BEFORE THE HONORABLE SUPREME COURT OF REPUBLIC OF LIBERIA SITTING IN ITS OCTOBER TERM, A.D. 2017

PRESENT: His Honour Francis S. Korkpor, Sr.    …….. …      Chief Justice
“        His Honour Kabineh M. Ja’Neh……………….     Associate Justice
“        Her Honour Jamesetta Howard-Wollokolie  ....      Associate Justice
“        His Honour Philip A.Z. Banks, III……………..     Associate Justice

 

Joseph Nyumah Boakai and James
Emmanuel Nuquay, Presidential and
Vice Presidential Candidates at the
October 10, 2017 Elections and the
Unity Party, all of Liberia...………………...APPELLANTS)
)
VERSUS                                                                    )
)           APPEAL
The National Elections Commission,                                     )                                              
Represented by Hon. Jerome Korkoya,                                  )
Chairman, of Monrovia, Liberia…………….…APPELLEE)          

GROWING OUT OF THE CASE:

Joseph Nyumah  Boakai and James
Emmanuel Nuquay, Presidential and
Vice Presidential Candidates at the
October 10, 2017 Elections and the
Unity Party, all of Liberia                                                      
………….………CO-COMPLAINANTS/INTERVENORS)
)
AND                                                                           )
)
Charles Walker Brumskine and Harrison                               )
S. Karnwea, Presidential and Vice                                         )           Violations of the Constitution
Vice Presidential Candidates at the                                        )           and Elections Law, Gross
Representative Candidates of Liberty                                    )           Irregularities During the
Party and the Liberty Party, all of Liberia                              )           October 10, 2017 Elections
……………………………..………CO-COMPLAINANTS)
)
VERSUS                                                                    )
)
)
The National Elections Commission,                                     )                                              
Represented by Hon. Jerome Korkoya,                                  )
Chairman, of Monrovia, Liberia                                             )
………………………………………………DEFENDANT)         

 

           
APPELLANTS’ BRIEF
Joseph NyumahBoakai and James Emmanuel Nuquay, Presidential and Vice Presidential Candidates at the October 10, 2017 Elections and the Unity Party
APPELLANTS/INTERVENORS

           
I.          FACTS:

1.1.      Elections were conducted by Appellee on October 10, 2017 and the final results announced on October 19, 2017. On October 23, 2017, Charles Walker Brumskine, Harrison S. Karnwea, Presidential and Vice Presidential Candidates, all Representative Candidates of the Liberty Party and the Liberty Party itself filed a complaint with Appellee, in which they alleged that the elections were fraught with violations of the Constitution and Elections Law, massive frauds and gross irregularities. And for those reasons, they prayed that Appellee annuls the October 10, 2017 elections and orders a re-run thereof. Subsequent to that, Joseph Nyumah Boakai and James Emmanuel Nuquay, Presidential and Vice Presidential Candidates and the Unity Party, Appellants/Intervenors, filed a Motion to Intervene and an Intervenors’ Complaint in which they made the same allegations as the first group of complainants, augmented those allegations by additional allegations, and prayed that: (1) Appellee annuls the October 10, 2017 elections and orders a re-run thereof; or (2) if Appellee determines that the evidence submitted by Appellants/Intervenors does not rise to the level to cause a re-run of the October 10, 2017 elections, then before a runoff of an election between Honorable George Manneh Weah of the Coalition for Democratic Change, on the one hand, and Honorable Joseph Nyumah Boakai of the Unity Party, on the other hand, takes place, the violations of the Constitution and Elections Law, massive frauds and gross irregularities, proved by evidence at the hearing, should be corrected so that free, fair and transparent run-off election would be conducted.

1.2.      As provided by law and regulation, Appellants/Intervenors were allowed to intervened in the hearing that was being conducted by the Chief Dispute Hearing Officer (CDHO); and at the end of the hearing, on November 20, 2017, the CDHO rendered a Final Ruling in the following words:

“WHEREFORE AND IN VIEW OF ALL THAT I HAVE SAID ABOVE, the National Elections Commission (Appellee) is mandated to take the necessary steps to correct all what they alluded to as difficulties and challenges before any future election.

“The first Complainants and the Intervenors/Complainants having failed to prove the allegations of irregularities and fraud, that would warrant the re-run of the October 10, 2017 elections, said complaints are hereby denied and dismissed.”

1.3.      Appellants/Intervenors excepted to the CDHO’s Final Ruling, announced Appeal to Appellee’s Board of Commissioners and filed Bill of Exceptions. On formal assignment, the electoral dispute was scheduled before Appellee’s Board of Commissioners for argument of the Appeal. Appellants/Intervenors filed an Appellants/Intervenors’ Brief, served it all parties to the electoral dispute, and appeared for arguments and participated in the oral arguments before Appellee’s Board of Commissioners.

1.4.      Before the oral arguments, Appellants/Intervenors brought to the attention of Appellee’s Board of Commissioners that they, along with the first complainants, had filed a Motion for Appellee’s Chairman to recuse himself for reasons stated in the aforesaid Motion. The Motion was argued and denied by Appellee’s Board of Commissioners and Appellee’s Chairman, Cllr. Jerome Korkoya, was allowed to continue to participate and preside over the proceeding before Appellee’s Board of Commissioners. To which ruling on the Motion, Appellants/Intervenors excepted and proceeded to present their side of the oral argument of the main proceeding before Appellee’s Board of Commissioners.

1.5.      In addition to the oral arguments, Appellants/Intervenors present written Brief to Appellee’s Board of Commissioners. At the end of the oral arguments, Appellee’s Board of Commissioners suspended the matter for a few hours, returned and entered its Final Ruling in the following words:

“… Accordingly, we hold that the Hearing Officer did not err, and 1st and 2nd Appellants’ request for a rerun of the October 10, 2017 elections is hereby denied. … WHEREFORE AND IN VIEW OF THE FOREGOING, Appellants’ appeal is hereby denied. The Hearing Officer’s final ruling in these proceedings is hereby confirmed and affirmed. AND IT IS EHREBY SO ORDERED.”.

         1.6.         To this Final Ruling of Appellee’s Board of Commissioners, Appellants/Intervenors excepted and announced an appeal to the Supreme Court, as is provided by the Elections Law and the Constitution. Appellants/Intervenors now submit their written Brief in support of their oral arguments before the Supreme Court.

II.        ISSUES:

2.1.      Did the evidence adduced by Appellants/Intervenors at the hearing before the CDHO and the arguments before the Appellee’s Board of Commissioners prove irregularities committed by Appellee before and during the course of the October 10, 2017 elections, which are sufficient to warrant the annulment of those elections or grave enough to require specific remedial actions before a run-off election?

2.2.      Did the evidence adduced by Appellants at the hearing by the CDHO and the arguments before Appellee’s Board of Commissioners prove that frauds had been committed before and during the course of the October 10, 2017 elections, which are sufficient to warrant the annulment of those elections or grave enough to require specific remedial actions before a run-off elections?

2.3.      Is the CDHO’s Final Ruling, which was unqualifiedly and unreserved confirmed by Appellee’s Board of Commissioners, so vague, indefinite, ambiguous and uncertain so as to make it impossible of enforcement and therefore subject to reversal or modification?

2.4.      Did Appellee’s Board of Commissioner err when it denied the Motion to Recuse filed against the participation of Appellee’s Chairman, Cllr. Jerome Korkoya, over the hearing of Appellants/Intervenors’ Appeal before Appellee’s Board of Commissioner and against his participation in whatever form or manner in a rerun elections or run-off election, whichever is ordered by the Supreme Court?

2.5.      Given that it is Appellee’s Executive Director who planned and produced the flawed SMS verification system, advised Appellee to use it for the October 10, 2017 elections, appeared on the witness stand at the trial and give false statements, made misrepresentations and blatantly lied in order to cover up the irregularities and frauds committed before and during the course of the October 2017 elections, can he impartially serve in that position for re-run elections or run-off election, whichever is determined by the Supreme Court?

 

III.       DISCUSSIONS

PROOF OF IRREGULARITIES COMMITTED BY APPELLEE
BEFORE AND DURING THE COURSE OF THE OCTOBER 10, 2011 ELECTIONS

3.1.      Did the evidence adduced by Appellants/Intervenors at the hearing before the CDHO and the arguments before the Appellee’s Board of Commissioners prove irregularities committed by Appellee before and during the course of the October 10, 2017 elections, which are sufficient to warrant the annulment of those elections or grave enough to require specific remedial actions before a run-off election?

3.2.      Appellants/Intervenors submit that the entire Final Ruling of the CDHO ignored the cogent evidence, unrebutted and not discredited by the Appellee, adduced by Appellants/Intervenors at the hearing and the controlling law. Appellants/Intervenors submit that Appellee’s Board of Commissioners committed the same error as they too ignored the cogent evidence adduced by Appellants/Intervenors, not discredited or rebutted by the Appellee, and the controlling law.

3.3.      Appellants/Intervenors say that the evidence adduced by them shows that Appellee violated the Constitution and Elections Law by denying the right to vote to thousands of Liberian citizens eligible to vote pursuant to Art. 77(b) of the Constitution and Section 3.1 of the Elections Law. And yet in his Final Ruling the CDHO ignored that evidence and the controlling law; Appellee’s Board of Commissioners committed the same error. The evidence adduced by Appellants/Intervenors, which shows that Appellee violated the rights of thousands and thousands of Liberians to vote on October 10, 2017 are: (1) the names of thousands and thousands of registered voters were not found on the Final Registration Roll (proved by corroborated, yet unrebutted, oral testimonies of witnesses, video recording, and 182 voter registration cards which were not punctured as should have been done had the owners of those voter registration cards voted); (2) hundreds of registered voters, contrary to law, had several voter registration cards and voted multiple times. The CDHO erroneously denied Appellants/Intervenors’ application to admit the 182 voter registration cards into evidence, to which Appellants/Intervenors excepted. The CDHO also erroneously ignored this evidence intended to substantiate that some voters had several voter registration cards and voted multiple times. In his Final Ruling, the CDHO erroneously ignored the evidence (the three voter registration cards for a Raymond Sokolo, already punctured as evidence of having been used to vote), which is germane and material to this election dispute; and Appellants/Intervenors excepted. In their Final Ruling, Appellee’s Board of Commissioners also further ignored that evidence; and for this Appellants/Intervenors again excepted.

3.4.      Section 3.6 of the Elections Law provides that the voter registration roll for each registration center shall be opened for public inspection at the offices of the Magistrates of Elections and copy of each roll may be kept at such places as Appellee may designate for public inspection. Appellants/Intervenors adduced evidence that Appellee did not comply with this requirement of law; and yet in his Final Ruling the CDHO did not reflect the consequences of this non-compliance by Appellee on the fairness, freeness and transparency of the October 10, 2017 elections. Appellants/Intervenors also produced witnesses (including a former Chairman and former commissioner of the National Elections Commission – in persons of Cllr. Frances Johnson-Allison and Hon. David Menyongai), who testified that for all previous elections, the voter registration roll for each precinct was published at the polling place where the voters registered. Publication, Appellants/Intervenors submit, means that the voter registration roll was and must be printed in hard copy (on paper) and posted for public inspection at the offices of the election magistrates and at each polling place. This evidence was not rebutted or contradicted at the hearing before the CDHO. Yet the CDHO did not pass on the impact of this evidence on the matter before him; and Appellants/Intervenors excepted. And even though the issue was argued before Appellee’s Board of Commissioners, Appellee’s Board of Commissioners failed and neglected to pass on it and to determine how this evidence affected the fairness, freeness and transparency of the October 10, 2017 elections. So, Appellants/Intervenors excepted and prays Your Honours to rule and hold that this failure to publish the voter registration roll in the manner prescribed by law materially, adversely affected the fairness, freeness and transparency of the October 10, 2017 elections. Appellants/Intervenors pray Your Honours to also rule and hold that such departure from the requirements of law and Appellee’s own custom is sufficient to cause a re-run of the October 10, 2017 elections; and if not a re-run, is sufficient to require that the voter registration roll be published as required by law and custom at each voting precinct or polling place before a run-off election is conducted.

3.5.      Appellants/Intervenors submit that the requirement of law and regulation for Appellee to post the voter registration roll, especially the Final Registration Roll (“FRR”) at each registration center or voting precinct is that so an eligible voter, even in the remotest part of Liberia, who registered to vote, will be able to see and determine whether his/her name and particulars are on the FRR, and will also be able to determine whether the FRR has the name of someone who is not eligible to vote or who does not reside in his/her community (especially those communities which border other countries). Appellee’s failure to publish the FRR in hard copy (on paper) at the registration centers and voting precincts was therefore a serious violation, which materially impacted the fairness, freeness and transparency of the October 10, 2017 elections. Appellants/Intervenors pray Your Honours to also rule and hold that such departure from the requirements of law and Appellee’s own custom is sufficient to cause a re-run of the October 10, 2017 elections; and if not a re-run, is sufficient to require that the voter registration roll be published as required by law and custom at each voting precinct or polling place before a run-off election is conducted.

            3.6.      Further to Paragraph 3.5 above, Appellants/Intervenors’ interpretation of the clause,  “… copy of each roll may be kept (by Appellee) at such places as the Commission (Appellee) may designate for public inspection” (even though permissive by the use of the word, “may”), is that the voter registration roll (or at least the portion relevant to each voting precinct) should be kept at the voter registration centers and voting precincts (polling places) for inspection by the public. According to Cllr. Francis Johnson-Allision (Appellee’s former Chairman) and Hon. David Menyongai (Appellee’s former Commissioner for more than seven (7) years), this is the interpretation, which has heretofore been given to Section 3.6 of the Elections Law by previous administrators and regulators of elections in Liberia. Appellants/Intervenors therefore pray Your Honours to rule and hold that Appellee’s departure from the requirements of law and Appellee’s own custom (practiced for the 2005 elections and the 2011 elections) is sufficient to cause a re-run of the October 10, 2017 elections; and if not a re-run, is sufficient to require that the voter registration roll be published as required by law and custom at each voting precinct or polling place before a run-off election is conducted.  

            3.7.      Appellants/Intervenors submit that their interpretation of Section 3.6 of the Elections Law, complied with by Appellee for the 2005 elections and the 2011 elections, and supported by Appellee’s own Voter Registration Regulations of August 12, 2016 (Arts. 22.1 & 22.2), is that Appellee shall certify the FRR and print one copy for each polling place. (EMPHASIS OURS). The ruling of Appellee’s Board of Commissioners that only the Provisional Registration Roll (“PRR”), not the Final Registration Roll (“FRR”) is required by Section 3.6 of the Elections Law to be published or posted at each registration center is therefore clearly erroneous and reversible. And Appellants/Intervenors pray Your Honours to rule and hold that Appellee’s departure from the requirements of law and Appellee’s own regulation and custom (practiced for the 2005 elections and the 2011 elections) is sufficient to cause a re-run of the October 10, 2017 elections; and if not a re-run, is sufficient to require that the voter registration roll (the FRR) be published as required by law, regulation and custom at each voting precinct or polling place before a run-off election is conducted.  

3.8.      Appellants/Intervenors say that Appellee’s failure to publish the FRR at each polling place (at least the portion of the FRR which covers the registration center relating to the polling place) in violation of law, Appellee’s own regulations and its custom from the 2005 elections and the 2011 elections, is one of the major irregularities, which Appellants/Intervenors complained of and which undermined the fairness, freeness and transparency of the October 10, 2017 elections. For this reason, Appellants/Intervenors excepted to the ruling of Appellee’s Board of Commissioners. And Appellants/Intervenors therefore pray Your Honours to rule and hold that Appellee’s departure from the requirements of law and Appellee’s own regulation and custom (practiced for the 2005 elections and the 2011 elections) is sufficient to cause a re-run of the October 10, 2017 elections; and if not a re-run, is sufficient to require that the voter registration roll (the FRR) be published as required by law, regulation and custom at each voting precinct or polling place before a run-off election is conducted.

3.9.      Appellants/Intervenors adduced evidence, conceded by Appellee, that Appellee did not publish the Final Registration Roll (FRR) as required by the Elections Law and Appellee’s own Voter Registration Regulations of August 12, 2016, Arts. 22.1 & 22.2.All that Appellee did insofar as the FRR is concerned is to place the FRR in electronic form on flash drives and gave these flash drives to seven (7) political parties at a meeting Appellee held with political parties on September 23, 2017. And this is what Appellee considered to be publication of the FRR when Appellee’s own Voter Registration Regulations, Art. 22.4 provides that the only purpose for making of electronic copies of the FRR is for the FRR to be available at Appellee’s headquarters for the sole use by electoral stakeholders upon request. In his Final Ruling, the CDHO did not pass on this material issue and the effect of this violation of the Elections Law and Appellee’s own regulations by Appellee on the October 10, 2017 elections. And Appellants/Intervenors excepted and argued the issue before Appellee’s Board of Commissioners. Appellants/Intervenors therefore pray Your Honours to rule and hold that Appellee’s departure from the requirements of law and Appellee’s own regulation and custom (practiced for the 2005 elections and the 2011 elections) is sufficient to cause a re-run of the October 10, 2017 elections; and if not a re-run, is sufficient to require that the voter registration roll (the FRR) be published as required by law, regulation and custom at each voting precinct or polling place before a run-off election is conducted.

            3.10.    Appellants/Intervenors produced witnesses before the CHDO (in persons of Appellee’s former Chairman, Cllr. Francis Johnson-Allison, and its former Commissioner for seven (7) years, Hon. David Menyongai), that for the 2005 and 2011 elections the voter registration roll (the FRR) for each polling place was published where the voters registered. This evidence was not rebutted or contradicted before the CDHO and therefore deemed admitted pursuant to Davis v. Davis, 19 LLR 150. Yet the CDHO did not pass on the impact of this evidence on the fairness, freeness and transparency of the October 10, 2017 elections. Appellants/Intervenors excepted and submitted this exception for review by Appellee’s Board of Commissioners, who also ignored the impact this evidence had on the fairness, freeness and transparency of the October 10, 2017 elections. Appellants/Intervenors therefore pray Your Honours to rule and hold that Appellee’s departure from the requirements of law and Appellee’s own regulation and custom (practiced for the 2005 elections and the 2011 elections) is sufficient to cause a re-run of the October 10, 2017 elections; and if not a re-run, is sufficient to require that the voter registration roll (the FRR) be published as required by law, regulation and custom at each voting precinct or polling place before a run-off election is conducted.

            3.11.    Appellants/Intervenors say that Section 3.19 of the Elections Law and Appellee’s own regulation (Voter Registration Regulations of August 12, 2016, Art. 22.5) provide that the FRR shall not be altered within the thirty days immediately before an election (including Election Day – October 10, 2017). This means that Appellee should have published the FRR long before that thirty-day period commenced; and even with the intervention of international election observers, published in newspapers of general circulation advising that the FRR be published no later than September 10, 2017 (30 days before Election Day on October 10, 2017), Appellee still did not publish the FRR. Instead Appellee hand-delivered the FRR on a flash drive (not published for inspection by the public) to seven (7) political parties barely three (3) weeks before the October 10, 2017 elections. In his Final Ruling, the CDHO did not cover the effect of this undue delay in publishing the FRR and the manner in which the FRR was delivered to political parties on flash drives as substitute for publication for inspection by the public. And so Appellants/Intervenors excepted and argued this issue before Appellee’s Board of Commissioners; but Appellee’s Board of Commissioners did not pass on this issue and the effect if had on the fairness, freeness and transparency of the October 10, 2017 elections. And for this reason, Appellants/Intervenors excepted so that the Honorable Supreme Court may review this issue and Appellants/Intervenors pray Your Honours to rule and hold that Appellee’s departure from the requirements of law and Appellee’s own regulation and custom (practiced for the 2005 elections and the 2011 elections) is sufficient to cause a re-run of the October 10, 2017 elections; and if not a re-run, is sufficient to require that the voter registration roll (the FRR) be published as required by law, regulation and custom at each voting precinct or polling place at least thirty (30) days before a run-off election is conducted so as to be in compliance with the length of time anticipated by the Elections Law and Appellee’s own regulations for the FRR to remain unaltered before any election is conducted.

3.12.    Appellants/Intervenors say that the Elections Law, Section 3.11(2)(a) requires that at least two (2) days before Election Day (October 10, 2017) the portion of the FRR for each registration center should have been available at each registration center for inspection and comparison with Appellee’s master FRR. Appellants/Intervenors produced evidence, which was not rebutted and therefore deemed admitted pursuant to Davis v. Davis, 19 LLR 150, which proved that Appellee did not comply with this requirement of law. In his Final Ruling, the CDHO did not pass on this material issue and the effect of this non-compliance on the October 10, 2017 elections and Appellants/Intervenors excepted. Even though this issue was raised by Appellants/Intervenors when the hearing was conducted by Appellee’s Board of Commissioners, Appellee’s Board of Commissioners also failed and neglected to pass on the issue and the impact Appellee’s failure to comply with this provision of the Elections Law had on the fairness, freeness and transparency of the October 10, 2017 elections. So Appellants/Intervenors pray Your Honours to rule and hold that Appellee’s departure from the requirements of law and Appellee’s own regulation and custom (practiced for the 2005 elections and the 2011 elections) is sufficient to cause a re-run of the October 10, 2017 elections; and if not a re-run, is sufficient to require that the voter registration roll (the FRR) be published as required by law, regulation and custom at each voting precinct or polling place before a run-off election is conducted.

3.13.    Appellants/Intervenors submit that Section 3.19 of the Elections Law and Appellee’s own regulation (Voter Registration Regulations of August 12, 2016, Art. 22.5) provide that no voter registration roll, especially the FRR, may be altered within the thirty (30) days period immediately prior to an election. This means that Appellee should have published the FRR long before that thirty-day period commenced; but Appellee hand-delivered the FRR on flash drives (not published for inspection by the public) to seven (7) political parties barely three (3) weeks before the October 10, 2017 elections. In his Final Ruling, the CDHO did cover the effect this undue delay in publishing the FRR and the manner in which the FRR was delivered to political parties on flash drives as substitute for publication for inspection by the public. And so Appellants/Intervenors excepted and argued this issue before Appellee’s Board of Commissioners; but Appellee’s Board of Commissioners did not pass on this issue and the effect this evidence had on the fairness, freeness and transparency of the October 10, 2017 elections. Appellants/Intervenors pray Your Honours to rule and hold that Appellee’s departure from the requirements of law and Appellee’s own regulation and custom (practiced for the 2005 elections and the 2011 elections) is sufficient to cause a re-run of the October 10, 2017 elections; and if not a re-run, is sufficient to require that the voter registration roll (the FRR) be published as required by law, regulation and custom at each voting precinct or polling place at least thirty (30) days before a run-off election is conducted so as to be in compliance with the length of time anticipated by the Elections Law and Appellee’s own regulations for the FRR to remain unaltered before an election is conducted.

3.14.    Appellants/Intervenors produced evidence that Appellee altered the FRR when Appellee unilaterally allowed persons with voter registration cards, legally or illegally obtained, but whose names were not on the FRR at the polling places where they appeared to vote, and allowed them to vote by merely having their names placed on a piece of paper. The effect of this violation of law and Appellee’s own regulation on the October 10, 2017 elections was never passed upon by the CDHO in his Final Ruling. However, to prove this irregularity more substantially Appellants/Intervenors applied for writ of subpoena duces tecum for all the addenda created by Appellee at each voting precinct throughout the country but the CDHO denied the application based on objections interposed by Appellee’s counsel. Appellants excepted but more than that Appellants/Intervenors say that had these addenda been brought to the hearing, they would have shown that thousands and thousands of people with voter registration cards, legally or illegally obtained but not on the FRR, were allowed to vote on October 10, 2017 contrary to the law that the FRR shall not be altered at least thirty (30) days before an election, including Election Day, unless ordered by the Supreme Court for reason of manifest error.

3.15.    Appellants/Intervenors say that the CDHO’s denial of the subpoena duces tecum was submitted to Appellee’s Board of Commissioners and Appellee’s Board of Commissioners confirmed the denial of this evidence that was essential to proving gross irregularities during the course of the October 10, 2017 elections. And Appellants/Intervenors excepted; but most important is that it is obvious that the only reason why the CDHO and Appellee’s Board of Commissioners denied the application for the subpoena duces tecum is so that it would be impossible for Appellants/Intervenors to prove how massive and the extent to which these irregularities impacted the fairness, freeness and transparency of the October 10, 2017 elections. So Appellants/Intervenors pray Your Honours to rule and hold that the CDHO’s refusal to issue the subpoena decum tecum and Appellee’s affirmation of that decision was a gross abuse of power intended to stop the revelation of gross irregularities during the course of the October 10, 2017 elections and that for any future election, whether it is a re-run of the October 10, 2017 elections or a run-off election, such gross abuse of power by the CDHO and Appellee’s Board of Commissioners should not be permitted or allowed.

            3.16.    In ruling on the exception made by Appellants/Intervenors to the CHDO’s denial of their application for a subpoena duces tecum for the addenda created by presiding officers and on which legally and illegally registered voters were allowed to have their names entered and allowed to vote when their names could not be found on the FRR, Appellee’s Board of Commissioners erroneously ruled that addenda was allowed for security officers and NEC polling staff, who may have registered at a registration center different from where he/she is assigned, to allow them to vote for the presidency only and so the addenda created by the presiding officers on Election Day (October 10, 2017) was legally done. Well, Appellants/Intervenors were not referring to security officers and polling staff; Appellants/Intervenors were referring to normal and regular voters who did not have their names on the FRR and the only reason why they appeared at the polling places was to vote. This means that the Appellee’s Board of Commissioners deliberately, intentionally and conveniently twisted around Appellants/Intervenors’ complaint against the illegal alteration of the FRR through the creation of these addenda by saying that the addenda were created to accommodate security and polling staff who registered at registration centers different from where they were assigned on October 10, 2017. Appellee’s Board of Commissioners conceded that the word “alter” means to add or to subtract; and yet Appellee’s Board of Commissioners ruled that the creation of these addenda did not constitute alteration of the FRR.  And so Appellants/Intervenors pray Your Honours to declare that the creation of these addenda constituted an alteration of the FRR in violation of the Elections Law and Appellee’s own regulation and to order that such addenda should not be created and used for a re-run election or run-off election, whichever is ordered by Your Honours, upon the disposition of this Appeal.    

3.17.    Appellants/Intervenors adduced evidence at the hearing before the CDHO to the effect that Appellee discriminated between those with voter registration cards whose names were not on the FRR at the polling places where they registered to vote. That is, thousands of voters with voter registration cards, legally or illegally obtained, were allowed to vote by having their names placed on a paper (addenda to the FRR) contrary to law and thousands and thousands of others voters were flatly denied the right to vote because their names were not on the FRR. Appellants/Intervenors adduced both oral testimonies and video recording (introduced into evidence) in support of this discrimination and yet in his Final Ruling, the CDHO did not pass on this material evidence which is a blatant violation of the Elections Law; the CDHO also failed to pass on its effect on the October 10, 2017 elections. Not only did Appellee’s Board of Commissioners also fail to pass on this issue but it also failed to even acknowledge the existence of the video recording, which showed hundreds of registered voters at the Jacob Town Community, Paynesville City, Montserrado County, who were refused to exercise their right to vote even though they had voter registration cards in their possession. Appellants/Intervenors say that this egregious denial of people’s constitutional right to vote is good and sufficient reason for a re-run of the elections; and if not a re-run, for administrative and logistical remedies to be employed before a run-off election is held so that such egregious denial of people’s right to vote will not recur.

            3.18.    Appellants/Intervenors say that further to the exceptions narrated in Paragraphs 3.16 and 3.17 above, Appellee’s Board of Commissioners totally ignored the unrebutted and un-contradicted oral testimonies, the video recording and 182 of the hundreds of unused ballots presented to the CDHO and the effect this evidence had on the fairness, freeness and transparency of the October 10, 2017 elections. For this reason, Appellants/Intervenors excepted to the CDHO’s Final Ruling; but worse than that, Appellee’s Board of Commissioner never addressed the issue or the evidence in their Final Ruling. Denial of the constitutional right of a citizen holding a voter registration card clearly impacted the fairness, freeness and transparency of the October 10, 2017 elections; and Appellants/Intervenors pray Your Honours to rule, upon the disposition of this appeal, that Appellee employs the necessary logistical support and manpower to ensure that no registered voter shall be discriminated against in the exercise of his/her right to vote.

3.19.    Appellants/Intervenors adduced evidence that contrary to law Appellee adopted a regulation (Regulations on Polling and Counting of May 6, 2016, Art. 3.2), which provides that if the name of a person with a voter registration card could not be found on the FRR where he appears to vote, the presiding officer shall permit the person to vote if the person’s voter registration card is verified through the SMS verification system managed by Appellee. In his Final Ruling, the CDHO did not pass on the legal effectiveness of this regulation, as it is contrary to law, and how this SMS verification system impacted the October 10, 2017 elections. Appellants/Intervenors also introduced evidence that the SMS verification system managed by and under the exclusive control of Appellee constituted the creation of a second FRR, contrary to law; and further that the SMS verification system was grossly flawed and ineffective. The law, hoary with age, is that as an administrative agency, any regulations promulgated by Appellee, which is inconsistent with law, is null and void. Bowen v. Strong, 2 LLR 415. Appellee’s Board of Commissioners, just like the CDHO, refused, failed and neglected to pass on this issue though it was argued before them.

3.20.    Appellants/Intervenors adduced evidence (oral testimony of an expert and demonstrative evidence) that the SMS verification system managed by Appellee constituted the creation of a second FRR, separate and different from the FRR given to the seven (7) political parties in September 2017 on flash drives. This evidence was verified by the fact that a comparison by an expert computer engineer and data management specialist of the FRR given to the seven (7) political parties in September 2017 with the FRR brought to the hearing in November 2017 by Appellee under subpoena showed that that the FRR which Appellee brought to the hearing under subpoena had thousands and thousands more registrants than the FRR given to political parties in September 2017. In his Final Ruling, the CDHO never passed on this material issue.

3.21.    Appellants/Intervenors adduced evidence, unrebutted and uncontroverted, that the SMS verification system managed by Appellee was flawed and constituted a recipe for frauds. Additional demonstrative evidence was adduced by an expert computer engineer and data management specialist that when a voter registration number is inputted into Appellee’s SMS verification system, two or more names appear when only one name should have appeared for that registration number. In his Final Ruling, the CDHO never passed on any of the material evidence narrated in Paragraphs 3.19 and 3.20 above and how it impacted the October 10. 2017 elections. As for Appellee’s Board of Commissioners, they relied on the self-serving testimony of Appellee’s Executive Director that when making the analysis of the two flash drives (the one given to Unity Party (one of Appellants/Intervenors) and six (6) other political parties and testified to at the hearing before the CDHO, and the one brought to the hearing by Appellee’s Executive Director pursuant to the subpoena duces tecum, the expert corrupted Unity Party’s flash drive and caused it to lose some data. Appellants/Intervenors say that this testimony is self-serving because it is the same Executive Director who planned and developed the SMS verification system and advised Appellee to use it for the October 10, 2017 elections, Appellants/Intervenors also submit that instead of Appellee presenting its Executive Director to prove that the flash drive presented by Appellants/Intervenors at the hearing did not contain the same information as the flash drive that was given to seven (7) political parties, Appellee should have brought from one of the other political parties the flash drives that was given out to them on September 23, 2017 and compare its contents with the contents of the flash drive that was presented by Appellants/Intervenors at the hearing. Appellee’s Executive Director’s testimony therefore had no probative value as the better evidence would have been the flash drive from one of the other six political parties to show that Appellants/Intervenors’ flash drive had less information on the FRR than what was issued on September 23, 2017. Appellants/Intervenors say that the ruling of Appellee’s Board of Commissioners on this issue was therefore a reversible error.

 3.22.   Appellants/Intervenors adduced evidence, unrebutted and uncontroverted, that for the 2005 and 2011 elections, Appellee did not use an SMS verification system to verify whether a person holding a voter registration card but whose name was not on the FRR could be allowed to vote. The evidence adduced also proved that the use of Appellee’s SMS verification system was a recipe for frauds. In his Final Ruling, the CDHO did not pass on this material evidence, and except for saying that Appellee’s Executive Director testified that the SMS verification system was flawless, which testimony was self-serving as it is the same Executive Director who developed said SMS verification system and advised Appellee to use it for the October 10, 2017 elections, Appellee’s Board of Commissioners ruled that since Appellants/Intervenors did not rebut the self-serving testimony of Appellee’s Executive Director, same was deemed an admission by Appellants/Intervenors, notwithstanding the positive evidence presented by Appellants/Intervenors on this issue. Appellants/Intervenors submit that the ruling of Appellee’s Board of Commissioner on this issue is clearly erroneous and should therefore be overruled by Your Honors and the evidence submitted by Appellants/Intervenors and their experts be considered to have a greater weight. In view of this, Appellants/Intervenors also pray Your Honours to declare that Appellee should not use its SMS verification system for any future election.

3.23.    Appellants/Intervenors adduced evidence to support their submission that the placement of the FRR on a flash drive, as substitute for printing copies of the FRR and placing them at the offices of election magistrates and voter registration centers, in violation of Appellee’s own regulation (Voter Registration Regulations of May 16, 2016, Arts. 22.1, 22.2 & 22.3) denied those members of the Liberian public who registered to vote the right to determine whether their names were on the FRR and also to determine whether a name on the FRR should not have been there because such person was ineligible to vote or did not come from that community. The CDHO did not pass on this evidence and the effect it had on the October 10, 2017 elections. Appellants/Intervenors excepted and argued the issue before Appellee’s Board of Commissioners; but like the CDHO, Appellee’s Board of Commissioners did not rule on this issue. Appellants/Intervenors therefore pray Your Honours to rule that the placement of the FRR on flash drives only as the substitute for printing of copies and placement thereof at offices of election magistrates and voter registration centers and precincts is irregular and illegal and should not be done for any future election (re-run or run-off of the October 10, 2017 elections). 

            3.24.    For purposes of emphasis Appellants/Intervenors reiterates that they adduced evidence that after voter registration, which covered a period of several months, was completed, pursuant to Appellee’s own Voter Registration Regulations of August 12, 2016, Arts. 9.1 & 9.2, Appellee printed a Provisional Registration Roll (PRR) separately for each registration center, exhibited it for public inspection and announced that 1.1 million persons had registered to vote. However when hundreds of registrants all over the country protested on the first day of the exhibition that their names could not be found on the PRR, Appellee closed down the exhibition on the second day when the exhibition should have been for a full week. The next time that Appellee informed the public about voter registration is a week after the abrupt closure of the exhibition and this time Appellee announced that 2.2 million persons had registered to vote. This evidence was never denied or rebutted by Appellee and therefore pursuant to Davis v. Davis, 19 LLR 150 it is deemed admitted by Appellee. This information being statistically and practically impossible leads any reasonable person to the belief that the number of registered voters had been inflated to allow for fraudulent voting and ballot stuffing. The CDHO did not comment on this material evidence in his Final Ruling; Appellee’s Board of Commissioners also did not comment on this evidence and the effect it had on the fairness, freeness and transparency of the October 10, 2017 elections. For the improbability of 2.2 registered voters (an additional 1 million registrations within one week), Appellants/Intervenors say that the FRR needs to be sanitized to removed illegally registered voters, especially those whose names appear more than once, hold several voter registration cards, and voted multiple times.

3.25.    Also for the sake of emphasis, Appellants/Intervenors reiterate that they adduced evidence that after the protests from hundreds of registrants that their names were not on the PRR, Appellee’s Chairman, issued a Press Statement that anyone with a voter registration card, whether obtained legally or illegally, would be allowed to vote.  In another Press Statement, this time issued by one of Appellee’s Commissioners who had far longer tenure and experience than Appellee’s Chairman, Hon. Jonathan Weedor, Hon. Weedor said that allowing persons with voter registration cards, whose name are not on the FRR to vote, was a recipe for frauds during the October 10, 2017 elections. But the CDHO completely ignored this evidence and did not pass on Appellants/Intervenors’ submission that the SMS verification system, which was intended to be used to validate persons with voter registration cards, obtained legally or illegally but who were not on the FRR, but which SMS verification system had never been used before by Appellee, undermined the integrity and credibility of the October 10, 2017 elections, constituted a recipe for fraud, and was useless to the majority of the voters who are illiterate, did not have cell phones to be able to use it, and even if some of them had cell phone, did not have telephone connectivity in their areas to use it. The CDHO did not address these material issues in his Final Ruling and Appellee’s Board of Commissioners also did not address these material issues. Appellants/Intervenors therefore pray Your Honours to order the disuse of flash drives as substitute for publication of copies of the FRR at offices of election magistrates and at registration centers and polling places. Appellants/Intervenors also pray Your Honours to order the disuse of the SMS verification system which is under the exclusive control of Appellee, not accessible to candidates and their political parties in violation of law.

3.26.    Appellants/Intervenors submit that Appellee’s non-compliance with the Constitution, Elections Law and its own regulations and custom from the 2005 and 2011 elections constitute the irregularities committed by Appellee before and during the course of the October 10, 2017 elections. These irregularities are substantial enough to warrant a re-run of the elections; and if a re-run were not ordered by Appellee but that a run-off election should take place as announced by Appellee, then a system and process should be introduced to ensure that these irregularities are corrected and remedied. For example, the FRR should be sanitized and all persons whose names appear thereon more than once should be removed from the FRR and not allowed to vote because their names could have appeared there only because they fraudulently obtained more than one voter registration card. All persons who have more than one voter registration card should not be allowed to vote in the run-off elections. And finally, the sanitization of the FRR should be done by a data management expert, who has no relationship to Liberia’s politics and should meet the approval of the contesting parties for the run-off elections or a run-off election, whichever is ordered by Your Honours.

 

 

PROOF OF FRAUD COMMITTED AND/OR ALLOWED BY APPELLEE
BEFORE AND DURING THE COURSE OF THE OCTOBER 10, 2011 ELECTIONS

3.27.    Did the evidence adduced by Appellants/Intervenors at the hearing before the CDHO and the arguments before the Appellee’s Board of Commissioners prove that frauds had been committed before and during the course of the October 10, 2017 elections, which are sufficient to warrant the annulment of those elections or grave enough to require specific remedial actions before a run-off election, whichever is order by the Supreme Court?

3.28.    Appellants/Intervenors say that the evidence adduced by them at the trial proved actual fraud even though the CDHO ruled that actual fraud was not proved. More than that, Appellants/Intervenors submit that given the relationship between them and Appellee, proof of constructive/legal fraud, not necessarily actual fraud, is what is required for this election dispute.

            3.29.    Appellants say that the CDHO’s Final Ruling, unqualifiedly and unreservedly confirmed by Appellee’s Board of Commissioners, is founded on the legal principle of “actual fraud” and the CDHO and Appellee’s Board of Commissioners ignored the legal principle of “constructive fraud” or “legal fraud”; the type of evidence required for both classifications of fraud is different (37 Am Jur 2d, Fraud and Deceit, Sections 3 &4). Now, given the relationship between Appellants/Intervenors and Appellee in the October 10, 2017 elections, Appellee’s violations of the Constitution and Elections Law and its own regulations, to the disadvantage of Appellants, constitute “constructive fraud”, otherwise called “legal fraud”. And even though Appellants/Intervenors proved actual fraud, it was sufficient for Appellants/Appellants to show that Appellee violated laws and its own regulations much to the prejudice of Appellants/Intervenors and constructive/legal fraud is thereby established. For applying only the principle of actual fraud to the facts and circumstances of Appellants’ complaint, Appellants/Intervenors say that the CDHO and Appellee’s Board of Commissioners committed a reversible error. Even with respect to the evidence of actual fraud, Appellants/Intervenors submit that they proved actual fraud.

            3.30.    Appellants/Intervenors say that the violations of the Constitution, Elections Law and Appellee’s own regulations proved legal/constructive fraud because each of those violations impacted the October 10, 2017 elections, affected the fairness, freeness and transparency of the October 10, 2017 elections and operated to the prejudice of Appellants/Intervenors. For this proof of legal/constructive fraud, Appellants/Intervenors say that the October 10, 2017 elections is a fit subject for annulment and an order of a rerun of those elections. And even if the Supreme Court were to hold that the evidence does not rise to the level to cause annulment of the October 10, 2017 elections, in confirming the ruling of Appellee’s Board of Commissioners that a run-off election should be held, the Supreme Court should qualify such order of a run-off election by ordering that certain corrective and remedial steps should be taken by Appellee to ensure that no possibility of actual fraud would recur or be allowed to recur.

3.31.    Appellants/Intervenors say that constructive/legal fraud requires neither actual dishonesty nor intent to deceive, being a breach of legal or equitable duty, which irrespective of the moral guilt of the wrongdoer, the law declares fraudulent because of its tendency to deceive others, to injure public interests, or to violate public or private confidence. 37 Am Jur 2d, Fraud and Deceit, Section 4. At the minimum, Appellants/Intervenors say that Appellee’s violations of the Constitution and Elections Law and its own regulations injure the public interest, have the tendency to deceive the public and violated the public confidence in Appellee. Appellants/Intervenors also say that had this principle of law on constructive/legal fraud been applied by the CDHO and Appellee’s Board of Commissioners to the evidence adduced by Appellants/Intervenors, the CDHO would have properly ruled that massive, pervasive frauds were committed throughout the October 10, 2017 elections, which undermined the credibility and integrity of the entire elections; and Appellee’s Board of Commissioners would have affirmed that ruling.

3.32.    Appellants/Intervenors submit that given the relationship between them and Appellee during the October 10, 2017 elections, Appellants/Intervenors are required to prove constructive/legal fraud, even though they also proved actual fraud in addition. The burden of proof for actual fraud is different from the burden of proof for constructive fraud. What the CDHO did in his Final Ruling, was to assume that the burden of proof for actual fraud, which was miserably and erroneously applied, is the same as the same burden of proof for constructive/legal fraud and the CHDO based his Final Ruling on that assumption. Unfortunately, Appellee’s Board of Commissioners did the same thing – erroneously assumed that Appellants/Intervenors should prove only actual fraud or no frauds had been committed.

3.33.    Appellants/Intervenors say that Liberian law is that one of the underlying elements of fraud is the conduct of a person that operates prejudicially on the right of others and was so intended. 37 Am Jur 2d, Fraud and Deceit, Section 1. Appellee’s violations of the Constitution, Elections Law and its own regulations for the conduct of the October 10, 2017 elections operated prejudicially on Appellants/Intervenors’ rights and so the CDHO should have ruled, and Appellee’s Board of Commissioners should have affirmed, that frauds had been committed during the course of the October 10, 2017 elections. Instead the CDHO and Appellee’s Board of Commissioners ruled that no frauds or irregularities were committed or occurred.

3.34.    Appellants/Intervenors say that the CDHO erred, affirmed by Appellee’s Board of Commissioners, when he implied in his Final Ruling that the frauds complained of by Appellants/Intervenors must be proved by direct and positive evidence; which means that Appellants/Intervenors were required to show the individuals who committed the frauds and how the frauds affected the results of the October 10, 2017 elections. Appellee’s Board of Commissioners went as far as concluding that unless the frauds complained off affected the results of the October 10, 2017 elections to the extent that the results would have changed had it not been for such frauds, which Appellee’s Board of Commissioners held was not the case with the October 10, 2017 elections, Appellee’s Board of Commissioner held that the results of the October 10, 2017 elections, as announced by Appellee on October 19, 2917, were valid, legitimate and should remain standing. That was an erroneous ruling.

3.35.    Liberian law is that fraud vitiates all transactions; fraud destroys the validity of everything into which it enters; fraud vitiates the most solemn of things. 37 Am Jur Fraud and Deceit Sec. 19. Liberian law also provides that fraud may be inferred from circumstances. Kontar v. Mouwaffak, 17 LLR 446; Harmon v. Republic, 24 LLR 176. Liberian law further provides that fraud may be established not only directly but by inconclusive circumstances which by their weight and number jointly considered may constitute sufficient proof. Sirleaf v. Azar and Saba, 21 LLR 221. Had the CDHO applied these principles of Liberian law to the evidence adduced by Appellants/Intervenors at the hearing, the CDHO would have properly concluded that the October 10, 2017 elections was fraught with massive frauds; but the CDHO did not.  And Appellee’s Board of Commissioners unqualifiedly and unreservedly affirmed his erroneous Final Ruling.

            3.36.    As to proof of actual fraud, Appellants/Intervenors adduced evidence that hundreds and hundreds of citizens had two or more voter registration cards and that they voted multiple times in violation of Appellee’s own Voter Registration Regulations of August 12, 2016, Arts. 21.1, 21.2 &24.1(c). One of such persons is a Sokolo Raymond, who had three (3) voter registration cards nos. 723183727 (in handwriting), 723304577 (printed) and 723183727 (printed). In his Final Ruling, the CDHO did not pass on this material evidence and the effect it had on the October 10, 2017 elections even though pursuant to the Executive Law (Administrative Procedure Act), Section 82.5(1), that specie of evidence relevant to proving fraud should have been admitted and the probative value determined. And election fraud is illegal conduct committed in an election, usually in the form of fraudulent voting. Examples include voting twice… Black’s Law Dictionary, Eight Edition, page 558. Based on these provisions of law and the facts narrated, Appellants/Intervenors excepted to the CDHO’s Final Ruling and argued the evidence before Appellee’s Board of Commissioners; but again, Appellee’s Board of Commissioners never passed on this issue and the effect the evidence had on the fairness, freeness and transparency of the October 10, 2017 elections. Appellants/Intervenors say that this specie of evidence would have shown the level of fraud and irregularity that Appellee allowed at the October 10, 2017 elections, which warrant a re-run of those elections. And even if the Supreme Court were to order a run-off election, Appellants/Intervenors pray that the FRR would be so sanitized as to completely remove the names of all persons who hold several voter registration cards and who voted multiple times.

            3.37     Also as to proof of actual fraud, Appellants/Intervenors adduced evidence that ballots on which voters had already voted were found buried in Glay Town, Grand Gedeh County and video recording of the discovery went viral on the internet. The oral testimonies of two of the persons who dug out the ballots were never rebutted or discredited; photographs of the buried ballots were exhibited; video recording of the buried ballots during the time that they were pulled out of the ground and thereafter was demonstrated. Clearly, this was an election fraud; and yet, in his Final Ruling, the CDHO never passed on this material evidence and the impact it had on the October 10, 2017 elections. Appellants/Intervenors excepted and argued the issue before Appellee’s Board of Commissioners.

            3.38.    That further to Paragraph 3.37 above, Appellants/Intervenors say that Appellee’s Board of Commissioners relied on the self-serving statement of Appellee’s Executive Director that the buried ballots were “Know-Your-Candidates” postal, not ballots; Appellee’s Board of Commissioners ignored the unrebutted testimony of the two witnesses that these were used ballots, which means they had been used to vote. Appellee’s Board of Commissioners also ignored the photocopies of the photographs and the video recording which showed that these buried ballots had the red stripes on the reverse side for presidential ballots and the green stripes on the reverse side for representatives ballots, while the “Know-Your-Candidate” postal had only plain white reverse side. This cogent evidence was completely ignored by Appellee’s Board of Commissioners in favor of the self-serving oral testimony of Appellee’s Executive Director.

            3.39.    Further as to proof of actual fraud, Appellants/Intervenors adduced evidence at the hearing to the effect that the FRR is the sine qua non for free, fair and transparent elections and that the FRR was materially flawed, intentionally or unintentionally, and that no free, fair and transparent elections could have been held on October 10, 2017 with such materially flawed FRR. To corroborate this evidence, Appellants applied for subpoenas duces tecum and subpoenas ad testificadum for the presiding officer worksheets and the addenda created all over the country; and even though the CDHO has the power to subpoena witnesses and records pursuant to Article 2.9(w) of the Elections Laws,  Section 82.4(a) of the Executive Law (the Administrative Procedure Act) and Appellee’s own regulations (Elections Hearing Procedures of May 6, 2016, Art. 8.2), the CDHO denied the application for these subpoenas, much to Appellants’ prejudice. And to which erroneous ruling, Appellants excepted but Appellee’s Board of Commissioners confirmed the CDHO’s ruling. And Appellants/Intervenors excepted.

            3.40.    That further to Paragraph 3.39 above, had the presiding officer worksheets and the addenda from all over the country been produced as in keeping with the subpoena duces tecum requested for, proof of how pervasive and fraught that the October 10, 2017 elections was marred by gross irregularities and massive frauds would have been evidently established. The CDHO’s denial of the subpoena, affirmed by Appellee’s Board of Commissioners, was merely intended to ensure that this proof, in the possession of Appellee, would not be brought to light. And so Appellants/Intervenors excepted.

            3.41.    And also further to proof of actual fraud, Appellants/Intervenors introduced evidence that the ballots for the October 10, 2017 elections did not carry serial numbers; however, serial numbers were placed on the stubs of the ballots. When asked the purpose for restricting the serial numbers to the ballot stubs, Appellee’s Executive Director falsely testified that to do that would have exposed to the presiding officer how each person voted. This testimony was debunked by two witnesses for Appellants, in persons of Cllr. Francis Johnson-Allison and Hon. David Menyongai, who formerly served on the National Elections Commission; but this evidence which conclusively contradicted Appellee’s Executive Officer, was never passed upon by the CDHO in his Final Ruling. And so Appellants excepted and argued the issue before Appellee’s Board of Commissioners; but Appellee’s Board of Commissioners merely ignored this evidence in their Final Ruling.

            3.42.    Appellants/Intervenors say that on additional examination of Appellee’s Executive Director on whether the serial numbers were intended for security purposes - to check on which ballots and how many ballots were used at a polling place for voting after voting had been completed - he testified that the serial number was for only administrative purposes. But when asked as to what was the meaning of “administrative purposes”, the question was objected to and the CDHO sustained the objection. And to that ruling, Appellants excepted and argued the issue before Appellee’s Board of Commissioners; but again this evidence and the CDHO’s ruling against its admission was ignored by Appellee’s Board of Commissioners in their Final Ruling.

            3.43.    Also as to the absence of serial numbers on the ballots while serial numbers were on their stubs, Appellee’s Executive Director falsely testified that serial numbers had never been placed on ballots for any election in Liberia and that was the international best practice. On the day of oral argument before the CDHO (Monday, Nov. 20, 2017), Appellants/Intervenors submitted to the CDHO copy of a ballot from the 1997 elections (newly discovered evidence), which had the serial number on it and the CDHO was asked, that the hearing being administrative in nature (fact-finding and inquisitorial) and not judicial, to take administrative notice that, contrary to Appellee’s Executive Director that serial numbers had never been placed on ballots for voting in Liberia, ballots for the 1997 elections had serial numbers on them. The CDHO ignored this request and refused to take administrative notice of the evidence which conclusively contradicted Appellee’s Executive Director and the CDHO never passed on this evidence and its effect on the October 10, 2017 elections. The refusal of the CDHO to take administrative notice of the historical fact that ballots for the 1997 elections had serial numbers on the ballot stubs which correspond to serial number on the ballots themselves and to acknowledge and accept into evidence one of such ballots from the 1997 elections during the oral argument was an egregious error, as Appellee’s own regulation (Elections Hearing Procedures of May 6, 2016, Art. 7.3) provide that legal technicalities obtaining in courts of law shall not strictly apply to its hearings. And more than that, by law, the evidence relating to the 1997 election and a copy of a ballot for that election would have ordinarily been admitted into evidence even at the judicial review of this matter. Executive Law (Administrative Procedure Act), sec. 82.8(5). Since the only judicial review of a decision by Appellee’s Board of Commissioner is a review by this Honorable Supreme Court, Appellants/Intervenors pray, unlike it is provided for ordinary proceeding before this Honorable Court that it shall not accept original evidence, this Honorable Court should accept the evidence of the 1997 election and copy of a ballot used therein consistent with this provision regarding judicial review of contested matters before an administrative agency such as Appellee is. For this error committed by the CDHO, Appellants excepted and argued the matter before Appellee’s Board of Commissioners.

            3.44.    That in passing on the evidence and exceptions narrated in Paragraphs 3.41, 3.42 and 3.44 above, Appellee’s Board of Commissioners relied on Section 4.7 of the Elections Law, which provides that ballots may be in the form as prescribed by Appellee and that ballot papers shall include the names of candidates in alphabetical order of surname, the name of the party and the selected emblems and that different color ballots may be provided for elections to different elective offices. Appellee’s Board of Commissioners did not say that this law meant that Appellee could depart from international best practice and standards, which require that the ballot stubs and ballots should carry corresponding serial numbers. 26 Am Jur 2d Elections, Section 223. The Liberian law, which Appellee’s Board of Commissioners relied on, was the same law when the 1997 election was conducted and Appellants/Intervenors submit that law did not intend that Appellee depart from the practice for the 1997 election, which provided for corresponding serial number on both the ballot paper and stubs. And for this reason, Appellants/Intervenors excepted.

            3.45.    Appellants/Intervenors submit and pray Your Honours to rule that serial number on each ballot stub, which corresponds to serial number on the ballot itself, is for security purpose – to ensure that only ballots with the specific serial numbers assigned to a polling place would be found in the ballot boxes assigned to those polling places. That is why the presiding officer worksheets have blank spaces thereon to show the starting and ending serial numbers for ballots assigned to each polling place. Had the CDHO granted the subpoena for the presiding officer worksheets, the evidence would have revealed that none of these worksheets recorded the serial numbers for the ballots and that this made it possible for ballot boxes to be stuffed with excess ballots, printed by Appellee far more than what was needed for the October 10, 2017 elections. And for these reasons, Appellants/Intervenors excepted.

3.46.    Also as to proof of actual frauds, even though pursuant to Appellee’s own regulations (Voter Registration Regulations of August 12, 2016, Art. 25.1(a), it is an election offense for a person without authority to print or distribute voter registration cards and possess other election materials, the CDHO denied Appellants/Intervenors’ request for subpoena and failed  to exercise his power pursuant to Appellee’s own regulations (Elections Hearing Regulations of May 6, 2016, Art. 8.2) to subpoena the records of the investigation of Mr. Amos Seibu of President Sirleaf’s offices who had been found with machines for production of voter registration cards and found with other election materials in his possession. This evidence would have been used by Appellants/Intervenors to prove fraud. And so Appellants/Intervenors excepted and submitted the issue to Appellee’s Board of Commissioners; but Appellee’s Board of Commissioners first affirmed the denial of the subpoena and also did not pass on the effect of this evidence on the fairness, freeness and transparency of the October 10, 2017 elections. And so Appellants /Intervenors excepted.

            3.46.    Appellants/Intervenors say that the CDHO refused to issue subpoena pursuant to Section 2.9(w) of the Elections Law and Appellee’s own regulations (Elections Hearing Regulations of May 6, 2016, Art. 8.2) for the records of the investigation of Appellee’s presiding officer for Electoral District No. 3, Nimba County, who was being investigated by Appellee for possession of ballots which were marked before Election Day on October 10, 2017 - an election offense. The evidence from this investigation would have substantiated Appellants/Intervenors’ claim that massive frauds were committed during the course of the October 10, 2017 elections. And to which, Appellants/Intervenors excepted; but Appellee’s Board of Commissioners refused to pass on this issue and the effect this evidence had on the fairness, freeness and transparency of the October 10, 2017 elections. And to which conduct of Appellee’s Board of Commissioners, Appellants/Intervenors excepted.

3.47.    Appellants/Intervenors say that the CDHO refused to issue subpoena pursuant to Section 2.9(w) of the Elections Law and Appellee’s own regulations (Elections Hearing Regulations of May 6, 2016, Art. 8.2) for the presiding officer worksheets which would have shown how many voters were recorded to have cast their ballots at each polling station; and addenda produced at the various polling stations nationwide on October 10, 2017, which would have shown how many persons voted illegally on October 10, 2017, without their names being on the FRR. The evidence from these documents would have substantiated Appellants/Intervenors’ claim that massive frauds were committed during the course of the October 10, 2017 elections. And to which, Appellants/Intervenors excepted and argued the matter before Appellee’s Board of Commissioners; but Appellee’s Board of Commissioners did not pass on the issue and the effect it had on the fairness, freeness and transparency of the October 10, 2017 elections. And to which conduct of Appellee’s Board of Commissioners, Appellants/Intervenors excepted.

            3.48.    Appellants/Intervenors urged the CDHO during the argument that Appellee’s failure to rebut or contradict relevant species of evidence adduced at the trial by Appellants/Intervenors constituted admission of the facts which the evidence sought to prove. Davis v. Davis, 19 LLR 150. More specifically, Appellee did not produce any evidence to contradict or rebut Appellants/Intervenors’ evidence  that: (i)The FRR electronically stored on flash drives given to the political parties in September 2017 was significantly and substantially different from the FRR also electronically stored on a flash drive submitted by Appellee’s Executive Director under subpoena in November 2017 to the hearing, identified and marked, which confirms that the FRR was altered by Appellee after submission to the political parties in contravention of the Elections Law; (ii)That the flash  drives given to the political parties has 79 Polling Stations in ten (10) precincts missing amounting to some 35, 750 voters; (iii) That in 75 precincts at least one polling station is missing; (iv) That the same Voters ID was assigned to more than one voter and in some cases to up to 5 voters; (v)That several voters existed on the FRR multiple times, and the names of these voters and their voter ID numbers were given; (vi) That the  FRR was not published in hard copies (on paper) as required by law; (vii) That the FRR was not posted at the offices of election magistrates and at polling precincts for inspection by the public; (viii) That the FRR was not in sync with the data base posted at Appellee’s website, which was accessible only through the use of Appellee’s SMS verification system, and which in essence means that Appellee maintained two Voters Registration Rolls for the October 2017 Elections, in violation of the law. These species of evidence were never rebutted and under Liberian law and practice, where evidence by the adversary is not rebutted, it is deemed admitted. Neufville v. Killen, 31 LLR 587; Davis v. Davis, 19 LLR 150. The CDHO never applied this basic principle of law in his Final Ruling. And for which, Appellants excepted and argued the issues before Appellee’s Board of Commissioners; but Appellee’s Board of Commissioners totally ignored the issues and how the evidence affected the fairness, freeness and transparency of the October 10, 2017 elections. And to which conduct of Appellee’s Board of Commissioners, Appellants/Intervenors excepted.

3.49.    Clearly, Appellants/Intervenors adduced evidence which show that actual fraud had been committed by Appellee or allowed by Appellee to the prejudice of Appellants/Intervenors. The October 10, 2017 elections are therefore a fit subject for annulment; but if the Honorable Supreme Court were to rule that the evidence does not rise to the level to cause annulment of the October 10, 2017 elections, then Appellants/Intervenors pray that the Supreme Court should order that Appellee takes corrective and remedial steps to ensure that these frauds would not be committed by any person or allowed by Appellee to be committed.

           

 

THE UNCERTAINTY AND AMBIGUITY OF THE FINAL RULING OF THE CDHO

3.50.    Is the CDHO’s Final Ruling, which was unqualifiedly and unreserved confirmed by Appellee’s Board of Commissioners, so vague, indefinite, ambiguous and uncertain so as to make it impossible of enforcement and therefore properly a subject of reversal or modification?

3.51     In his Final Ruling, the CDHO said that in its defense to Appellants/Intervenors’ claims Appellee alluded to “difficulties and challenges” and the CDHO mandated Appellee to “take the necessary steps to correct what they (Appellee) referred to as difficulties and challenges before any future election”. As the CDHO did not particularize what these “difficulties and challenges” were, the mandate of his Final Ruling is vague, ambiguous, uncertain and incapable of enforcement. Also in his Final Ruling, the CDHO did not say exactly what Appellee should do “to correct” the “difficulties and challenges” faced by Appellee in its administration and management of the October 10, 2017 elections. So, the mandate of the CDHO’s Final Ruling is vague, ambiguous, indefinite uncertain and therefore incapable of enforcement.

3.52.    Appellant/Intervenors says the CDHO’s Final Ruling, which mandates the Appellee to “take the necessary steps to correct what they (Appellee) referred to as difficulties and challenges before any future election” does not include a system or process by which it can be determined whether Appellee has complied with such vague, ambiguous, indefinite and uncertain and therefore unenforceable mandate before any future election is held and the CHDO’s Final Ruling did not impose a timeframe within which these necessary corrective steps should be taken. Nothing is said in the CDHO’s Final Ruling how contestants in the run-off ordered by the CDHO will get the satisfaction that Appellee has complied with this mandate.

3.53.    Moreover, Appellants/Intervenors say that Section 82.5(2) of the Executive Law (the Administrative Procedure Act) clearly prescribes the form as to final determination and orders of an administrative agency with quasi-judicial powers. Liberian law (National Iron Ore Co. v. Gibson et al., 26 LLR 365; The Management of the National Iron Ore Co. v. Dennis et al. and The Board of General Appeals, Ministry of Labor, Youth & Sports) is very clear that in order to be enforceable a judgment (final determination), even of an administrative agency, must be certain and definite.       

3.54.    Appellants/Intervenors say that in denying Appellants/Intervenors’ prayer for annulment of the October 10, 2017 elections and confirming Appellee’s determination that a run-off election between Joseph Nyumah Boakai, Unity Party’s presidential candidate, and George Manneh Weah, presidential candidate for the Coalition for Democratic Change (CDC), should be conducted, at the minimum the CDHO should have also ruled that prior to conducting any run-off election, Appellee should comply strictly with the Constitution, the Elections Laws and all Appellee’s regulations regarding the FRR, which is a sine qua non for any free, fair and transparent election. The CDHO should have ruled at a minimum that the Appellee should conduct a verification of the FRR, remove all duplicate voters, multiple registrations,  and illegal voters, and to sanitize the process so that the elections are conducted in accordance with law. The CDHO’s failure to include these minimum requirement or standards as a pre-condition for a run-off election, was a reversible error. And Appellants/Intervenors pray the Supreme Court to so rule.

3.55.    Appellants/Intervenors also further say that considering that Appellee conceded that it experienced “difficulties” and “challenges” before and during the conduct of the October 10, 2017 elections, in ordering a run-off election instead of a re-run of the elections, the CDHO should have included a mechanism through which Appellants, on the one hand, and Senator George Manneh Weah and his Coalition for Democratic Change, would be satisfied that the “corrective measures” mandated to be carried out by Appellee had been satisfactorily done before a run-off election is held. For the CDHO’s failure to include such mechanism in his Final Ruling, without which none of the candidates would be satisfied that the “corrective measures” mandated by the CDHO had taken place, Appellants say that enforcement of the CDHO’s mandate would not be satisfactory to any of the parties to a run-off. And to which conduct of the CDHO and Appellee’s Board of Commissioners, Appellants/Intervenors excepted.

 

3.56.    Appellants/Intervenors say that the ambiguity, uncertainty and indefiniteness of the CDHO’s Final Ruling was raised with Appellee’s Board of Commissioners but Appellee’s Board of Commissioners ignored this issue and ordered that the CDHO’s Final Ruling that the request for a re-run election is denied and that his order for a run-off election is affirmed. The Appellee’s Board of Commissioners did not even make any reference to that portion of the CDHO’s Final Ruling, which says that Appellee conceded that it experienced “difficulties” and “challenges”  before and during the course of the October 10, 2017 elections and that Appellee should take the “necessary corrective steps before any future election” is held. This was a major reversible error committed by Appellee’s Board of Commissioners; and Appellants/Intervenors pray Your Honours to so rule.

 

THE MOTION FOR RECUSAL OF APPELLEE’S CHAIRMAN FROM PRESIDING OVER ALL MATTERS RELATING TO OR GROWING OUT OF THE OCTOBER 10, 2017 ELECTIONS

3.57.    Did Appellee’s Board of Commissioner err when it denied the Motion to Recuse filed against the participation of Appellee’s Chairman, Cllr. Jerome Korkoya, over the hearing of Appellants/Intervenors’ Appeal before Appellee’s Board of Commissioner and against his participation in whatever form or manner in rerun elections or a run-off election, whichever is determined by the Supreme Court?

            3.58.    Appellees/Intervenors, jointly with Charles Walker Brumskine, Harrison S. Karnwea, Presidential and Vice Presidential Candidates, the Representative Candidates of the Liberty Party and Liberty Party itself, filed a Motion for Cllr. Jerome Korkoya, Appellee’s Chairman, to recuse himself from presiding or otherwise participating in the electoral dispute before Appellee and from further participating in whatever form or manner in any electoral matters relating to the October 10, 2017 elections, whether there is re-run elections or run-off election at the end of the electoral dispute pending before Appellee. In support of this Motion, Appellants/Intervenors presented cogent evidence, supported by various newspaper releases and articles that Chairman Korkoya prejudged the election dispute, condemned Appellants as persons who were merely politically motivated and had presented baseless and unfounded claims against the October 10, 2017 elections. Appellants submitted that Chairman Korkoyah could not give them a fair and impartial hearing and could not preside over or otherwise participate in presiding over a fair, free and transparent election. Notwithstanding the cogent evidence against Chairman Korkoya, Appellee’s Board of Commissioners denied the Motion. And to which conduct of Appellee’s Board of Commissioners, Appellants/Intervenors excepted.

            3.59.    Liberian jurisprudence is replete with the fundamental and universally recognized principle that a person who appears before a judge is entitled to the cold neutrality and impartiality of that judge. In the first reported case on this issue, the Supreme Court held in 1935 in Ware v. Republic, 5 LLR 50, as follows:

A judge is elevated to a dignity, dedicated and consecrated to the adjudication of the rights of litigants and hence must avoid any course of conduct which would cause his impartiality to be questioned. Judicial officers should not attend public meetings where questions may be discussed which may afterwards come before them and every litigant is entitled to nothing less than the cold neutrality of an impartial judge; hence a judge who is prejudiced or otherwise disqualified may be successfully challenged. Courts should be free from reproach or the suspicion of fairness.

            3.60.    In another case decided by the Supreme Court in 1936, the Supreme Court ruled that “The principles of impartiality, disinterestedness, and fairness on the part of the judge are as old as the history of courts of justice, and it is those three cardinal principles supposed to exist which give credit and tolerance to decrees of judicial tribunals.” Republic v. Harmon and Brownell, 5 LLR 300. In another case, decided by the Supreme Court in 1937, the Supreme Court reiterated that “Every litigant … is entitled to nothing less than the cold neutrality of an impartial judge”; and that “It is of the most vital importance that courts should be free from reproach or the suspicion of unfairness…”. In the same 1937, this time in a civil case, the Supreme Court reiterated for the second time that every litigant is entitled to the cold neutrality of an impartial judge and even where the parties don’t object to a partial judge presiding over a cause the State cannot endure the potential scandal and reproach which may result therefrom. Richards v. McGill and McGill-Hilton, 6 LLR 81.These same principles of law regarding the cold neutrality of a judge were again reiterated by the Supreme Court in 1971 in the case, Talib v. Republic, 20 LLR 254. More recently in 1981, the Supreme Court reiterated the principles that “A judge is elevated to a dignity, dedicated and consecrated to the adjudication of the rights of litigants and hence must avoid any course of conduct which would cause his impartiality to be questioned. Judicial officers should not attend public meetings where questions may be discussed which may afterwards come before them and every litigant is entitled to nothing less than the cold neutrality of an impartial judge; hence a judge who is prejudiced or otherwise disqualified may be successfully challenged. Courts should be free from reproach or the suspicion of fairness.” Saar v. Republic, 29 LLR 35.

            3.61.    In another more recent civil case decided by the Supreme Court in 1983, the Supreme Court ruled that “The parties to a suit are entitled, as a matter of right, to the cold neutrality of the judge, which is one of the essential elements of due process”. (EMPHASIS OURS). American Life Insurance Company v. Boima, 31 LLR 528. And in another more recent civil case decided by the Supreme Court in 1984, the Supreme Court reiterated that “Every litigant is entitled to nothing less than the cold neutrality of an impartial judge; hence a judge who is prejudicial, or otherwise disqualified, may be successfully challenged”.

            3.62.    In 1988, speaking of the Bench en banc, Mr Justice Junius said that “Trial judges must keep out of cases they are to hear so as to enable them to handle such cases objectively and without prejudice to the parties.”Francy et al. v. Republic, 34 LLR 680. In the same 1988, Mr. Justice Azango, speaking for the Bench en banc, said “Fairness and impartiality are expected of every judge in the trial of every cause before him in order than transparent justice may be meted out.” Mr. Justice Azango went on also to say that “Judges should never allow undue or improper pressure to be made to bear upon them by means of threats emanating from any source”. Mr. Justice Azango further said on behalf of the entire Bench that “Courts of justice have nothing to do with opinions and sentiments which may surround a case; they should not be influenced by local prejudice or prevailing public opinions; and the courts, as dispensers of law and justice should close their eyes and ears to everything except what is legally introduced in the case.” Matierzo v. Republic, 34 LLR 791.

            3.63.    In 1989, Mr. Justice Azango again spoke for the Bench en banc and reiterated that a judge is dedicated and consecrated to the adjudication of the rights of litigants, and hence must avoid any course of conduct which cause his impartiality to be questioned. Moort-Horace v. Bailey, 36 LLR 329. Later in 1990, Mr. Justice Junius again spoke for the Bench en banc and reiterated that “The principle of impartiality, disinterestedness and fairness on the part of a judge must always be exhibited as action of court …”.  And finally, in 2001, Mr. Justice Wright speaking for the Bench en banc, said that “Judges should not allow themselves to be put in positions of great embarrassment or to compromise the cool neutrality which at all times should be exhibited by them.” Lone Star Insurance Company v. Cooper and Abi Jaoudi & Azar Trading Corporation, 40 LLR 549.

            3.64.    Regarding the impartiality of Appellee’s commissioners, including its Chairman, it is provided by the Elections Law that no commissioner shall be a member of any political party or shall otherwise affiliate with any political party or with an association or organization with political interest nor shall a commissioner canvass for any political or elective office. A commissioner is also required to solemnly renounce all allegiance to and sever all connections to, affiliation to and relationship with any political party. Elections Law, sec. 2.5. But more than this, even though Appellee is not a court of law and its commissioners are not necessarily judges, the impartiality and cold neutrality required by law of judges are applied to Appellee and its commissioners in the words of the Administrative Procedure Act that “The functions of all presiding officers and of officers participating in determinations (of administrative matters) shall be conducted in an impartial manner.” Executive Law (Administrative Procedure Act), sec. 82.4(7)(c).

            3.65.    Taking all of these laws into consideration and matching them with the conduct of Chairman Korkoya, which conduct was proved and never disputed by Chairman Korkoya or Appellee, it is clear that Chairman Korkoya compromised himself and could not give Appellants/Intervenors a fair hearing. It is also clear that whatever the final determination of this election dispute might be, whether a re-run of the October 2017 elections or a run-off election as ordered by Appellee on October 19, 2017, confirmed by the CHDO and re-confirmed by Appellee’s Board of Commissioners, Chairman Korkoya has so compromised himself that he is incapable of fairly participating in either process as a Appellee’s Chairman or as a mere commissioner. And for these reasons, Appellants/Intervenors pray Your Honours to declare that the opinion and vote of Chairman Korkoya on the appeal before Appellee’s Board of Commissioners be struck and be of no effect as though Chairman Korkoya never participated in that proceeding before Appellee’s Board of Commissioners. Appellants/Intervenors also pray that Your Honours disqualify Chairman Korkoya from participating in any aspect of re-run elections or a run-off election, whichever is determined by this Honorable Court, for reasons that he has so compromised himself as to make it impossible for him to be impartial and fair as contemplated by law.

THE QUESTIONABLE INTEGRITY AND CREDIBILITY OF APPELLEE’S
EXECUTIVE DIRECTOR TO PERFORM HIS DUTIES AND RESPONSIBILITIES
DURING THE BEFORE THE COURSE OF ANY FUTURE ELECTIONS

3.66.    Given that it is Appellee’s Executive Director who planned and produced the flawed SMS verification system, advised Appellee to use it for the October 10, 2017 elections, appeared on the witness stand at the trial and give false statements, made misrepresentations and blatantly lied in order to cover up the irregularities and frauds committed before and during the course of the October 2017 elections, can he impartially serve in that position for re-run elections or run-off election, whichever is determined by the Supreme Court?

            3.67.    The Elections Law provide that Appellee shall have an Executive Director, who shall be the principal administrative assistant to Appellee’s Chairman, be responsible for the general administration of Appellee and to whom the sectional heads of Appellee shall be responsible. Elections Law, sec. 2.18. The law also provides that Appellee’s Executive Director shall; (a) Have charge of the general administrative supervision of Appellee; (b) serve as secretary to Appellee, attend the deliberations of its Board of Commissioners and keep minutes of its transactions; (c) keep and preserve Appellee’s records; (d) keep and supervise the works of the administrative sections and Appellee’s local offices in the counties and be accountable to Appellee for the smooth operation of Appellee’s division of administration; and (e) perform such other duties and functions as may be required of him. Elections Law, sec. 2.21.

            3.68.    At the hearing before the CDHO, Appellee presented two witnesses: Appellee’s Executive Director was Appellee’s principal witness; and the other witness was Appellee political affairs director. What is important is that it is Appellee’s Executive Director who admitted to planning and producing the SMS verification system and advised Appellee to use it in violation of law. It is Appellee’s Executive Director, who also advised Appellee to violate other regulations, such as storage of the FFR on flash drives and the use of these flash drive as substitute for publication of the FRR in hard copies at the registration centers and polling places, again in violation of law and Appellee’s own regulations. Again, it is Appellee’s Executive Director, who misrepresented the fact that ballots buried in Glay Town, Grand Gedeh County, were “Know Your Candidates” postal, not used ballots. It is this same Executive Director who placed hundreds and hundreds more registrants on the FRR and stored that information on the flash drive that was subpoenaed by Appellants/Intervenors and blatantly lied that the flash drive which Appellants/Intervenors submitted into evidence as the flash drive given to them in September 2017 had been corrupted by the analysis conducted by Appellants/Intervenors’ expert. It is Appellee’s Executive Director who conceded that Appellee faced “challenges” and “difficulties” before and during the course of the October 10, 2017 elections, which “challenges” and “difficulties” were this Executive Director’s duties and responsibilities to avoid and manage.

            3.69.    Appellants/Intervenors say that Appellee’s Executive Director, according to his own testimony, has had tremendous education and experience with elections not only in Liberia and in other countries and is head of the technical department (especially the technology area) of Appellee’s operations. Appellee’s Executive Director is the fulcrum of Appellee’s operations; it is through him that Appellee functions on a day-to-day basis, especially during the times of elections. Clearly, the gross irregularities and massive frauds complained of and proved could not have been accomplished or could not have occurred without the complicity, default and/or incompetence of Appellee’s Executive Director. Simply stated, the credibility and integrity of Appellee’s Executive Director has been so tarnished and undermined that Appellants/Intervenors have no confidence in his ability to fairly and impartially manage and administer re-run elections or a run-off election, whichever is ordered by the Honourable Supreme Court. As trust in the electoral system, managed by human beings, is absolutely important for the fairness, freeness and transparency of any election, Appellants/Intervenors say that the continuation of Appellee’s Executive Director in the position now held by him and with the duties and responsibilities and powers exercised by him before and during the October 10, 2017 elections will undermine the integrity and credibility of any re-run elections or run-off election, whichever is eventually ordered by the Honourable Supreme Court. Appellants/Intervenors have no faith and trust in the impartiality of Appellee’s Executive Directors; the facts are clear that if he were allowed to continue to serve as Appellee’s Executive Director, he would employ the same tricks and artifacts, give the same advice and opinions to Appellee so as to justify his conduct before and during the course of the October 10, 2017 elections. For these reasons, Appellants/Intervenors pray Your Honours to disqualify Appellee’s Executive Director from supervising, managing and participating in any way or manner in any re-run elections or run-off elections, whichever the Honourable Supreme Court might determine at the end of this proceeding because he has so compromised himself as to make it impossible for him to competently manage and administer any election ordered by Your Honours and to be fair and impartial during the course of any such election.   

 

IV.       PRAYER

            WHEREFORE AND IN VIEW OF THE FOREGOING, Appellants/Intervenors respectfully prays the Honourable Supreme Court, as follows:

1. To annul the October 10, 2017 elections and order a re-run of those elections, with certain provisos herein stated below;

 

OR

2. To confirm Appellee’s Final Ruling, but with certain provisos that before conducting a run-off election ordered by the Appellee when announcing the final results of the October 10, 2017 elections and confirmed by the CDHO in his Final Ruling, these provisos being stated herein below;

3. To whether in the case of an order for  re-run elections or for a run-off election, do the following:

(i)The FRR given on flash drives to the political parties in September 2017 being significantly and substantially different from the flash drive submitted by Appellee’s Executive Director under subpoena in November 2017, necessitate a sanitization of the FRR;

(ii)The flash  drives given to the political parties has seventy-nine (79) polling places in ten (10) precincts missing amounting to some 35, 750 voters, which necessitates the sanitization of the FRR;

(iii) In the seventy-five (75) precincts at least one polling place is missing, which necessitates sanitization of the FRR;

(iv) The same Voters ID was assigned to more than one voter and in some cases to up to five (5) voters, which necessitates sanitization of the FRR;

(v) Several voters existed on the FRR multiple times, which necessitates the sanitization of the FRR;

(vi) The FRR was not published in hard copies (on paper) as required by law and regulations and this should therefore be done;

(vii) The FRR was not posted at the offices of election magistrates and at polling precincts for inspection, as required by law and Appellee’s regulation and this should therefore be done and that such publication of the FRR should be done not less than thirty (30) days, as contemplated by the Elections Law, before re-run elections or run-off election, whichever is ordered by Your Honours, is conducted;

(viii) The FRR was not in sync with the data base posted at Appellee’s website, which was accessible by Appellee’s SMS verification system, and which in essence means that Appellee maintained two Voters Registration Rolls for the October 2017 Elections, in violation of the law. And so the Appellee’s SMS verification system should not be used for any future election;

(ix)       The ballots and their stubs should carry serial numbers, with the serial numbers for each ballot corresponding with the serial number on its stub so as to ensure the integrity of the ballots;

(x)        To order that the maximum number of ballots to be printed should be not more than 10% over and above the maximum number of registered voters on the sanitized FRR so as to make administration of any election easier, expeditious and smoother;

(xi)       To order that the maximum number of voters allowed at each polling place should be not more than 500 and that the maximum number of ballots allocated to each polling place should be not more than 550, the extra 50 ballots to be used for replacement of spoiled ballots, which would make the administration of any election easier, expeditious and smoother;   

4. To order that for the sanitization of the FRR Appellee should employ the assistance of an data management expert, specifically a non-Liberian, who can be trusted by the parties to  re-run elections or run-off election, whichever is ordered by Your Honours, so that they parties will have confidence in the sanitization process;

5. To order that the Appellee employs competent and sufficient polling staff for the conduct of re-run elections or run-off election, whichever is ordered by Your Honors, so that the “challenges” and “difficulties” allegedly experienced by Appellee and acknowledged by the CDHO in his Final Ruling, before and during the course of the October 10, 2017 elections would not recur;

6. To order that Appellee acquires and places at the disposal of its polling staff and magisterial offices logistics and materials sufficient to ensure the efficient and expeditious conduct of  re-run elections or run-off election, whichever is ordered by Your Honours;

7. To declare that the opinion and vote of Chairman Korkoya on the appeal before Appellee’s Board of Commissioners be struck and be of no effect as though Chairman Korkoya never participated in that proceeding before Appellee’s Board of Commissioners and to disqualify Chairman Korkoya from participating in any aspect of re-run elections or a run-off election, whichever is determined by this Honorable Court, for reasons that he has so compromised himself as to make it impossible for him to be impartial and fair as contemplated by law;

8. To disqualify Appellee’s Executive Director from supervising, managing and participating in any way, form or manner in any re-run elections or run-off election, whichever the Honourable Supreme Court might determine at the end of this proceeding because he has compromised himself as to make it impossible for him to competently manage and administer any election ordered by Your Honours and to be fair and impartial during the course of any such election; and  

9. To grant unto Appellants/Intervenors any other and further relief as in such matters is made and provided by law.    

RESPECFULLY SUBMITTED

Joseph NyumahBoakai and James
Emmanuel Nuquay, Presidential and
Vice Presidential Candidates at the
October 10, 2017 Elections and the
Unity Party, all of Liberia
APPELLANTS/INTERVENORS

 

By and through their Counsel:

 

 

____________________________                            ____________________________
Benedict F. Sannoh                                                     J. Laveli Supuwood
COUNSELLOR-AT-LAW                                        COUNSELLOR-AT-LAW

 

 

__________________________                                _____________________________
Snonsio Nigba                                                            Golda Bonah-Elliott
COUNSELLOR-AT-LAW                                        COUNSELLOR-AT-LAW

 

 

DATED THIS _______ DAY OF _______________________, 2017.

 

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