With just one day to spare, the Supreme Court of Liberia on Monday ordered the National Election Commission to desist from conducting the run-off election scheduled for November 7. The five-member Court ruled that the fraud complaint filed by the Liberty Party on October 23 must be investigated by the NEC, ruled upon by them, and, if the Liberty Party wants, appealed to and decided by the Supreme Court before proceeding with a run-off election. The NEC’s “final vote count” issued on October 20 showed Liberty Party candidate Charles Brumskine in a distant third place behind frontrunners George Weah (CDC) and Joseph Boakai (UP). It ordered a run-off election between Weah and Boakai.
Liberia’s Supreme Court wrestled with the issue of whether the electoral complaint process outlined by Article 83(c) of the Constitution had to be exhausted before the NEC could announce a run-off election. Liberia’s Constitution provides for a runoff if no candidate for President obtains more than 50 percent of the vote, which was the case.
The Supreme Court, in an opinion delivered by Chief Justice Francis Korkpor, ruled that constitutional due process requires the NEC to investigate and make a decision on electoral complaints, and for the Supreme Court to rule on any appeals of that decision, before scheduling a run-off presidential election. The Court urged the NEC to expeditiously investigate the Liberty Party complaints of fraud. See Court’s decision at Supreme Court – Liberty Party v. NEC
Liberia’s voters seemed to have placed their faith in the legal system to resolve the election dispute. “We do not want no violence. Whomsoever that the court will rule in favour, that’s the decision of the land, we cannot go against it,” said T. Klon Maxwell, a security guard eyeing the front pages at a newsstand in Monrovia on Saturday. News 24 – LIberia Election Delay “We just came from several years of war and we don’t want to go back to where we came from, postponing this one election is making me scare now,” said a young voter in Grand Bassa County. Local Voices – Grand Bassa Youth Nervous
Presidential candidates from the Unity, ALP, LP and ANC appear to be taking advantage of the pause to unify in favor of a new vote. Boakai, Cummings, Urey, Brumskine Remain Resolute on overturning Election Results
For additional reporting from international and Liberian press see: Bush Chicken – Runoff Election on Hold: Court Rules in Favor of Liberty Party & Bloomberg – Ex-Soccer Star Weah Fears Constitutional Crisis
Analysis – What Next?
The decision of the court has potentially far reaching consequences including the possibility of a re-run of the October 10th elections. The NEC has been ordered to investigate and make a decision on the Liberty Party complaint. If the NEC ultimately rules against the complaint, the Liberty Party is expected to appeal to the Supreme Court for a decision on the question of whether the October 10 election should be invalidated because of fraud. The time frame for the NEC to investigate and issue a decision, and for an appeal to the Supreme Court, starts to push against the terms of the current President, Vice-President and House of Representatives, potentially creating a crisis of governance. Under Article 50 of the Constitution, the Sirleaf administration ends on January 22, 2018, the “third working Monday in January.”
Article 83 outlines the time periods that must be followed when a party files a complaint about the validity of a presidential election. The complaint must be filed not later than seven days after the announcement of the results of the elections. The NEC must make a decision within thirty days of receipt of the complaint. Any political party or independent candidate affected by the NEC’s decision has seven days to appeal the decision to the Supreme Court. The Elections Commission then has up to seven days of receipt of the notice of appeal to forward all records in the case to the Supreme Court, which then has seven days to hear and make its determination. If the Supreme Court nullifies or sustains the nullification of the election the NEC must conduct new elections within sixty days of the Court’s decision. These are maximum periods. Shorter time frames could occur if the NEC and Supreme Court hasten their decisions.
The time periods provided by Article 83 can be applied to two hypotheticals to illustrate options available under Liberia’s Constitution. For purposes of analysis these are premised on the NEC making a decision on the Liberty Party complaint no later than November 22 (30 days after the Liberty Party filed its complaint), an appeal to the Supreme Court and a decision by the Supreme Court on December 13 (within 21 days of a possible Liberty Party appeal).
In the first scenario the validity of the October 10 election would be upheld by the Supreme Court, the NEC would conduct a run-off by mid-January, and a new president could conceivably take office on the “third working Monday in January” as prescribed by the Constitution.
The second scenario is more problematic and premised on a Supreme Court decision that would nullify the October 10 election and result in a fresh election. Article 83 prescribes longer time periods when fresh elections are ordered by the Court. The Elections Commission would have up to sixty days from the decision of the Court to conduct new elections for president and the House of Representatives. For example, if the Supreme Court decides on December 13 to invalidate the October 10 election, and the NEC uses the entire sixty (60) days authorized by Article 83 for electoral preparation, a fresh election might not take place until February 11 followed, if necessary, by a run-off election. That scenario could result in a fresh election actually occurring after the expiration of the terms of President Sirleaf, Vice-President Boakai and all 73 members of the House of Representatives. The succession procedure in Article 64 of the 1986 Constitution would be triggered to temporarily fill the office of President. Article 64 provides that the Speaker of the House of Representatives would be next in the line of succession as Temporary President when a president and vice-president are unable to serve. A constitutional crisis may still occur in this scenario because all seats in the House of Representatives, including that of the Speaker, would be vacant by the time a fresh election is held in February. The Senate, which had no seats on the October 10 ballot, would remain fully intact even if the election is invalidated by the Supreme Court.
The two scenarios demonstrate the options, some less perfect than others, available in Liberia’s Constitution to address the consequences of electoral disputes. It remains to be seen whether reality will mimic these hypotheticals or whether other extraordinary steps will be needed to avoid a crisis of governance.