registration (voter) roll containing the voter’s name, county, district, constituency, registration center and roll number.  For the purpose of the planned December 16, 2014 election, 1st Respondent (NEC) has not opened the voter registration roll for inspection.  Contrary to the requirement of Elections Law, this is an election without a Voter (Registration) Roll; it should therefore be declared as an illegal exercise and halted by this Honorable Supreme Court.

 
Petitioners contend that the ongoing election activities represent a significant act of complacency and a serious denial that the Ebola Virus Disease (EVD) is invisible; that it is real; that it has no cure; that it has killed and continues to kill thousands of Liberians; and could kill even more. Such activities as election have the potential to complicate, frustrate, and exacerbate the fight to eradicate the Ebola Virus Disease from Liberia. 

Petitioners further contend that the Joint Resolution #003/2014 of the Legislature which mandates the holding of the senatorial election on December 16, 2014 is unconstitutional in that the said Joint Resolution #003/2014 ignores the reason for which the people, in exercising their power and authority as affirmed by Article-1 of the 1986 instituted the government and therefore, should be declared inconsistent with the aspiration, intent and spirit of Arcitle-1 of the 1986 Constitution.  The Joint Resolution #003/2014 is self-serving; it does not promote the safety and happiness of the people which is the basis for instituting constitutional democratic government

As to whether or not the clear and present danger that the Ebola virus poses to the survival and stability of the Liberian state and its people that necessitated the imposition of the state of emergency has now been removed and the killer virus is defeated which would warrant the holding of senatorial elections, we CATEGORICALLY answer in the NEGATIVE. 

On November 13, 2014 President Ellen Johnson Sirleaf lifted the state of Emergency. However, in a nation-wide address the President said: “Notwithstanding these gains, a number of our compatriots are still lying in ETUs, hot-spots are springing up in rural areas, and many of our compatriots are still dying of Ebola. This means that we cannot let down our guard nor can we afford to reduce our vigilance… until we can start the progressive countdown of 21 days, until the national goal of zero-new-cases by Christmas is achieved all across the country, we will keep many of the previous measures in place.”
The phrase: “...a number of our compatriots are still lying in ETUs, hot-spots are springing up in rural areas and may of our compatriots are still dying of Ebola” as used in the President’s nation’s wide address clearly underlines the severity and gravity of the Ebola crisis and it further reveals that the conditions that necessitated the imposition of the state of emergency still remain. Hence, the Ebola virus remains a serious threat to Liberia’s stability. In its Volume 8, No.733, Wednesday December 3, 2014, the Frontpageafrica Newspaper reported that One Hawa Massaly and 12 other family members are currently quarantined amongst 55 people in Jenewonde, Grand Cape Mount. In its Volume 13, N0.26, Monday December 1, 2014 edition the Independent Newspaper reported:

“Ebola hits 16,000, Liberia registered new deaths. Also in its Volume 8, No. 731 Monday December 1, 2014 edition, the Frontpageafrica reported:” Eight New Ebola Cases for Central Monrovia.” These newspaper reports reveal the grim situation that currently exists in Liberia. At the moment according to the Center for Disease Control (CDC), Liberia leads the number of infectious cases totaling 7,635, Laboratory-Confirmed Cases at 2801 and total number of deaths at 3,145. Because of the horrid nature of the virus and the danger it poses to human life, the  CDC in its updated reported published on its website on November 16, 2014 Updated: November 16, 2014 said as follows: “CDC urges all US residents to avoid nonessential travel to Liberia, Guinea, and Sierra Leone…” What other evidence is needed to prove that the Ebola virus still exists and poses a clear and present danger to the stability of Liberia?

For the Justice and public Interest Consortium Africa (JUPICA), we answer with a resounding yes. JUPICA is a duly licensed and registered civil society organization existing under the laws of Liberia and dedicated to the protection of public interest, accountability, rule of law, human rights, minority rights, and constitutional rule as well as women and children rights. As a body corporate, it has both the legal capacity and legal standing to bring this action consistent with Article 26, of the 1986 Constitution.
Article 26 of the 1986 Constitution states:” Where any person or any association alleges that any of the rights granted under this Constitution or any legislation or directives are constitutionally contravened, that person or association may invoke the privilege and benefit of court direction, order or writ, including a judgment of unconstitutionality; and anyone injured by an act of the Government or any person acting under its authority, whether in property, contract, tort or otherwise, shall have the right to bring suit for appropriate redress.” Moreover, this is a public interest litigation in which the 1st Petitioner as a civil society organization has a public interest standing and does not necessarily have to show injury to bring this action. 

Public interest standing in public interest litigation in public international law  involves the enforcement of a “public right”—a right conferred on the public at large, often arising out of  legislation, requiring public officials bodies and entities  to conduct  or administer activities relating to public health, safety or the environment.” Public interest litigation is different from private right litigation in which the litigant must show the extent of injury suffered or right that is at stake.
In determining public interest standing in a public law case, courts of law are looked upon to critically review or consider three fundamental factors such as:

 

We take a more realistic and inspiring  approach  to  call the attention of this Honorable Court  to take  a careful review of  the issue before this court and  see whether the violation of Article 1 of the 1986 Constitution or the holding of senatorial elections at this time serve any legitimate  purpose other than the war on Ebola. 1st Petitioner posits  that the path that has been chosen  to protect and defend the Constitution is the best alternative approach to safeguard our democracy and therefore  beseech Your Honors to  take a more a  flexible and  open view  in analyzing and assessing the effect of these considerations  on the question of public interest standing. 
It is clear that these petitions by the Petitioners raise serious justiciable issues that prove that Petitioners do have interests in the outcome of the action and are fully engaged with the issues that they seek to raise. 
Besides, civil society organizations, political parties and interests groups are direct stakeholders in election matters. To engender public confidence, an electoral body must be seen as fair and credible and must promote public confidence through open and transparent electoral procedures. Besides, the development and publication of simple and functional voter registration and roll is key to transparency and will encourage mass participation. In summary, the manner and form in which an electoral body conducts it by setting in motion

the requisite conditions for fair play will promote public confidence. At the moment, the entire December 16, 2014 senatorial electoral process is a hodgepodge arrangement that could spark an avalanche of serious political crisis with far-reaching consequences because the current health conditions are not suitable. Therefore, as a watchdog of the current democratic process, the 1st Petitioner does have a legal standing to bring this action.

The legal capacity or legal standing of the 2nd and 3rd Petitioners is absolutely indisputable. They are natural Liberian citizens and registered voters who are direct victims of the current Ebola crisis; they fear that the conduct of the senatorial elections could further exacerbate the spread of the Ebola virus and believe that the current national priority should be the War on Ebola rather than senatorial elections. As private citizens, and electorates they have legal standing consistent with Article 26 of the 1986 Constitution to bring this action because it is they who will vote and it is they who have been asked, amid the current Ebola crisis to violate all of the safety measures and procedures put in place by international health workers, to contain the spread of Ebola.

Contradictions In 2nd Respondent’s Petition:
Chapter 9, section 9.3(2 &3) of the Civil procedure Law titled: Form of pleadings, state:
a. Section 9.3(2)--Technical form not required states: “Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading are required.
b. 9.3(3)--Paragraphs and separately numbered claims and defenses states: “All averments of claim or defense shall be made in numbered paragraphs. Each paragraph shall be limited as far as practicable to a single set of circumstances.  The intent of the expression: “Each paragraph shall be limited as far as practicable to a single set of circumstances”, means that all pleadings shall be liberally construed with a view to doing substantial justice between the parties.”

The Supreme Court has held in the case: “Riah Mourah v. OAC, 23LLR183(1974) syl. 2 text at p.186”  that: “Whenever a party has several claims or defenses which may appropriately be made or raised in the same action, he may state them all or assert in separate counts or paragraphs.

The 2nd Respondent served upon the Petitioners two separate and distinct  Returns  with each count presenting different or contrasting issues although referring to the same action, which is quite contradictory and is in total violation of chapter 9, section 9.3(2 and 3) of the Civil Procedure Law.

The 2nd Respondent served upon Petitioners two separate and distinct Returns with each count stating different issues and commencing at different point:

 

The entire Returns continue with different counts with different issues only intended to confuse Petitioners.
 Section1.8 of the associated law states that:  “Domestic Corporation and every foreign corporation authorized to do business in Liberia shall pay to the Minister of Finance an annual fee of one hundred dollars for registration with the Minister of Foreign Affairs. Did the 2nd Respondent show any evidence to prove 1st petitioner nonpayment of such fee?
The Object of prohibition:  “Prohibition will lie to prevent, avert or discourage the illegal performance of any act by a judicial or administrative official or citizen-- is intended to undo an illegal act that has already been, or is being performed. See Sesay vs. Badio, 37 Liberian Law Reports (37LLR, 359), and syllabus 9. Prohibition will also lie when an action set to be performed clearly targets a Liberian citizen or institution. See Mary Broh v. The House of Representatives. Unbinded opinion
WHEREFORE AND IN VIEW OF THE FOREGOING, IT IS THE RPAYER OF PETITIONERS THAT YOUR HONORS WILL:

 

 

 

 

 

RESPECTFULLY SUBMITTED
PETITIONER REPRESENTED BY COUNSELS
JUSTICE AND PUBLIC INTEREST CONSORTIUM AFRICA
FIRST FLOOR, BEDELL BLDG
BENSON & CENTER STREETS INTERSECTION
MONROVIA, CLIBERIA
Mobile: +231886586464

Signed: (Signed)
SAYMA SYRENIUS CEPHUS
COUNSELOR-AT-LAW
Dated this 4th day of December A. D. 2014                                                    


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