Monrovia — The Supreme Court of Liberia has refused a request by the Collaborating Political Parties (CPP) to invalidate the ongoing National Elections Commission (NEC) voter registration exercise, in which the collaboration had questioned the constitutionality of the ongoing process without demarcation.
In its ruling on Wednesday, April 12, Supreme Court Chief Justice Sie-A-Nyene Youh, reading the opinion, noted that it finds no reason to disturb the ongoing voters' registration exercise since the NEC is not in violation of the Constitution as regards Article 80(d)(e).
The CPP has questioned the constitutionality of the NEC to conduct voter registration before the handling of the census in the country.
The CPP, during a hearing into its petition on Tuesday, April 4, before the full bench, through its legal representatives, Cllr. Aloysius Toe and Finley Karngar, contended that the action of the NEC to conduct Voters Registration after the conduct of a Census but without constitutionally demarcating constituencies into which a voter is to be registered raises constitutional questions.
They cited Article 89 (b) of 1986, as amended Liberian Constitution, and said it is required in Article 39 that "the Legislature shall cause a census of the Republic to be undertaken every ten years."
Further referencing Article 80 (e) of the 1986 Constitution as amended, "Immediately following a national census and before the next elections, the Elections Commission shall reapportion the constituencies by the new population figures so that every constituency shall have as close to the same population as possible; provided, however, that a constituency must be solely within a county," and that each constituency shall have an approximately equal population of 20,000, or such number of citizens as the Legislature shall prescribe in keeping with population growth and movements as revealed by a national census; provided that the total number of electoral constituencies in the Republic shall not exceed one hundred."
However, the CPP said that contrary to the mandate of the Constitution of Liberia, the NEC, in September 2022, published what it called the "Key electoral dates - 2023 Presidential and Legislative Elections," in which it announced plans to conduct Voters Registration beginning December 15, 2022, and ending on March 17, 2023, without any indication to demarcate and reapportion constituencies, as required by Article 80 (e) of the Liberian Constitution of 1986, as amended.
Hence, they said, by its refusal to provide for the demarcation and reapportionment of constituencies in its schedule of activities, the NEC was indicating that it had no desire or intent to respect the mandate of the constitution and perform its constitutional duty.
"After the national census commenced in early November 2022, the Respondent National Election Commission, again in January 2023, published another 'Revised-Key Electoral Dates - 2023 Presidential and Legislative Elections,' in which it further announced plans to conduct Voters Registration beginning March 20, 2023, and ending on May 10, 2023, and again made no indication or provision in the document to demarcate and reapportion constituencies, as required by Article 80 (e), Lib. Const. (1986, as amended)," the NEC argued.
Therefore, Cllr. Aloysius Toe, in his assertion, viewed the failure of the NEC to consider the demarcation and reapportionment of constituencies, before the voter's registration, as an action that amounts to blatant dereliction of its constitutional duty.
They said that the NEC move to commence voter registration, beginning March 20, without first demarcating constituencies, consistent with the Constitution of Liberia, is a "true desire and intent to violate the Constitution."
In its petition, the petitioner Collaborating Political Parties (CPP) argued that the "Liberian Constitution commands that both of these prerequisites and preconditions, that is, to prescribe population threshold and demarcate constituencies, "must be met before the National Elections Commission can proceed with any voters' registration since every voter must, as a consequence of registration, know what constituency he or she is in, and that information is required to be on the registration card of the voter.
Additionally, the CPP legal team in their argument before the full bench noted that to adopt a course or policy to proceed with the registration of voters without first having the mentioned preconditions met is not just in clear violation of the Constitution but is unconstitutional.
The CPP, therefore, challenged the constitutionality of the action by the NEC, as neither the National Elections Commission nor the Legislature has the authority to do any act in contravention of the Constitution and the constitutional mandate or to indulge in acts and activities tending to supersede the Constitution.
The CPP further argues that the action by the NEC to register voters when the Legislature has not set a threshold for the demarcation of electoral constituencies is not only a clear divergence from the mandates of the Constitution but a clear violation of the above-quoted provisions of the Constitution, therefore describing it unconstitutional and thus "praying that the full bench of the Supreme Court declares the acts and actions of the NEC unconstitutional, void, and without any legal effect.
The CPP averred that the census results have been submitted to the Legislature by LISGIS, and it is up to the "Legislature to set the new threshold by which NEC would then be able to demarcate new constituencies.
Disputing the CPP assertion to the high court, lawyers representing the NEC, Cllr. Nyenati Tuan and Cllr. Wilkins Wright requested the High Court to dismiss the petitioner's request on grounds that the petition did not include the names of the sitting justices of the Supreme Court, further taking notice of the "frivolous position that under the constitutional doctrine of separation of power," as found in Chapter 1, Article 3 of the Liberian Constitution (1986, as amended).
According to the NEC legal representation, the National Elections Commission does not have the legal authority to command or compel the legislative branch to carry out and perform its functions outlined in the Constitution.
The NEC further sees the responsibility as wrong, untenable, and legally unreasonable, that because Article 80 (c), Lib. Constitution (1986, as amended), requires every Liberian citizen to register and vote in a constituency, and further because the country is currently divided into seventy (73) electoral constituencies, National Election Commission is legally justified to register eligible voters in one of those seventy-three (73) constituencies, even if the constitutional prerequisites and preconditions are not met.
In further relying on Chapter 4 Section 4.1(3) of the New Election Law of 1986 as Amended, which provides that "no change in the definition of a constituency or a voting precinct shall apply to an Election if the Election day is less than twelve (12) months after the day the change is published, unless the commission announces, at least 120 days.
In further reliance on Chapter 4, Section 4.1(3) of the New Election Law of 1986 as amended, which provides that "no change in the definition of a constituency or a voting precinct shall apply to an election if the election day is less than twelve (12) months after the day the change is published, unless the commission announces, at least 120 days before the election day, that all necessary preparations are being made to allow the changes to the election," the NEC said, under the above-cited law, it has no authority to change the definition of a constituency. That is, it has no authority to demarcate a constituency of approximately equal population as required by the constitution, unless the Legislature comes out with a new reapportionment of electoral constituencies between now and the end of May 2023.
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The NEC legal team further maintained that there will not be and cannot be any re-demarcation of the new electoral constituency for the 2023 General Election.
However, following both parties' legal presentations to justify their arguments, the Supreme Court noted that in its jurisdiction, where a case does not commence at the National Elections Commission and the party adversely affected by a decision therefrom appeals to the Supreme Court, said the case does not constitute an election matter within the contemplation of the constitutional mandate that the Supreme Court hears and decides on an election matter within seven (7) days.
"Hence, the mere fact that political parties, an alliance, a candidate, or the NEC are mentioned or challenged in a case does not also make same an election matter; and that the Constitution must be interpreted in light of the entire document rather than a sequestered pronouncement, that every provision is of equal importance and even where there is an apparent discrepancy between different provisions, the Supreme Court should harmonize them if possible," Justice Youh noted.
According to the high court, in the instant case, Article 80(de) is linked and interdependent on the other, and while the NEC has a duty under Article 80(e) to reapportion constituencies, the said duty is not self-executing; but rather, the duty to reapportion constituencies can only be executed based upon the preconditions that a National Census Report be concluded and submitted to the Legislature.
The court further informed that the Legislature shall create the threshold, and then the NEC performs its duty to reapportion the constituencies under Article 80(e).
Therefore, Chief Justice Youh has mandated the Clerk of the Supreme Court to inform the parties accordingly, with costs being disallowed, that the Supreme Court finds no reason to disturb the ongoing voters' registration exercise.
