A decision whether or not the November 7 runoff will go on as planned now rests with Associate Justice Kabineh M. Ja'neh, presiding chamber justice of the Supreme Court, who is expected to make the decision today.
Justice Ja'neh gave the assurance yesterday when he listened to legal arguments between the Liberty Party (LP) seeking cancellation of the result of the October 10 presidential and legislative elections due to alleged fraud and irregularities and the failure of the National Elections Commission (NEC) to hear its October 24 complaint.
However, the NEC also argued that it is mandated by the constitution to determine any complaint within 30 days, meaning it has the right to hear and decide the LP's complaint of irregularities by November 23, by which time the runoff should have been concluded.
Immediately after the argument, Ja'neh told the gathering, dominated by partisans of the LP including its vice standard bearer Harrison Karnwea, that "Whether it warrants the issuance of the alternative writ of prohibition or not, you will hear from me today," which was yesterday.
He added, "Because of the constitutional issues raised by the LP, the matter will go to the full beach of the Supreme Court (other judges) for determination."
If Justice Ja'neh were to issue the writ today, it means that the NEC will have to suspend all activities leading to the conduct of the November 7 runoff, pending the intervention of the full bench of the Supreme Court, which decision may likely not give the electoral body the opportunity to conduct the runoff on Nov. 7.
During the argument, LP lawyer Hilton Powo said the NEC had refused to listen to their complaint but proceeded with the electoral process by printing ballot papers for the November 7 runoff, which means that their complaint will not be heard until the election is concluded.
Section 6.1 of the New Elections Law provides that "any political party or candidate who has justifiable reasons to believe that the elections were not impartially conducted and not in keeping with the elections law which resulted in his defeat or the defeat of a candidate shall have the right to file a complaint, and such complaint must be filed not later than seven days after the announcement of the results of the election."
"We filed our complaint within the stipulated period of seven days and yet NEC is not doing anything to hear it; therefore, we asked the court to restrain the NEC from further conducting the electoral process, and be made to hear matters," Powo emphasized.
In counterargument, NEC lawyer Musa Dean said they have not violated any provision of the constitution.
"They filed their complaint and we have 30 days from the date of the filing to make a determination of the matter; so, why would they want us not to follow the constitutional provision, which we are not prepared to do," Cllr. Dean maintained.
Article 83 (c ) of the 1986 Constitution provides that "The returns of the elections shall be declared by the Elections Commission not later than fifteen days after the casting of ballots. Any party or candidate who complains about the manner in which the elections were conducted or who challenges the results thereof shall have the right to file a complaint with the Elections Commission. Such complaint must be filed not later than seven days after the announcement of the results of the elections."