In a Press Release from the National Elections Commission (NEC) on Friday, while justifying the extension of the timeframe for political parties to submit to the NEC listing of nominated candidates for the pending October elections, the NEC argues the statutory 50% candidate requirement and 30% gender requirement as reasons for the additional days.
NEC states: "[i]n the astuteness of the Commission, and considering the level of enthusiasm on the part of political parties and aspirants, coupled with the statutory demands relating the 50% candidate requirement and the 30% gender requirement for each party, the Commission added additional days…with the additional days, the Commission hopes the parties would be able to satisfy the above statutory requirements.” (Emphasis mine).
The NEC is on point when she quotes Section 4.5(1a) and (1b) of the New Elections Law providing for political parties to assure that they are represented in at least half of the constituencies and that they are gender sensitive in their nomination of candidates.
However, by extending the registration period for political party candidates by a further 10 days, NEC is in violation of An Act to amend certain provisions of the 1986 Elections Law, published December 15, 2014(“the New Elections Law).
The New Elections Law provides in subsection 4.5(3) that “the list of candidates shall be received by the Commission no later than ninety (90 days before the Election”.
Additionally, the New Elections Law also prohibits the Elections Commission from formulating and enforcing guidelines controlling the conduct of elections which shall be inconsistent with the Constitution and the Elections Laws of Liberia. See Section 2.9(h) of the New Elections Law.
A ten-day enlargement takes the period for political parties to file their list of candidates within 80 days before the day of elections i.e. from July 11, 2017, to July 21, 2017, which is inconsistent with the section 4.5(3) of the New Elections Law.
Many of you may now be wondering, “what is the harm caused by the enlargement of time by NEC? Is the enlargement considered an amendment of section 4.5(3) of the New Elections Law?
Finally, will the extension be considered a force majeure event, which allows NEC to extend the time?”
The harm is that it violates the New Elections Law. By extending the time allowed by statute, NEC has effected an amendment which is not consistent with amending a statute in our jurisdiction.
Only the Liberian Legislature is clothed with the authority to amend a statute. Lastly, there has been no occurrence of a force majeure event.
Whether or not the National Elections Commission can, by regulation, violate a statute?”
This question has got only one answer: ‘NO’. NEC cannot formulate a regulation in violation of a statute that provides otherwise. This is a basic principle of the hierarchy of laws.
A regulation cannot be used to amend a statute. As recent as Mappy-Polson v. R.L (LRSC 6, 2017), our Supreme Court has upheld this principle. In that case, the Court reiterated earlier Opinions that regulations cannot be passed in contravention of statutes and statutes cannot be passed in contravention of the Constitution of the Republic.
In practicality, the Ministry of Finance and Development Planning cannot formulate a regulation to govern financial management in the Republic of Liberia in contravention of the Public Financial Management Law as much as the Liberia Maritime Authority cannot regulate to give itself financial autonomy not prescribed under the Liberia Maritime Authority Act. The NEC therefore, cannot regulate to violate the New Elections Law.
Does the reason given by NEC rise to the level of an emergency for which an extension is required?
In all of life, there are sometimes situations of such emergency as to render the occurrence of a planned event or series of planned events impracticable. In law, an emergency that rises to that level is termed a force majeure.
A force majeure is defined as ‘an event or effect that can be neither anticipated nor controlled. The term includes both acts of nature (e.g., floods and hurricanes) and acts of people (e.g., riots, strikes, and wars). Black’s Law 9th Edition.
If an emergency of the nature that warrants tampering with the statute were to occur, a person or administrative body such as NEC would be justified in claiming a force majeure and the need for an extension beyond the statutory limit; and even so, the NEC would have had to ask the Legislature to grant the extension by the passage of an Act. NEC did none.
Does the justification given by NEC rise to an emergency? Let’s examine!
NEC states in her Press Release, [w]ith the additional days, the Commission hopes the parties would be able to satisfy the above statutory requirements.” (Emphasis mine). What statutory requirements is NEC talking about?
They are (1), ‘the list of candidates sent by a political party to the Commission for election must include a candidate for at least half of all the constituencies in the election and (2), the list of candidates has no less than 30% of its members from each gender.’
Let’s remember that NEC’s justification is taken from the New Elections Law which came into effect December 15, 2014. It has been almost three (3) years since this law took effect and a reasonable time long enough for political parties to have known or have reason to know that they were required to satisfy these conditions. In my opinion, NEC’s justification does not rise to the level of an emergency, is not a force majeure and thus, is very speculative. Some have gone further in terms such action as mischievous.
However speculative or mischievous, NEC may just have opened the door to more litigations in the realm of prohibitions or injunctions. Are there many now saying ‘see you in court?’
- D. Tarplah, Contributing Writer