Now that the Supreme Court halted the Commissioners of the National Election Commission (NEC) from being incarcerated, I am inclined to provide a legal opinion. Following the prohibition, citizens have begun to ponder over the legal implications. Some believe that the Supreme Court has threaded beyond its scope of operation. Others are of the view that the Court is on course. Around these different views, I am endeavoring to answer, ‘whether the Supreme Court has legal grounds to prevent the imprisonment of the Commissioners under a legislative contempt power in a matter growing out of a lag in the performance of a constitutional duty?’
F. Mulbah Zig Forkpa, Jr., firstname.lastname@example.org, Contributing Writer
My answer is in the affirmative. The Supreme Court has legal grounds to prevent NEC’s bosses from going to jail, as in the instant case. Two reasons support my answer: 1) the Legislature is alleging the violation of the Constitution, the interpretation of which lies in the purview of the Supreme Court as a matter of finality; and 2) In the event a citizen is subjected to a condition that seeks to violate a protected right guaranteed by the Constitution, the Court is the proper venue to seek a remedy.
Before providing an in-depth analysis, it is essential to provide a background context. On February 18, 2021, the Liberia Senate invited the Board of Commissioners of NEC. The invitation was provoked by the election body’s inability to adjudicate all election disputes within 30 days, something that the Legislature termed as a violation of Article 83 (c) of the 1986 Constitution of Liberia. The Legislature also noted that the violations, having impeded the Senate’s function in the sense that the non-adjudicated disputes have also meant the lack of quorum, was a ground for incarceration under legislative contempt.
Given the above fact, the February 23, 2021 Senate Plenary Session was greeted with a Petition from the Supreme Court ordering the Senate to halt all actions related to the Commissioners’ incarceration. The Petition cited the parties to a conference on February 24, 2021. It had alleged that the Petitioners were incarcerated and languishing in jail. In this commentary, I have deliberately chosen to avoid touching on the Petition’s allegation or truthfulness of incarceration since it is pending before the Supreme Court for determination.
I will now return to my points to support why the Supreme Court’s intervention has a legal basis. First, Liberia’s Constitution empowered the Court to serve as the final arbiter of all constitutional matters. The Legislature cannot decide that the NEC violated Article 83 (c) of the Constitution without abrogating onto itself a power reserved only to the Court. By tying its contempt power around interpreting a constitutional provision, the Senate made its action vulnerable to the Supreme Court’s intervention. The second point borders on due process of law, which again places Article 20 (a), another constitutional provision, under scrutiny. Consistent with the Petition, the Commissioners informed the Court that they had been incarcerated without any due process. Again, I will leave the substance of the allegation to the Court. In any case, the Court’s intervention will be proper when a Citizen complains that one of its protected constitutional rights, such as its rights to due process as in this instant case, has been violated. The Court is not a soothsaying house to determine any allegation’s truthfulness without inviting the parties involved, something it has done through the conference invitation. Assuming that the Senate can prove that it did not proceed wrongly and that the Petitioners were correctly held for a legislative contempt consistent with the Constitution’s due process clause, the Supreme Court is the proper venue for these assertions. The Case Broh v the Hon House of Representatives, decided in 2014, is a precedent case. There, Madam Broh filed for a writ of prohibition, alleging that the House of Representatives had ordered her incarceration without affording her due process. The Court agreed. The Court’s intervention was right then, and it is still right now.