By: Gerald D. Yeakula, Sr., Esq.

Democracy is based on the will of the people. In  Liberia’s case, a little over 2.4 million registered voters carry this will. But historically, this is a country where elections have been  judicialized. Thus, the will of five, viz. three men and two women, might just  decisively determine the will of the majority of eligible voters. The role of electorates, and the electoral management body in voting their leaders and ensuring that votes are tallied as cast respectively, are just as important as the bang of the gavel of a majority Supreme Court opinion. As the final arbiter of electoral disputes,  Liberia’s highest court finds itself in a delicate position: determining whether results as reported by the electoral management body are in tandem with the popular will. This is not simply a matter of arithmetic. It is a matter of delivering justice grounded on fundamental rule of law principles:  participation, free and fair elections, equality, transparency,  accountability and of course, public policy. As Liberians go to the polls on October 10, it would be remiss to ignore the historic centrality of the Court to past elections’ outcomes as those probably foreshadow future outcomes. This piece inquires whether the Supreme Court of Liberia under the leadership of Chief Justice Sie-A-Nyene G. Yuoh is well-positioned to deliver on the task at hand. The inquiry traces the composition and reputation of the Yuoh bench, and surveys its election-related decisions with a view to understanding its disposition.

 

The makeup

The Yuoh bench succeeds the bench of retired Chief Justice Francis S. Korkpor, Sr. A legal commentator, Windor D. Tarplah, remembers him as a  man of “stoic personality and courage but whose legacy was stained in later years” by indecisive leadership pertaining to the Legislature’s impeachment of fellow Justice Kabina Ja’neh and the self-immolation of a judicial staff, Archie Ponpon.[i] His appointment by President Weah as Government’s Representative to the Board of Directors of the mining company, ArcelorMittal Liberia Holding Limited, following his departure from the highest Court, did not help skepticisms about the Court’s relationship with the Weah administration.

Enters the Yuoh bench. Yuoh’s appointment by President Weah was greeted in feminist circles with cheers as female leadership returned to the Judiciary after a 19-year hiatus. Still, others were concerned about why she was tipped for the top job ahead of the most senior Associate Justice, Jamesetta H. Wolokollie. Justice Wolokollie is also female. Truth be told, although it has happened in some cases, there is no requirement that the most senior justice gets the job. Nonetheless, these concerns revive questions of judicial independence vis-à-vis political interferences. Of note also, is Justice Yuoh’s close personal ties with Senator Edwin M. Snowe, a huge western region powerbroker and avowed campaigner for the Weah second term.

Additionally, in 2018, eyebrows were raised over President Weah’s appointment of then Senator of 13 years, Joseph N. Nagbe to the Bench. Weah and Nagbe had served together in the Senate. Justice Nagbe’s health and its interplay with his judicial functions was a matter of concern at the time. The concern turns out valid as Nagbe’s involvement on the Court has been limited. For instance, of the 42 opinions rendered and published by the Court between January and October 2023, Justice Nagbe has delivered only three although the other justices have each delivered nine on average. Further, it is worth noting that all opinions delivered by Justice Nagbe were delivered in January 2023, raising questions about his involvement with cases decided thereafter. When electoral matters come before the Court later this year, should we anticipate his absence? As required by law, which senior judge might be expected to sit in his stead? Or will he reappear to decide the matter?

Past happenings at the Court also create concerns including the 2019 impeachment of former Associate Justice Kabina Ja’neh on account of a judicial opinion rendered. Such ground runs contrary to the constitutional grounds for impeachment. In a separate case deemed determinative of how the 2017 elections that brought President Weah to power went, Justice Ja’neh had dissented to the majority court finding of fraud during that election but which allowed a runoff. The Court opined that the fraud was not egregious enough to overturn the results announced by the National Elections Commission (NEC). Would  Ja’neh’s impeachment now ostensibly serve an unnerving and chilling reminder to sitting justices to be careful… who’s next? In recent years, the Court’s recompositing has also fueled perceptions of religious and ethnic gamesmanship. Justice Ja’neh, a Muslim, was replaced with Justice Yussif D. Kaba, another  Muslim, and retired Chief Justice Korkpor, a Nimbaian, was replaced with another Nimbaian, Justice Yamie A. Gbeisay. Some observers already suspect that tradeoffs and tokenism was at play. With three out of five Justices appointed by Weah, and a fourth elevated, political-legal analysts fear that the Court has tilted in Weah’s favor.

Indeed, the question of who occupies a judicial office goes to the core of judicial independence. Unlike countries like South Africa, Kenya, and Uganda where a Judicial Service Commission has the responsibility to vet candidates for judicial posts and make recommendations to the President or appointment, Liberia has no such prescription and the President is free to appoint officials of his choice. The Independent National Commission on Human Rights of Liberia (INCHR) has lamented that absent a constitutional or statutory framework to vet the competency, integrity, and qualification of those aspiring for judgeships, the Judiciary is prone to political influences from an imperial presidency.[ii] So, can the Yuoh bench be considered susceptible to political influences? While the optics might seem to suggest an affirmative response, the author believes that decisions and conduct of the Justices are more dispositive on this point. Gaps or shortcomings of the current mechanism for judicial appointments should not define the honorable Justices; their deeds should.

 

Yuoh’s Court in action

 With over 40 years of legal experience under her belt, Chief Justice Yuoh commanded the respect of her peers long before assuming the high office. Her firmness of purpose, coupled with a great sense of humor, have gained her admiration in many quarters. She is already making marks in just over a year  as Chief Justice.  Her address at the opening of the October term of the Supreme Court serves us clues in this regard. “We are resolved to reposition our courts to a judicial stature that will not only be highly respected but revered by all despite the changes of our modern society,”remarked the learned Chief Justice. She continued that efforts applied by her Bench will “fan the fires of hope in our people”. Fires or embers? The choice has always been hers and will continue to be.

A study published in 2021 by the Center for Transparency and Accountability in Liberia (CENTAL) showed that only 28% of respondents had confidence in the judiciary’s   internal corruption fight. 28% of respondents also identified court services as the public service most prone to corruption. It is, therefore, little wonder that the Chief Justice  embarked on a course to “implement judicial policies that will make the workings of our courts more efficient, visible, and appreciated by our citizens and residents”. She gave judicial workers an aptitude test to inform placement and other personnel decisions. On November 7, 2022, the Yuoh Bench issued a writ of arrest for the Minister Finance and Development Planning, Samuel D. Tweah, due to delay in paying salaries of judicial workers. In August 2023, the Supreme Court adjudged Cllr. Frank Musah Dean, Minister of Justice and Mr. Ledgerhood Rennie, Minister of Information, Cultural Affairs, and Tourism guilty of criminal contempt of the Judiciary Branch of government. The ministers were ordered to publish separate apologies once a week in three newspapers over the course of three weeks and pay a fine of US$500 each. But while the Court has received praise for its courage to tackle administrative and operational challenges, as well as the courage to take on major players in government, questions still linger about the depths to which the Court can descend to deliver nuanced and lucid interpretation of law.

 

The Bench, the law, and elections

The first major test of the Yuoh bench came with the Kla Martin case.[iii] Edwin Kla Martin, then Chairperson of the Liberia Anti-Corruption Commission (LACC), had been removed by an Act of the Legislature dissolving the LACC and, at the same time, re-establishing with provision for reconstituting a new Board of Commissioners. Kla Martin, who had been protected by tenure, challenged the constitutionality of the said Act. Here, the Court ruled that by passage of the Amended LACC Act, the Legislature was simply performing a Legislative function. It, however, ruled that the sanctity of contract should be considered—implying payment for the unexpired term of the contract. This opinion has basis in law only as to the lawmaking powers of the Legislature. Yet, questions around abuse of power by the Legislature premised on a weak constitutional framework remain unanswered.  Is the Court’s ruling a permissive grant to the Legislature to  destroy other similarly situated institutions by mere legislative dissatisfaction with their performance? Should the Supreme Court have considered implications of such legislative acts on democratic governance? Or should the failure of the Constitution to entrench key state institutions be left unattended to? For instance, even the General Auditing Commission and National Elections Commission established by a single line in Article 89 of the Constitution are vulnerable to similar legislative abuse of power since their enabling Acts are products of the Legislature. Were the Legislature to pass a “New Elections Law of 2023” today abolishing the National Elections Commission, re-establishing it, and re-configuring the NEC’s leadership, would the Court sit idly by and allow the seeming abuse of legislative powers? Where lies the point of departure? The author believes judicial activism could have been deployed to check the legislative overreach. However, we will save that discussion for a later date in order to focus on the elections at hand.

The Supreme Court has already begun rendering opinions on matters affecting the 2023 elections. In the case In re: Constitutionality of the National Elections Commission Planned Conduct of the Voters Registration without the demarcation of constitutional electoral constituencies the Collaborating Political Parties (CPP) challenged the conduct of the voter registration exercise. They argued that because citizens are required to be registered in a constituency and to also vote in the said constituency, constituencies are required to be demarcated before voter registration takes place. Put simply, as citizens must vote where they are registered, they ought to clearly know their constituencies at the point of registration and not afterwards. This challenge was based principally on Article 80 (c)(d) and (e) of the Constitution which provides that:

c) Every Liberian citizen shall have the right to be registered in a constituency, and to vote in public elections only in the constituency where registered, either in person or by absentee ballot; provided that such citizen shall have the right to change his voting constituency as may be prescribed by the Legislature.

d) 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.

e) Immediately following a national census and before the next election, the Elections Commission shall reapportion the constituencies in accordance with 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.

In its decision, the Court drew a parallel with the cases In Re: The Petition for Declaratory Judgment on the Constitutionality of a Joint Resolution on the setting of an Electoral Threshold LRSC 43 (2010) and Liberty Party v. NEC in which it held that the National Elections Commission (NEC) could demarcate constituencies based on electoral threshold set by the Legislature. The Court reasoned that demarcation was required to take place because prerequisites such as a final census report and setting of thresholds by the Legislature had been met. In the case at bar, the Court opined that preconditions had not been met since the Liberia Institute for Statistics and Geo-Information Services (LISGIS), responsible for the conduct of national census,  had only submitted provisional census results to the Legislature, and since, the Legislature had set no threshold. The Court found no violation by NEC as its duty is not “self-executing” and depended on LISGIS and the Legislature performing their responsibilities. In other words, LISGIS and the Legislature, not NEC, are the proper violators. Remarking on this point, prominent Liberian jurist and Dean Emeritus of the Louis Arthur Grimes School of Law, Cllr. T. Negbalee Warner, has described the Court’s decision as “formalistic and not reflective of due regards to the significant constitutional issues raised”. He says:

This particular decision of the Court could be interpreted to excuse any administrative agency from performing a constitutional or statutory duty if a precondition to the performance of the agency has not happened irrespective of the cause or motivation for the nonperformance. It could also encourage the Legislature and other duty bearers to avoid doing what will trigger implementation of a legal requirement they do not wish to be implemented…In any case, the point is that having electoral constituencies not based on equal number of voters as much as practicable is illegal, and unconstitutional, irrespective of who is at fault. A constitutional court, as is the Supreme Court, may well have been expected by others to have used one of the previous decided cases to see how a remedy could have been fashioned to address the evident and continuing illegality. 

This author couldn’t agree more. In such cases bordering on fundamental democratic principles, the Court must not construct a by-pass to avoid addressing germane issues. It appears that such avoidance has featured in recent line of cases decided by the Court. In the cases Concerned Registered Voters v. Teahjay (2023) and Seimavula v. Mansaray (2023), the Court employed the doctrine of standing to avoid delving into the merits of the cases. This legal doctrine limits who may sue by requiring that persons suing to “establish a legally protectable interest and actual or imminent harm or injury to that interest which is traceable to a challenged act of the Legislature, governmental action or inaction” Citizens Solidarity Council v RL (2016) LRSC 20. The application of this doctrine in recent election-related cases leaves much to scrutiny. In the Teahjay case decided on August 31, 2023, registered voters of Sinoe County filed an objection to the nomination of Senator J. Milton Teahjay and prayed for his disqualification on grounds that he was found guilty of crimes of economic sabotage, criminal mischief, criminal conspiracy, misapplication of entrusted property, and violation of public procurement procedures. The Hearing Officer at the NEC dismissed the objection concluding that Teahjay’s right had been restored upon payment of the US$50,000 fine levied by the Court as evidenced by payment receipts and clearance issued by the Court. On appeal to NEC’s Board of Commissioners, the Board raised the issue of standing stating that a voter cannot challenge the nomination of a candidate. This finding was based on the 2023 General Elections Nomination and Registration Procedures issued  by NEC which provides that only a candidate, participating political party, coalition or alliance may challenge a person whose name appears on the 2023 provisional list of candidates. Hence, according to the said regulation, a voter is specifically excluded from objecting. On appeal, the Supreme Court agreed with the Board that the voters lacked standing since they do not fall in the category provided by NEC. The Court further opined that “in the absence of a communication from the Ministry of Justice directing NEC to do so in line with Section 3.23 of the New Elections Law”,  NEC cannot disqualify Teahjay from contesting the elections on grounds that he is a convict.

Two points are worth considering in the Teahjay case: i) subtle blame shifting to excuse a prohibitive act, and ii) the application of the doctrine of standing. On the first point, remember that in the 2023 constituency demarcation case cited above, the Supreme Court found no violation by NEC since LISGIS had the Legislature had not fulfil their duties. In the Teahjay case, the Court states that the Ministry of Justice ought to write a communication to NEC indicating Teahjay is a convict and to direct NEC to disqualify him before any disqualification can take place. In the interest of safeguarding our democracy, and since the  Court believes that certain preconditional functions lied with other entities, could the Court have gone further to cite these entities to explain why they were derelict in performance of their duties? Following their appearance, could the Court enter judgment  properly affecting those entities? Or, could the Court not have taken judicial notice of a judicial opinion? The author thinks so.

On the second point of standing, how registered voters of a particular county can be found to have no “legally protectable interest” regarding the qualification and integrity of who becomes their Senator but political parties can be deemed to have leaves much to ponder. The Court essentially agrees with the NEC that persons who are not members of political parties have no right to challenge candidates. This point is re-echoed in the Seimavula case decided on September 6, 2023. In the case, Seimavula, a registered voter of District #1 in Grand Cape mount County objected to the nomination of aspirant Bintu Mansaray on grounds that she had not attained the age of 25 years, is a registered voter in Sierra Leone, and that she illegally changed her name. On the issue of standing, the Hearing Officers granted the objection on grounds that the 2023 regulations conflicted with Section 5.9 of the Elections Law, which grants registered voters the right to challenge. The said decision was reversed by the Board of Commissioners of NEC on review. On appeal, the Supreme Court agreed with the Board in the following words:

We are in agreement with the Board of Commissioners that persons in the category of appellant, being only a registered voter, lack the capacity to challenge a candidate cleared by NEC and whose name appeared on the Provisional List.

For a country with a dark history of one-party rule, such laws essentially drives a wedge and establishes a class between politicians and political organizations on the one hand and voters on the other. Further, in our representative democracy system, Legislators do not represent political parties. They represent voters, districts, and counties while remaining free to associate with political parties. It is, therefore, strange that political parties can be deemed to have an interest in candidates’ qualifications but voters cannot be deemed to have the same. As an aside, our representative democracy system is what allows elected representatives of the people to jump political parties. Their loyalty is not to the parties but to their constituents.

Deciding cases on technicalities does little to help  nurse our democracy. In crucial moments, such positions must be carefully considered. While procedural requirements are laid down in the law, the Court ought to be more cautious when applying them would frustrate justice and fair play. The Court itself intermittently adopts this approach in a long line of cases. As far back as 1914, in the case Jantzen v Freeman LRSC 6; 2 LLR 167, the Court embraced “progressive judicial reform” noting:

This Court is not inclined to look favorably upon technical points, which do not go to the merits of a controversy. A court of last resort should deal with the principles underlying every issue brought before it.

This decision has been affirmed in a long of cases holding that  “mere technicalities should not be used to prevent the Court probing the merits of the case and ruling in the interest of justice.” Toe v. Frontpage Africa, LRSC 33 (2013); Liberia Electricity Corporation (LEC) v. Lewis & Greenfield 34 LLR 12. Even where the Court sought to maintain procedural requirements in cases such as those bordering on non-compliance with the appeal statute, it  still has found a way to touch the merits of the case in such cases. Here is how the Court ruled recently in International bank v. The Intestate Estate of Charles Henry et al (2021):

Issues relating to the sufficiency of the Respondent’s appeal bond are indeed germane, and a review of the said bond shows that it violates the principle espoused by the Supreme Court in the Case Reeves v. Quiah Brothers (2013); this certainly renders the bond defective and as such a ground for the dismissal of the appeal. However, this Court has expressed a strong preference for hearing cases on the merits and deciding them according to law and evidence rather than deciding them on motions to dismiss…the Motion to dismiss appeal is denied.

As seen above, the Court opted against dismissing the case on procedural grounds although it has long held that the appeal statute is mandatory and must be complied with. This author believes that the Court has a greater incentive to adopt similar approach in electoral matters as our democracy stands at stake. Further, this author thinks the Court’s failure in 2017 to define what level of fraud is “egregious” enough to be determinative of electoral outcomes is a question it will be forced to answer in these elections.

As we go to the polls , we cast our ballots knowing that the Supreme Court is key. Yet, as we sift through rulings of the Court, we can but hope that the High Priests and Priestesses of Justice midwife the electoral outcome on democratic principles such as participation, rule of law, free and fair elections, equality, transparency, and accountability.

Note: The views expressed herein are solely the author’s and does not necessarily reflect the views of institutions with which he affiliates.

About the Author

Gerald D. Yeakula, Sr. is a researcher and a licensed attorney based at the Center for Transparency and Accountability in Liberia (CENTAL). He is Co-founder of LibLaw and an Associate at the Heritage Partners and Associates, LLC. He holds a Master of Laws (LLM) degree in Human Rights and Democratization in Africa from the University of Pretoria, a Bachelor of Laws (LLB) degree (Cum Laude) from the Louis Arthur Grimes School of Law, University of Liberia, and a Bachelor of Economics (B.Sc.) degree from the University of Liberia.

[i] WD Tarplah ‘A Retrospective on His Honor Francis S. Korkpor, Sr.: Signals for Chief Justice Yuoh’ (2022) 11 <https://liblaw.org/wp-content/uploads/2022/10/A-Retrospective-Final1-1.pdf> last accessed October 8, 2023.

[ii] GD Yeakula, AD Miamen and R. Makor ‘State of Corruption Report’ (2021) 38 https://www.cental.org.lr/index.php/documents/reports/state-of-corruption-report/score-2021/viewdocument last accessed October 7, 2023.

[iii] In re: Constitutionality of Sections 16.1 and 16.2 of the Anti-Corruption Commission Act (2023)

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