When the chairperson of the National Elections Commission (NEC) announced that the run-off elections would be held on November 14 rather than November 7, many observers said that the commission had made a mistake.
The run-off is between incumbent President George Weah and his main challenger, Joseph Boakai after they missed a victory in the first round.
Weah received 804,087 votes, or 43.83% of the vote, according to the NEC, in the October 10 election. Former Vice President Boakai received 796,961 votes, or 43.44% of the vote. The Constitution requires that neither of the two candidates receive 50% of the vote.
The electoral body chair, Davidetta Browne-Lansanah, stated on October 24: “With the results of the October 10 polls showing that no presidential ticket received 50% plus one vote, a run-off election is hereby declared to be held on November 14 between the two tickets that received the highest number of votes.”
After the pronouncement, legal scholars and constitutional experts have argued that this date goes against Article 83(b) of the Liberian Constitution.
Article 83(b) of the Liberian Constitution states unequivocally, “If no candidate obtains an absolute majority in the first ballot, a second ballot shall be conducted on the second Tuesday following.”
When pressed by journalists, the NEC chair stated that the new date was based on the commission’s legal advice and the Supreme Court ruling.
We contacted former Associate Justice Kabineh Ja’neh, who stated that the commission made a mistake by not stating exactly what the Supreme Court said.
“The day the announcement is made is not counted; the second Tuesday following should not be later than November 7, and they have to tell the public the exact reason for the change of date,” said Cllr. Jan’neh.
Cllr. Varney Sherman, a 2023 defeated Cape Mount senator, stated that the Commission did not violate the Constitution.
“The referendum allowed for a simple majority for all elections for public offices, except the presidential election, which must be determined by an absolute majority (at least 50% + 1). With the amendment, the NEC has not violated the Constitution,” said Cllr. Sherman.
He said the NEC is reading Article 83(b) in conjunction with Article 83(c). “Article 83(c) of the Liberian Constitution states: “Any party or candidate who complains about how the elections were conducted or who challenges the results thereof shall have the right to file a complaint with the Elections Commission.
Such a complaint must be filed not later than seven days after the announcement of the results of the elections,” and under Section 6.1 of the Elections Law of Liberia, which states that “any political party or candidate who has justifiable reasons to believe that the elections were not impartially conducted and not in keeping with the Elections Law, which resulted in his defeat or the defeat of a candidate, shall have the right to file a complaint with the Commission; such a complaint must be filed not later than seven (7) days after the announcement of the results of the elections”.
Cllr. Sherman furthers that whatever interpretation there is, what effect would a news publication have on the NEC’s decision?
“To change the NEC decision, only a party of interest (CDC or UP) could be deemed by the Supreme Court to have legal standing. Don’t forget that our Supreme Court is quick to invoke the “legal standing” concept to starve off a constitutional challenge or avoid addressing a constitutional issue,” said Cllr. Sherman.
He then wonders if either of the two parties (CDC and UP) does not require the time provided by the NEC and thus is not interested.
We then contacted the NEC’s legal division, and Atty. Teage Jalloh stated that the date change was made to ensure that all complaints before the NEC were exhausted before the run-off, as advised by the high court.
In 2017, the run-off between the current candidates in 2023 was challenged by deceased Liberty Party political leader Charles Brumskine and UP Boakai on claims of widespread fraud in the elections.
However, the Supreme Court dismissed the claims by the third-place finisher of the October 10, 2017 presidential election.
In 2017, former soccer star Weah won 39% of the vote, ahead of Boakai, who gained 29% in the first round.
A petition for a writ of prohibition was filed by the Liberty Party, and the high court granted the writ because the court said the NEC should have exhausted all election complaints before setting the run-off date.
The high court said there is no dispute that the NEC is the body vested with the authority to conduct elections in Liberia, including run-off elections, where the conditions for such elections, as laid down by the Constitution and statutory laws, are present.
The ruling continues that, despite having jurisdiction, the NEC must proceed legally and properly. However, by setting a date and proceeding with the run-off election without first hearing and deciding the petitioners’ complaint, which alleged gross irregularities and fraud, etc., the NEC was acting in violation of rules that should be followed at all times.
We also reviewed the December 21, 2017, final ruling by the court, where the writ was quashed but reminded the NEC to exhaust all complaints before the electioneering body before setting a date for the run-off.
A research fellow at the high court, Saidu Nyei, posted on his social media page posted the commission was in error: “The lawyers at NEC erroneously interpreted the Supreme Court Opinion delivered on December 21, 2017. The run-off date is contrary to the Constitution!”
Nyei said the court was specifically considering presidential election complaints.
At the same time, the two political parties, in response to our inquiry, said, “The NEC is the regulator of elections. Shouldn’t all parties abide by their pronouncements? Kanio Gbai Bala is the spokesperson for the CDC. Mo Ali, the UP spokesperson, declined to respond to our inquiry
Conclusion: According to Article 83(c) of the constitution, complaints must be filed no later than seven (7) days after the announcement of the election results. However, we cannot confirm whether or not the electoral body will complete all election complaints before the run-off.
Even though the case was filed by two presidential candidates, we found nowhere in the Supreme Court’s opinion that the NEC should conclude only presidential complaints rather than other election cases, as stated by Nyei.
It is fair to say that the court did not define the election issues that the NEC should resolve before scheduling the run-off.