18 July 2017

Liberia: Who's Next?

Photo: The New Dawn
The Supreme Court of Liberia

Liberia's Supreme Court has upheld the National Elections Commission (NEC's) decision rejecting Assistant Post and Telecommunications Minister Abu Bana Kamara's quest to stand in the October elections while he still occupies his appointed post in violation of the Code of Conduct.

The nation's highest court handed its opinion on Monday, 17 July in Monrovia, warning that Mr. Kamara's action of remaining in his position is not only in violation of the Code of Conduct, but "an utter affront to the decision of this Court".

"Under the circumstances, we do not see the need to reverse the decision of the NEC, though made without due process, since the conduct amounts to an egregious violation of the Code, and we concur with the NEC's rejection and disqualification of him from contesting an elective position in the 2017 elections", Supreme Court rules.

Section 5.1 of the Code of Conduct bars all presidential appointees from contesting elected offices, with an alternative provided in Section 5.2 (a) that any appointed official who desires to contest for public office shall resign the occupied post at least two years prior to the conduct of elections.

Further in Section 5.2 (b), the Code of Conduct gives public officials in tenured offices who desire to contest in elected offices three years to resign their post prior to the elections.

As assistant Minister, Mr. Kamara falls in the two years resignation category, but the Supreme Court finds that even up to the time it renders its decision on his petition for a writ of prohibition against the NEC over his rejection, he still occupies the post.

Reading the Supreme Court Opinion, Chief Justice Francis S. Korkpor, Sr. says the Court expects every affected public official appointed by the president including Mr. Kamara to take due note of its earlier decision in March this year in which it ruled that the Code of Conduct was constitutional.

"The petitioner failed or refused to take due note of the Opinion handed down by this Court, but instead, the petitioner decided to flaunt the decision of the Court such that up to the date of hearing of this case, and even to the date of this judgment, the petitioner is still maintaining and holding onto the position ... ", Chief Justice Korkpor says.

Recalling the case involving Selena Polson Mappy vs Republic of Liberia, Chief Korkpor notes that the Court made it clear that the defining intent of the Legislature concerning public officials covered under the instrument is found in Article 56 (a) of the Constitution.

He says it names the officials as all cabinet ministers, deputy and assistant cabinet ministers, ambassadors, ministers and consuls, superintendents of counties and other government officials both military and civilian that are appointed by the president. "... [The] alternative writ of prohibition issued is ordered quashed and the peremptory writ of prohibition prayed for is hereby denied", the Court rules.

While the Court recognizes the failure and errors of the NEC to have accorded Mr. Kamara due process before rejecting him, it however rules that his request for prohibition is not the proper remedy because the case is an election matter which requires expeditious hearing and determination.Citing Article 83 [c] , the Court says the NEC, within days of the receipt the notice of appeal shall forward all records in the case to the Supreme Court which in no later than seven days shall hear and make determination.

The Court therefore says Mr. Kamara did not only pursue the wrong course but risked undue delay in the election matter which was clearly against the intent of the law.The Court also dismisses Mr. Kamara's argument that the amendment made to the Code of Conduct by the Legislature by giving certain responsibility to the NEC instead of the Office of the Ombudsman, contravened the ECOWAS Protocol.

Rather, the Supreme Court decides that the procedural change from one public agency to another is not substantial in nature and is therefore not within the prohibition of the ECOWAS Protocol.The NEC has however been mandated to conduct hearing and give all aspirants the opportunity to explain any deficiency or perceived deficiency to set the basis for a determination as to the penalty to be imposed, as otherwise the imposition of a penalty could cast a doubt on the process before the NEC.

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