What Is The Legal Basis For Election Postponement? Implications For Social And Political Stability In Liberia Amid The Health Care Crisis
According to the Liberian Constitution, Article 83 A: “Voting for the President, Vice-President, members of the Senate and members of the House of Representatives shall be conducted throughout the Republic on the second Tuesday in October of each election year.” In view of the aforementioned, the National Elections Commission (NEC) of Liberia, by and through its former Board of Commissioners (BOC) under the Chairmanship of Cllr. Jerome G. Korkoya set Tuesday October 13, 2020 as the date for the holding of the Special Senatorial Elections (SSE) as well as the conduct of a National Referendum in keeping with constitutional dictates.
By Senesee Geso Freeman, Contributing Writer
As a consequence of the health crisis that has engulfed Liberia and the world at large, the newly reconstituted BOCs issued a press release on May 6, 2020 intimating that October 13, 2020 was not feasible for the conduct of these elections thereby recommending an extension. Amongst other concerns the Commission stated that: “The Coronavirus pandemic (COVID-19) pandemic and related restrictions have impacted on preliminary activities leading to 2020 SSE and Referendum, notably the international procurement required to secure electoral materials, assessment of the voter registration centers critical for voter roll update preparations, recruitment and training of temporary staffs, all which are indispensable for the credible conduct of the electoral process.” In response to the challenge, the NEC Board of Commissioners then recommended to the President of Liberia to entreat the Liberian Legislature to enact a resolution to temporarily suspend the 13 October date of the SSE and set a new date before the end of the year for the conduct of these elections.”
Free, fair and democratic elections can only be deemed acceptable and generally embraced by the general populace and stakeholders when all of the processes leading to elections day and thereafter are inclusive and transparent. People must build confidence in the electoral process to enable them congregate and enthusiastically participate in the electoral process, key attributes that are currently at risked because of the ongoing global health pandemic occasion by the novel coronavirus. This pandemic is happening at a time in human history when resources for elections around the world are far dwindling and political will by governments are been stifled while general confidence in political actors and Electoral Management Bodies are in global decline. It is important to note that more than 50 countries around the world have either postponed or canceled elections amidst the COVID-19 outbreak, while other have used the crisis as a pretext to quickly consolidate power and erode individual rights. (https://www.ifes.org/sites/default/files/ifes_covid19_briefing_series_safeguarding_health_and_elections_brochure_may_2020.pdf).
It is quite obvious therefore that the NEC is incapable of conducting these elections largely as a result of the COVID 19 pandemic and its underlying adverse financial, technical and health restrictions in line with the constitutional due date of the second Tuesday in October of this election year. In view of the aforesaid, are there legal basis for the postponement of the SSE? If so, what historical and legal precedent exist to necessitate this very important decision? Are there comparative global parallels that can guide the NEC and other stakeholders to allow a postponement and hold the elections at a later date acceptable to the general populace? What safeguards can be put in place to ensure that elections are eventually held in a healthy and conducive environment taking due cognizance of the full rights of women, the physically challenged and youth as integral part of this process? What are the implications on the legitimacy of the current government if the SSE are not conducted before the reconvening of the next seating of the Liberian Legislature in January 2021?
This article intends to provide critical answers to these questions as a way of enhancing this national dialogue aimed at finding acceptable remedies to the holding of the SSE and Referendum so as to avoid an emerging constitutional crisis.
Historical and Legal Precedent for the Postponement of the Special Senatorial Elections
On August 6, 2014 then President Ellen Johnson Sirleaf declared a state of emergency as a result of the Ebola Virus epidemic that had killed more than 3,250 Liberians. That proclamation was subsequently endorsed by the National Legislature on October 4, 2014 suspending the election and authorizing the NEC to conduct the elections not later than December 20, 2014.
Following the passage of the Joint Resolution, several interest groups, political parties and eminent Liberians filed petitions with the Supreme Court opposing the move by the Executive and Legislative branches of government to postpone the constitutionally determined date for the holding of the Special Senatorial Elections. Notable amongst the petitions filed was by the Public Interest Consortium Africa (JUPICA), represented by Counsellors Sayma Cyrennius Cephus (now Solicitor General of Liberia) and Edwin K. Martin (now County Attorney of Montserrado County) for the Writ of Prohibition at the Supreme Court, contending that the President having suspended the Special Senatorial election, only the people of Liberia, pursuant to the Constitutional provision “we the people” (Article 1) could set a new date upon the organizing of a sovereign national conference. The National Elections Commission was represented by Counsellor F. Musah Dean Jr. (now Attorney General of Liberia) and the late Counsellor Theophilus C. Gould while the government was represented by Cllrs. Benedict F. Sannoh, Betty Lamin-Blamo (former Attorney General and Solicitor General) and Augustine Fayiah respectively. In lieu of the legal arguments on the merits of the prohibition, the Supreme Court issued a Stay Order which prohibited a number of election-related activities, including campaigning.
After a period of intense arguments by both parties the Supreme Court on December 13, 2014 stated the following: the Constitution gives the Legislature the power to make election laws; because the Joint Resolution was passed by the Legislature and signed into law by the President when the state of emergency was still in effect, constituted a modification of the measures taken by the President pursuant to the state of emergency as required by Article 88 of the Constitution; that a resolution passed by the Legislature and signed into law by the President is law; both the President and the National Legislature, having performed acts within the spirit of the law, did not violate the Constitution. The SC rejected the plaintiff’s premise in their petitioned that “we the people” argument stating that it was an improper interpretation of the Constitution since in fact the people act through their elected and/or appointed officials. Regarding whether the election could be held during the Ebola crisis, the Court opined that it was a political question, bordering on policy issues, which fell within the purview of the Legislative and Executive Branches of the Government and certainly not the Judiciary.
Finally, the court opinioned its ruling as follows: “This court is not a political branch and the issue before this court is political and we cannot hear this petition. Wherefore and in view of the foregoing, the majority of the honorable Supreme Court bench hereby squash and denied the writ of the prohibition and the stay order on the pending special senatorial election is hereby lifted” – Liberia’s Chief Justice His Honor Francis S. Korkpor, Sr.. It is important to state that Justices Kabineh M. Ja’neh and Philip A. Z. Banks dissented the majority ruling of their colleagues. Following the court ruling, the Liberian Legislature announced December 20, 2014 as the new election date for the conduct of the Special Senatorial Elections.
The circumstances as just enumerated serves as a sufficient basis, historically and legally, for consideration of a postponement of the SSE because the health and safety of the people who are the direct beneficiaries of any electoral process is call into question. Furthermore, because the SC is the final arbiter for legal redress in the complaint mechanism hierarchy of Liberia’s jurisprudence, its suffice to say then that all legal remedies were exhausted by those who felt aggrieved egregiously by actions of the Executive or Legislative branches of government during the period of the State of Emergency.
As members of the Liberian Legislature continue their deliberations and dialogues with key stakeholders in reaching an acceptable legal decision to carve a new date pursuant with the NEC’s request for postponement, it is important that whatever decisions are reached should observe the crucial question of should the various phases of the electoral process (voter’s update, exhibition of the voters roll, civic education and community engagements, campaigning and casting of ballots) be done in person? If the threat to physical exposure by the electorates and elections officers are real, what are the alternatives? Any dialogue on the way forward amidst the ongoing pandemic should reflect the experience of legal, electoral and health experts in providing critical guidance to reduce the risks to voters and the electoral management body. By doing so, it will reduce threats to democracy posed by cancelations and postponements that are avoidable with timely funding of the electoral process, proper planning and widespread public consultations.
Are there comparative global parallels that can guide the EMB and stakeholders in general to postpone and hold the elections at a later date?
The Republic of South Korea is recorded as the first country to conduct nation-wide elections in the coronavirus pandemic era. Its 21st legislative elections were held on 15 April 2020 at which time all 300 members of the National Assembly were elected, 253 from first-past-the-post constituencies and 47 from proportional party lists. They were the first elections held under a new electoral system. More than 29 million people – representing 66 percent of the electorate, the highest turnout in nearly three decades, physically casted ballots to choose 300 members for its National Assembly. It is important to note that the election was conducted during the COVID-19 pandemic, which had both practical impacts on the conduct of the poll, and political impacts on voters’ choice of parties to support. In February 2020, South Korea had the second-most cases of any country, after China. By Election Day, South Korea had recorded over 10,000 cases and 200 deaths. The country had introduced one of the world’s most comprehensive programmes of COVID-19 testing, contact tracing and quarantine of suspected cases. As a result, the case fatality rate in South Korea was 1.95%, lower than the global average of 4.34%, and the country avoided widespread lockdowns that were implemented elsewhere. Electoral officials declined to postpone the election; South Korea has never postponed any election, even the 1952 election which was held during the Korean War. (https://en.wikipedia.org/wiki/2020 South_Korean_legislative_election).
Special arrangements were required to ensure social distancing during the election to prevent further infection. Voters were required to wear face masks and stay at least 3 ft apart when queuing or casting their votes. Before entering the polling station, each voter was checked for fever using a thermometer, required to use hand sanitizer, and issued with disposable plastic gloves. Any voter with a body temperature greater than 37.5 °C (99.5 °F) was taken to a segregated polling booth, which was disinfected after each use. The thousands of voters who had been placed in self isolation due to potential infections were allowed to vote, but only after the polling stations had been closed to all other voters, and provided they were asymptomatic.
Before the outbreak of the pandemic, the Democratic Party had been expected to struggle in the election: opinion polls in 2019 had predicted it would win 37-41% of the constituency votes. The government’s response to the outbreak was praised by the World Health Organization (WHO) and received widespread support in South Korea. The President of South Korea, Moon Jae-in of the Democratic Party, was not up for re-election, but his response to the pandemic was popular and benefited his party in the legislative election. The elections was viewed largely by South Koreans as a referendum on Mr. Moon’s democratic approach to the Covid-19 pandemic, and South Korean voters handed him a resounding victory. The Democratic Party won in a landslide, capturing (along with its satellite party) an estimated 180 seats and securing the largest majority in decades.
I am aware that skeptics will be quick to point out that South Korea is a highly developed country economically and technically and that to cite this experience with Liberia an impoverished third world country with all of its attending economic and infrastructural challenges is like comparing apples to oranges. I disagree with this premise largely because the South Koreans were able to create an environment that enable the voters to do in person voting by employing ingenious health protocols to protect its citizens that garner public confidence in the electoral process before election day. Additionally, their political actors and the general citizenry were magnanimous enough to not allow the pandemic to deter their desire to hold democratic elections even at the peril of a health pandemic. What are the lessons learned from the South Korea pandemic experience? Firstly, in- person elections even during a period of health emergency as with the COVID-19 is possible and doable; secondly, an enormous degree of political will is required from the government by its financial support to the EMBs in a timely manner; thirdly, national, regional and local health authorities will need to develop a national COVID-19 Elections Protocol Strategy in tandem with the World Health Organization (WHO), Africa Center for Disease Control and Prevention (Africa CDC), the National COVID-19 Taskforce for Liberia as well as international electoral institutions like the International Foundation for Electoral Systems (IFES), African Center for Strategic Studies, amongst others. Collectively and individually, these institutions will be able to work in tandem with the NEC to employ best practices to safeguard the electoral process and engender a broader participation of all stakeholders (political, voters and international community).
What safeguards can be put in place to ensure that elections are eventually held in a healthy and conducive environment considering the full rights of women, the physically challenged and youth as an integral part of the electoral process?
The NEC must endeavor to use the experiences of the 2014 EBOLA epidemic as a yardstick in its continued preparedness for the 2020 SSE and National Referendum. It should endeavor to seek the advice and recommendations of international and national health related organizations like the World Health Organization (WHO), Africa Center for Disease Control and Prevention (Africa CDC), the National Public Health Institute of Liberia (NPHIL)as well as the international non-governmental organization like the International Foundation for Electoral Systems (IFES), amongst others, to employ best practices in safeguarding the electoral process and voters to ensure credibility and a broader participation of all stakeholders (political, voters and international community).
Towards this end, recently, IFES (a prodemocracy elections institution serving as a global leader in democracy promotion by providing technical assistance to election officials) produced and published as part of its COVID-19 Briefing Series a research paper titled: “Safe Guarding Health and Elections,” in which it outlines major findings and recommendations to support EMBs around the world in making rational decisions towards the holding of elections during such or similar the current health emergency and health pandemics in general. The President and CEO of IFES, Anthony N. Banbury, aptly iterated the intent of the production of the research paper when he stated: “As a trusted partner of election management bodies around the world, the International Foundation for Electoral Systems (IFES) is dedicated to providing accurate information and sound technical advice to guide their decision-making with the goal of administering elections that are safe and credible. This paper, produced in coordination and consultation with public health experts, is a product of our ongoing efforts to adapt to new challenges and grow with our partners. Together, as always, we will continue to overcome obstacles and build democracies that deliver for all.” I will encourage the NEC and other key stakeholders in civil society and political actors to take advantage of this brilliant research paper in safeguarding health and elections: (https://www.ifes.org/publications/ifes-covid-19-briefing-series-safeguarding-health-and-elections).
What are the implications on the legitimacy of the current government if the SSE and Referendum are not conducted before the seating of the Liberian Legislature in January 2021?
Liberia’s continuous political stability and economic development is contingent the holding of free fair and democratic elections before the end of 2020. We are at a crossroads as the country grapples with the current COVID-19 health emergency and challenges to the timely funding of the SSE and National Referendum by the national government as well as dwindling financial support from international partners to augment GOL resources. Additionally, a reconstituted BOC of the NEC, the climatic condition occasioned as a result of the country’s rainy season and a heighten tension between the ruling party and opposition parties create additional challenges to the successful holding of these elections. But one thing is certain, all stakeholders are committed to the holding of free, fair and democratic elections so that is why it is incumbent upon state actors in the Executive and Legislative branches of government to move in an expeditious manner to pass a Joint Resolution for the reschedule of the October 13, 2020 SSE consistent with the expressed goal of ensuring continuity the governing process. Any timeline provided by the Liberian Legislature must ensure that the NEC conducts elections and announce results before the end of 2020 so as to avoid a constitutional crisis that will render 15 members of the Liberian Senate illegitimate because of the expiration of their 9 years tenure. I am strongly convinced that the political will is there and the right thing will be done to ensure that the SSE and National Referendum are held in a timely manner.