…Refilled fresh petition documents

Following the Standard Times publication yesterday, Monday 3rd December, 2012 under the Headline “Supreme Court….John Ben &co” exposing some legal lapses in the petition filed in court last Friday, 30th November, 2012 against the National Electoral Commission, Dr. Christiana Thorpe, Victor Bockarie Foh and the All Peoples Congress Party by Mahiteh Chambers, the law firm of Anthony Brewah and Co.

on the instruction of his Clients and the Sierra Leone Peoples Party (SLPP), in which two of the petitioners, namely John Oponjo Benjamin, Chairman of the Party and Julius Maada Bio, the recently defeated Presidential Candidate of the Party refused consenting to the petition. Yesterday, Monday 3rd December, 2012 the same legal team reportedly rushed to the law court building to correct the error.

This time round a fresh petition, was refilled and all three petitioners signed both the petition and the Affidavit and filing fees to the Court Sub-Treasury.(See both documents).The petitioners had laid claim relating to the 17th November, 2012 election and prayed that the Supreme Court takes action in favour of the petitioners. The 2012 elections are over with the incumbent Dr Ernest Bai Koroma, re-elected to serve for a second term as president of Sierra Leone.

These elections were significant for a number of reasons. Firstly it was the first time in the history of the country that all elections, presidential, parliamentary and local were held on the same day. Secondly, the use of biometric voter registration was deployed for the first time. Thirdly, the democratic credentials of our country have been enhanced. However, in the midst of such laudable achievements, there are always winners and losers.

Sierra Leone Law Court Building

The main opposition party; the Sierra Leone Peoples Party (SLPP) have expressed dissatisfaction over losing the elections and have refused to concede defeat or accept the results of the elections. In the past few days they have exercised their right to challenge the results in the courts. The exercise of that right is the subject of this piece.

The Elections were conducted under the provisions of the Public Elections Act 2012, Act no 4 of 2012 which makes a number of provisions for the conduct of the elections by the National Electoral Commission. The SLPP have invoked the provision of s55 of the Act which provides:

(1)   “ A person who is a citizen of Sierra Leone and has lawfully voted may in a presidential  election challenge the validity of that election by petition to the Supreme Court within seven days after the declaration of the result of a presidential election under subsection (2) of Section 52.

(2)    A declaration by the Supreme Court that the election of the President is not valid shall not prejudice anything done by the President before the declaration.

Consequently all challenges to the election of the President must be to the Supreme Court. The Supreme Court has to consider in simple terms whether the President was validly elected. What does the phrase ‘validly elected means’? It simply means that the President was elected in accordance with the provisions of the Public Elections Act 2012 and any other applicable laws including the 1991 Constitution. In layman terms, the Supreme Court has to consider the following:

  1. Was there registration of voters?
  2. Did those validly registered voters take part in the elections?
  3. Was a significant portion of the electorate disenfranchised?
  4. Did voting take part in accordance with the law?
  5. Were the votes fully and properly counted?
  6. Did the Chairperson of NEC tally and compute the number of valid votes cast in respect of each candidate in the presidential elections?

These are some of the issues that go to the validity of the results. In legal language, the SLPP has to satisfy two tests.

  1. Were the elections conducted in accordance with the applicable provisions of the Public Elections Act 2012 and the 1991 Constitution?
  1. In the event of non-compliance with the applicable provisions of the law, was such non-compliance of such significance that it calls into question the validity or otherwise the credibility of the elections?

The issue of elections requires substantial compliance with applicable provisions of law. Insignificant or minute non-compliance cannot give rise to a successful challenge on validity grounds.  The word valid is not defined in the Act. Consequently the ordinary meaning of the word will suffice.  The word valid has been expressed in the Oxford English Dictionary to mean ‘sound; just; well-founded, having force, weight, or cogency, authoritative, legally sound, effective or binding, having legal force, healthy etc. These words denote the test the SLPP would have to satisfy if they are to succeed in their assertion that the election of the President was invalid.

Having considered the petition in its entirety, there are a number of issue that raise immediate concerns. It is undeniably the case that the Petition was lodged at the court on Friday 30th November 2012. It has been suggested that at the time the petition was lodged with the court, it was outside of the normal business hours of the court and consequently the judicial sub treasury which is empowered to collect court fees for onward transmission to the consolidated fund, was closed. Consequently the fee for filing such petitions was not paid. It was further suggested that the fee would be paid the next business day which was today 3rd December 2012. Is that significant?

It is highly significant on the basis that there is a subtle difference between lodging of documents and filing of legal documents in a court. Physically taking the petition to the court and handing it over to the court is simply lodging. To file a document, requires payment of the court fees, which is the administrative charge that entitles the claimant/petitioner to have his claim heard by the court. Where no fees are paid, the claim cannot be properly issued in other words filed as required by law. Consequently, the papers may be physically inside the court but at the same time have not been ‘filed’ in accordance with the law.

This simply means that there is no valid claim before the court as the matter was not properly before the court owing to non-payment of the court fees. In so far as the SLPP petition is concerned, the question is whether the claim is out of time. Going back to s55 of the Public Elections Act 2012, any challenge to the presidential election must be done within seven days after the declaration of the results.

If the matter is not properly before the court ie ‘filed’ with the appropriate fees paid within the seven day period, the right to challenge the result is lost. The petition is statute barred. This may deprive the court of jurisdiction to hear the petition. There is therefore a question mark as to whether the petition is already dead even before it has been heard.

It is also interesting to note from the SLPP petition that the bulk of their complaints relate to malpractices in the conduct of the elections. They refer to these malpractices as:

  1. Instances of pre-marked voted/ ballot papers in favour of Ernest Bai Koroma issued nationwide.
  2. That NEC failed to investigate an extra pallet (suspected to be fake election materials) transported with election materials belonging to NEC from South Africa to Freetown
  3. Fake RRF forms were used by NEC officials to doctor or manufacture results in favour of the presidential candidate
  4. Failure by NEC to conduct the elections with impartiality by refusing to declare null and void substantial incidents of over voting in Kono, Northern Province and Western Area.
  5. That polling agents of the SLPP were arrested and detained leaving the elections to be carried out without the agents of the SLPP.
  6. Numerous cases of over voting in Kono, Western Area and Northern Province.
  7. Widespread Intimidation of SLPP agents on polling day.
  8. Missing ballot papers

The question for the court to determine is whether these complaints are substantial enough to invalidate the election of the president. The two key complaints about fake election materials being transported are matters for the police to investigate and not NEC pursuant to part X of the Public Elections Act 2012.

All the instances of widespread over voting will require clear evidence to show that they were substantial in nature. Most importantly the SLPP needs to show that the various presiding officers results are wrong and consequently the declaration of results pursuant to s52 (2) of the Public Elections Act 2012 was defective and consequently illegal. In so far as over voting is concerned, the SLPP would need to show that the number of votes cast exceed by a significant margin the total number of registered voters.

The total number of votes declared by NEC as valid votes is less than the total number of registered voters. That is a major flaw in a key component of the SLPP claim. It remains to be seen how the Supreme Court would deal with these issues.

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