Monrovia – A decision by the Chief Justice of the Kenyan Supreme Court last Friday is sending shivers across the continent of Africa. In Liberia, on the verge of a historic presidential and legislative election, murmurs of what-ifs and endless possibilities are already being discussed even as the high court here has its hands full of a number of major cases likely to have serious repercussions for the upcoming presidential race.
Report by Rodney D. Sieh, [email protected]
Kenya’s Chief Justice David Maraga ruled that the August 8, 2017 elections had not been conducted in accordance with the Constitution, declaring it “invalid, null and void”.
While the main opposition candidate Mr. Raila Odinga is trumpeting the ruling as a historic day for the people of Kenya, the incumbent Uhuru Kenyatta said that it was “important to respect the rule of law even if you disagree with the Supreme Court ruling”.
The incumbent, Kenyatta referred to Justice Maraga and his fellow judges as wakora (crooks in Swahili), saying they had “decided to cancel the election”.
Kenyatta warned the Chief Justice that as the poll had been annulled he was now the president again, not president-elect.
“Do you understand me? Maraga should know that he is now dealing with the serving president,” Mr Kenyatta, 55, said.
“We are keeping a close eye on them. But let us deal with the election first. We are not afraid.”
The court cited irregularities in last month’s election and ordered a new one within 60 days. The poll had raised fears of major violence similar to that following a disputed vote in 2007.
In Liberia, veteran lawyer Cllr. Tiawon Gongloe, when asked whether similar turn of events would be possible in the aftermath of the upcoming elections, particularly in the wake of a recent controversial ruling by the Liberian Supreme Court
“Well, one has to just be hopeful – that’s all I can say.”
In a landmark ruling reversal in May, Liberia’s Supreme Court reversed a decision by the National Elections Commission to reject Mr. Harrison Karnwea as running mate of Liberty Party’s presidential candidate Cllr. Charles Walker Brumskine, noting that he was in substantial compliance.
“He resigned after the Code of Conduct was declared constitutional. His conduct of not resigning two years earlier is in violation, we don’t believe that the action is egregious in nature.”
The Court in an earlier ruling held that rejected Montserrado County District 15 aspirant, Abu B. Kamara flagrantly disrespected the Supreme Court and violated the Code of Conduct and as such it cannot overturn the National Elections Commission (NEC) decision to bar him from contesting in the October elections.
Gongloe Hails Unprecedented Kenya Ruling
Reading the Bench’s opinion on Kamara’s petition for a Writ of Prohibition on the NEC, Chief Justice Francis S. Korkpor said the bench sought to determine whether the Code of Conduct (CoC) was applicable to him (Kamara); whether the amendment by the Legislature was in violation of the ECOWAS Protocol; whether he was given due process and whether the prohibition should be granted the prohibition.
According to the Supreme Court, the lack of mention of the position of assistant minister in Section 5.1 and 5.2 in the CoC does not exempt persons holding position from abiding by the CoC, as Article 56A of the Constitution named who the President appoints.
Mr. Kamara, an assistant minister for administration at the Ministry of Post and Telecommunications, did not resign as demanded of appointed officials before filing his credentials before the NEC.
Drawing contrast from the unprecedented ruling in Kenya, Cllr. Gongloe who disagreed with the Court ruling in Liberia told FrontPageAfrica, he pays homage to the Kenyan Supreme Court for overturning an election in which the ruling party won.
“I disagreed with the last decision of the (Liberia) Supreme Court. But hats off to the Court of Kenya because they took a decision to overturn an election in which the current president is running.”
“I think it is a landmark case for not just Africa but the rest of the world.”
“This is very unprecedented as we have never seen anything like this in our lifetime. Such a decision could not have been made during the reign of Daniel Arab Moi.”
“So, it has put Kenya on a different level now – it all hinges on the strength of the judiciary.”
In Liberia, the Court is currently embroiled in at least three major election related cases – Amos Seibo of District #1 (Appellant) versus the Nomination Committee of the NEC (Appellee) in the action for Rejection of Nomination Application; Garyah Karmo of District #1, Bomi County (Appellant) versus Hon. Edwin Snowe of District #6, Montserrado County (Appellee) in the action for Objection to Registration; and Edwin Melvin Snowe of District #6 & Unity Party (Appellants) versus Hon. Sando D. Johnson of Bomi County in the action for Domicile violation.
Rep. Snowe is currently embroiled in a battle at the high court over his quest to represent the Senjeh District, Bomi County, while still the current Representative from Montserrado County, District No. 6.
Slawon, an aspirant from Nimba County District #9, running on the ticket of the Liberty Party, for his part was notified by NEC that his candidacy has been revoked for violating the Code of Conduct (CoC) by not resigning his position as director general of the National Commission on Higher Education before launching his bid.
All three cases are on the Supreme Court docket.
The ongoing wrangle at the high court is reminiscent of the December 2014 Electoral District #7 in Bong County race between independent candidate Dr. Henrique Tokpa against the National Elections Commission and the candidate of the National Patriotic Party (NPP), Jewel Howard Taylor in the 2014 special senatorial elections.
2014 Redux Likely
At the end of those elections, the Supreme Court mandated the National Election Commission (NEC) to do an election re-run in three polling places in District #7 – Sanoyea Market, Yarbayeh Public School and Bletenda Palava Hut, respectively, in Lower Bong County within 60 days.
The Court’s decision was prompted by a complaint filed by Tokpa, second place winner in the December 20, 2014 special senatorial election on grounds that there were procedural irregularities leading to his defeat by Senator Jewel Howard-Taylor.
Following adjustments from by the Supreme Court, the election results showed Howard-Taylor amassing 13,255 votes while Tokpa had 11,672 votes. In his complaint to the local office of the NEC headed by Magistrate Joseph Jallah, Tokpa said there were unidentified voters allowed to vote, over statement of total votes cast in the area and election boxes were left open beyond the prescribed period.
Not accepting the ruling of both Jallah and the NEC, the case was taken to the Supreme Court which, following thorough examination, ruled for a re-run of election at the three protested areas based on facts discovered in Tokpa’s complaint.
Tokpa eventually withdrew his complaint because it was alleged that President asked he dropped his case against Jewel Taylor, as at the time Jewel was a confidante of the President. In exchange for dropping his case, Tokpa was rewarded post of Minister of Internal Affairs.
Many political observers see the ongoing build-up of cases before the high court ahead of this year’s elections as even more reasons for concerns.
With more than 20 candidates contesting the presidency, competing egos and a wave of social media anger storm leading into the elections may be writings on the wall of what could be looming ahead.
For the foreseeable future, it appears the ruling in Kenya has alarmed a wake-up call with many on the continent likely to view it as a lightning rod for potential challenges of election results.
In Liberia, the transition from war to peace is up against a litmus test in an election viewed by many as a major gauging point for Liberia’s post-war bourgeoning democracy.
Post-elections uncertainties are not unusual, particularly in Africa where as is the case in Kenya, the economy is often the first to suffer.
Investors and stakeholders will no doubt be paying a close eye on how the unfolding developments in Kenya ricochets across the continent where upcoming elections in Sierra Leone and Liberia are being contested.
A History of Post-Election Issues
The past two presidential elections in Liberia were dogged by claims of election irregularities but none reached the high court where the justices were given the chance to alter the outcome.
In 2005, George Weah and his Congress for Democratic Change cried foul after official voting returns showed he lost a November 8 run-off presidential poll by a wide margin to Johnson-Sirleaf. Sirleaf countered at the time that the charges of fraud were trumped up.
“This is all something just to delay the inevitable,” Sirleaf said at the time.
In 2011, nine political parties, led by the CDC pulled out of the second round and urged poll observers to withdraw from the monitoring process.
Cllr. Tubman’s Congress for Democratic Change, Prince Johnson’s National Union for Democratic Progress, the National Patriotic Party, National Democratic Coalition, Union of Liberia Democrats, Liberia Transformation Party, and Victory for Change Party, Liberia Reconstruction Party, and Grassroot Democratic Party denounced the elections as fraudulent.
The parties, in a statement, claimed that the NEC was fraudulently altering the vote count to favor Sirleaf, saying that they planned to present their evidence of fraud through the media and would not respect the outcome of the elections.
All the accusations came to head when NEC Chairman James Fromayan wrote and informed CDC’s Presidential Candidate Winston that Tubman was the actual winner of the first round, not Sirleaf.
Mr. Fromayan later explained that the letter was a mistake and he inadvertently wrote and signed the letter. In order to calm down the storm the international community led by ECOWAS and U.N. Secretary, Fromayan was forced to resign.
But even after ECOWAS’s intervention and promised to reform the NEC post 2011, CDC boycotted the second round, and withdrew from the process.
This incident led to a clashed between the police and CDC, leading to a shooting death of a CDC partisan. Police Director Marc Amblah was also forced to resign.
Perhaps eyeing possible tension ahead of 2017, President Sirleaf submitted a draft bill to the legislature called Transitional Act so as to smooth path to a full and complete transition.
While many of the requests in the draft seems reasonable, political observers say the suggestion by Sirleaf for presidential amnesty from prosecution and a threat that such amnesty will make it easier for an African leader to turn over power and not still into office by hook or crook, raised eyebrows with many of her opponents projecting an uphill battle for passage.
Two Transitional Plans in Play
It seems that Sirleaf’s former party chair and nemesis Senator Varney Sherman is not buying her transitional plan proposal. He believes Sirleaf is bent on creating chaos to prolong her stay in power. So, last week Sherman proposed an Act to legislate transition of power.
In his proposed act, Senator Sherman states that Sirleaf and the Vice President must vacate office on the third Monday in January 2018, whether there is a new president or not.
Sen. Sherman wants the Speaker to assume the office of President on the third Monday in the event the elections have to be rerun or the results are locked in a dispute at the Supreme Court. In the event there is speaker by the second Monday in January because of elections dispute, then the Pro Tempore will be sworn as President.
Senator Sherman wants Sirleaf to leave power at any cost on the third Monday in January to avoid a situation as in Kenya wherein Kenyetta will remain as President until there is a rerun in 60 days.
Supporters of the Sherman proposal fear that Sirleaf will only agree to leave on the third Monday in January 2018 if she is giving immunity.
Liberians are now watching to see which version of the transitional arrangements will win the day – Sirleaf vs. Sherman.
What remains certain for now is that Liberia’s 2017 elections, the most contentious in the country’s postwar history will pose challenges to the country’s fragile judicial system with many potential disagreements and entanglements that if not resolved could put the country’s transition at risk.
Chief Justice: Don’t Call for Impeachment in Liberia
Chief Justice Korkpor has termed the Kenyan’s High Court’s decision as a bold one which could not have come without evidence.”
“But he quickly interjected that similarly, the courts should be allowed to perform their functions here in Liberia.
“I am sure y’all heard about the landmark judicial proceedings in Kenya. “
“This was a bold decision which could not have been taken without evidence,” said Justice Korkpor.
He continued: “Although unprecedented in in the history of Africa, there is no talk of removing the Justices because of the decision”.
The Chief Justice said the rule of law remains paramount and should be respected.
He added: “The rule of law remains paramount, so we ask that the judiciary be left alone to work freely”.
The Chief Justice said during the current electioneering period the judiciary must be allowed to perform its duties.
He spoke Saturday during the official dedication of a newly constructed judicial complex housing the 8th Judicial Circuit Court in Sanniquellie, Nimba County.