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ELECTORAL COMMISSION MISCONDUCT: SUPREME COURT DECLINES

By Dr. Bu-Buakei Jabbi.

The Ruling

1.    By its ruling delivered on 25th May 2012, a three-member panel of the Supreme Court unanimously refused the application by the Plaintiffs/Appellants in S. C. Civ. App. No. 2/2011, SLPP & 2 Others vs. Dr Christiana Thorpe, Chief Electoral Commissioner, & Electoral Commission, for leave to serve out of time upon the Respondents the filed appeal documents for substantive appeal hearings to commence; although it still left the Plaintiffs/Appellants “at liberty to apply to the full court” for the ruling to be “varied, discharged or reversed”, if possible.

2. The effect of the ruling is that, unless it is “varied, discharged or reversed” by a five-member panel of the “full court” upon a further application to them, the Supreme Court will not permit service of the filed documents upon the Respondents in order that it may hear and determine the substantive appeal itself.   And since the “full court” as “constituted by five Justices thereof” may necessarily include the three who unanimously took the present decision, it is highly improbable (though not necessarily impossible) that the ruling will even be “varied”, let alone “discharged or reversed”.

3.    With such improbability, the Supreme Court has in effect decided that, unless otherwise determined by the “full court” on a fresh application, it cannot and will not be adjudicating the alleged misconduct, unlawfulness and unconstitutionality of the Electoral Commission’s unilateral nullification of the entire totality of the votes cast at each of no less than 477 polling stations in the 2007 Presidential elections, which is the main issue in S. C. Civ. App. No. 2/2011.

4.    An overview of the judicial march of this matter through “the Superior Court of Judicature” of Sierra Leone may set the ruling in proper perspective.

High and Appeal Courts.

5.    The matter had started in the High Court as far back as December 2007by way of an Originating Notice of Motion, seeking judicial review (not a petition) of the Electoral Commission’s cancellation of all votes cast at each and all of 477 polling stations at the 2007 Presidential elections, which would ultimately have to be referred or appealed to the Supreme Court for final determination.   The Applicants were seeking to urge the courts to rule that the Electoral Commission had no such power in law and that it was unlawful for it to have invoked and enforced it; indeed, that the said power was even inconsistent and incompatible with the fundamental founding electoral provisions in sections 31 and 33 of the Constitution of Sierra Leone, Act No. 6 of 1991, and so ought otherwise to be “void and of no effect.”

6.  The High Court had dismissed the application on 7th March 2008 without costs, ruling that the matter was within the exclusive jurisdiction of the Supreme Court, but granting the Plaintiffs leave to appeal against the decision.   The Judge refrained from directly “referring” the matter to the

Supreme Court under either of sections 45(2) or 124(2) of the Constitution, as she indeed had the power to do if she so saw it fit.

7. So the matter was appealed to the Court of Appeal on 25th March 2008, with the Learned Justices of Appeal deciding on 8th January 2009 that they were “of the view that the matters raised in the appeal are matters which should be dealt with by the Supreme Court in its original jurisdiction;”

and so they dismissed the appeal.   As in the High Court, they also did not choose to directly “refer” it themselves to the Supreme Court under either of sections 45(2) or 124(2) of the Constitution, as the Court

of Appeal indeed had the power to do if it so saw it fit.

8. Both the High Court and the Court of Appeal were, in fact, being merely evasive in order to avoid having to deal with any of the substantive issues in the matter before them.

Pre-Supreme Court

9.    However, the Plaintiffs could not then file an appeal early enough against the 08/01/09 decision of the Court of Appeal due to a few factors. Firstly, they wanted to fully report to delegates and the general membership of the Sierra Leone People’s Party (SLPP) on the litigation and prospect of appeal at an SLPP National Convention due to be held in Kenema on 6th – 9th March2009, which would still be well within the time allowed for the appeal.

10. But soon after doing so at the Convention, the Party was faced with a series of violent and seriously destructive and rapist attacks on its members and office structures nationwide and on the Party’s national headquarters and radio station in Freetown on 13th and16th March2009, all of it by hoodlum suspects from the All Peoples Congress (APC).These were then followed

by a sustained series of rehabilitation exercises on SLPP offices nationwide and by tripartite peace negotiations for several weeks spearheaded by the international community, with the peace negotiations culminating in the issuing of a Joint Communiqué between the ruling All Peoples Congress(APC) and the SLPP,which was signed on 2nd April 2009.   (A Committee of Inquiry was later appointed under the Joint Communique, which largely confirmed the violence allegations).   However, by the time instructions were given to do the appeal, the time allowed for that by the rules had already expired, leaving only the option to seek leave and enlargement of timeout appeal to the Supreme Court.

Supreme Court (1)

11.    So the Plaintiffs had to file a Notice of Motion in the Supreme Court on 1st May 2009, seeking leave and enlargement of time within which to appeal against the 08/01/09 decision of the Court of Appeal. The motion was ultimately argued before a 3-member panel of the Supreme Court, with Counsel for the Respondents objecting that the relevant rules of court granted no right of appeal in the matter; while the Plaintiff’s Counsel countered that the right of appeal in the matter was in fact expressly stipulated by the Constitution itself.    By mid-June 2009 their Lordships of the interlocutory panel adjourned the matter sine die for them to deliver the ruling on a date to be determined by them.

12. But from then on, even for such a merely interlocutory decision as distinct from a substantive one, it took some twenty-two (22) months, nearly two (2) years, for the Supreme Court to give notice for delivering their ruling.    So the ruling was delivered on 2nd May 2011, by way of a Certificate of the Order of the Supreme Court granting to the Plaintiffs leave and enlargement of time within which to appeal against the 08/01/09 decision of the Court of Appeal.

Pursuant to the said ruling, and notwithstanding an ongoing spate of highly engaging internal organizational and litigating preoccupations of the SLPP at that time, on the very next day, 3rd May 2011, the Plaintiffs’ Counsel managed to urgently file or lodge in the Supreme Court their Notice of Appeal, S. C.Civ. App. No. 2/2011, against the08/01/09 decision of the Court of Appeal, thereby indicating their determination to pursue the appeal in the Supreme Court.

13.    However, as earlier on in March 2009,by this time the Plaintiffs as a political Party, including even their advocating Counsel in the present S. C. Civ. App. No. 2/2011, were deeply and intensely engrossed in a series of sustained high-level internal preoccupations of the Party, this time in the form of constitutional litigation among or between themselves about the Party in the same Supreme Court (S. C.No. 1/2011, Jabbi vs. SLPP & 3Others) and an even more intense nation-wide internal National Executive and Presidential Flagbearer election exercise towards a Party National Conference and a Running-Mate selection process thereafter, which in all stretched over some nine(9) months from early February to early November 2011.Their advocating Counsel in various litigations was himself at the same time(so goes their own internal Party  democracy)both a contesting Flag bearer Aspirant and also the complainant or Plaintiff against the rest of his Party, the SLPP, as Defendants in the said S. C. No. 1/2011, which he portrayed as being ultimately in the essential institutional interest of the Party itself.

 

14.It thus seemed unavoidably impracticable, hardly consistently dispassion-friendly for the Party or for its advocating Counsel and co-litigant, and possibly even time-table congested as well for the Supreme Court itself, to have such litigants engage more or less simultaneously in such clash of proceedings in the same Supreme Court, in the one case seemingly against each other (as in the then ongoing. C. No.1/2011) and in the other case at least cooperatively against others (as in the then pending appeal hearings in S. C.Civ. App.No.2/2011).

Supreme Court (2)

15.    Soon after completion of the intensely complex internal operations of the SLPP, as outlined above, their advocating Counsel in S. C. Civ. App. No. 2/2011 ensured that a Notice of Motion dated17th November 2011 was filed in the Supreme Court in respect of the Notice of Appeal

Dated 3rd May 2011 seeking mainly an order for leave and enlargement of time within which to serve copies of the said Notice of Appeal upon the Respondents in order that the substantive appeal hearings may commence at last. With the motion coming up before the Supreme Court on14th February 2012, both sides were heard and the matter adjourned sine die for the Court to deliver its ruling on a date to be determined by it.

 16.But when for nearly three (3) months since then no notice of hearing had again been issued for delivering that ruling, Plaintiffs/Appellants’ Counsel had to send a stern reminder dated 30th April 2012.And even then a notice was sent only three (3) weeks afterwards that the awaited ruling “will be delivered on 25th May 2012”.

New Bill

17.By that time, however, the alleged misconduct of the Electoral Commission seemed to be ironically running a simultaneously self-vilifying and self-validating course.   On 29th March 2012 a Bill was published entitled the Public Elections Act, 2012, which was actively before Parliament by mid-April and was reputedly actually passed by Parliament on 2nd May 2012

and put on course for presentation to His Excellency the President for his signature as the final validating and legislating feature.   With the 2012 Presidential, Parliamentary, and Local Council elections due within six (6) months, sections 85(3) and 87 of the Bill seek to validate or legalise, or perhaps even canonize, powers for the Electoral Commission and its agents to invalidate all votes cast in any ballot box in any polling station without even opening it for counting and also all votes cast at the entirety of any number of polling stations throughout the country for purported “over-voting”, thereby incidentally also conceding in effect that the Electoral Commission’s previous use of such a power in 2007 was clearly unlawful and unwarranted in law. The legislative, political and general atmosphere in the country at the time was thus intensely agog and rife once again with threatened canonization of serious breaches of the national Constitution that had been allegedly brazenly committed by the Electoral Commission in 2007 and had since been before the higher courts of the land and was right now on appeal in the highest court of all, the Supreme Court.

18.And so, with the Supreme Court’s ruling of 25th May 2012 on that appeal being still only forthcoming by then, and the new Bill dealing so extravagantly with the very subject matter of the appeal in the Supreme Court, this writer saw the need to send two detailed Open Letters to the President, dated 4th and 14th May 2012 respectively, analytically arguing the unconstitutionality of both sections 85(3) and 87 of the Bill and, in particular, their inconsistency and incompatibility with the fundamental founding electoral provisions in sections 31 and 33 of the Constitution, and accordingly urging the President not to sign the Bill if it still included those provisions when presented to him for his signature.   The Open Letters were fully published and widely reported in several local newspapers on 9th, 10th, 11th, 14th, 21st and 23rd May 2012, and the writer was hosted on various radio and television interviews on the issue over that period.    And all of this was just before the Supreme Court’s ruling was due to be delivered on 25th May 2012.

Janus-headed

19. And that ruling, when it finally came, dealing with relevant Supreme Court Rules that are mainly directory rather than mandatory (Rules 35(1) and 103), ultimately rested squarely on the exercise of discretion by the court.   And discretion, especially judicial discretion, is classically Janus-headed, with multiple faces.  Looking at the head from top, bottom, sideways or anyhow else (even possibly from inside), apart from the face towards you, there are other faces looking in other directions, even in opposite direction to the one facing you, without necessarily being wrong directions as such.   And so in a discretional judicial decision, the court chooses the face or direction it considers appropriate to the situation before it, in all the relevant circumstances, whichever other direction may also be quite persuasive or perhaps even more legitimately applicable.

20.  And so, notwithstanding the well-publicised threatened canonization by the new Bill of such serious breaches of the national Constitution as had been allegedly committed by the Electoral Commission in 2007, the interlocutory panel of the Supreme Court, even in presumed full or clear knowledge of all the foregoing, nonetheless unanimously ruled refusing the application for leave to serve the Respondents out of time with the appeal documents that had already been regularly filed.   By that ruling, it was effectively declining to have the appeal come up before it for a full-scale substantive trial hearing of the alleged misconduct of the Electoral Commission in infringing the national Constitution.

21.    Eyh, Boh, SuprimKot!   Yu nor trai, oh!   Yu fohm ….. bad-bad-bad-bad wan!  Du yah!

 “Yu Fohm ….!”

22.    The main problem with the ruling by the Supreme Court is that it completely turns its  judicial discretion “face” and “eyes” away from the alleged serious contraventions of the Constitution by the Electoral Commission, even with the currently open flowing evidence of the attempt to canonize them by improper legislation, as factors in considering whether to waive the non-compliance and have the filed appeal documents served on the Respondents for substantive hearings on the alleged constitutional infringements to commence and proceed to conclusion.

 23.For with such allegations having endured and survived initial evasive judicial treatments, including even an excessive two-year delay by the Supreme Court itself in acknowledging their right to be adjudicated upon before it, not to talk of the extraordinary political vendetta and internal litigant-Party preoccupations that also sometimes stood in the way, as it were, when once they ultimately secured their being lawfully filed or lodged before the highest court of the land having exclusive original jurisdiction over them, no other procedural technicality should have prevented them from being substantively heard by that court, especially considering that they are

alleging serious contraventions of the Constitution, “the supreme law of Sierra Leone”.   In such a case, as per Supreme Court Rule 103: “The Court may, in such manner as it thinks fit, direct the appellant …… to remedy such non-compliance, and thereupon the appeal shall proceed.”

24.Indeed, in all modern systems and jurisdictions where written constitutions are the “supreme law” of the land, the primacy and supremacy of the Constitution override all other considerations when judicially dealing with the enforcement, interpretation or alleged contravention of the Constitution.   And that is more so, as it is in Sierra Leone, where the highest Court of the land is also enshrined with “original jurisdiction, to the exclusion of all other

courts” over enforcement and interpretation of the Constitution (section 124).

25. A few judicial citations from other jurisdictions with written Constitutions as their “supreme law” may be instructive here.

(a)                   “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure…..

It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.  Their motto should be Obsta Principiis (Nip itin the Bud).”  {Per Bradley J, delivering the judgment of the

USA Supreme Court, Boyd vs. US (1886) 116 US 616 SC, at p. 635}.

 

(b)                 “The court has a duty to see that the Constitution is not infringed and to preserve it inviolate.   Unless therefore there is some very cogent reason for doing so, the court must not decline to open its eyes to the truth.” {Per Lord Pearce, speaking for JCPC,

Bribery Commissioner v. Ranasingbe(1964) 2 All ER 786 PC (Ceylon), at p. 790E.

 (c)   “The Court’s primary concern, therefore, in any case where a contravention of the Constitution is invoked, is to ensure that it be redressed as conveniently and speedily as possible.” {Per unanimous Court, Vallet v. Ramgoolam(1973) MR 29 SC (Mauritius), at p. 34}.

 

26.    The subject matter of the appeal being such major constitutional issues, and more than 95% of its procedural processing before the courts having been accomplished, it was clearly somewhat remiss on the part of the Supreme Court not to allow it to proceed to substantive hearing.   For thereby, it prevented itself from being “watchful” enough to see how “illegitimate and unconstitutional practices get their first footing”, how “to ensure that it be redressed as conveniently and speedily as possible”, and how therefore, as a highest court being entrusted with exclusive original jurisdiction to do so, it must “not decline to open its eyes to the truth.”

 

Signature:…………………………………

Dr. Bu-Buakei Jabbi

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