LEGAL LINK- Letter requesting NEC to show the extant law that supports their cancellation of the entire Parliamentary re-run elections held on 24th August 2019 in Constituency 110

Justice | Law | Rights

LEGAL LINK

+23279167457 | +23277336904

89 Fort Street

Freetown | Sierra Leone

26th August, 2019

The Chief Electoral Commissioner & National Returning Officer

National Electoral Commission

OAU Drive

Tower Hill

Freetown

26th August 2019

Dear Sir,

Letter requesting NEC to show the extant law that supports their cancellation of the entire Parliamentary re-run elections held on 24th August 2019 in Constituency 110

It is out of a deep sense of cosmic responsibility and moral rectitude that Christian Lawyers Centre (hereinafter referred to as LEGAL LINK) has decided to write you this open letter.

At a time when majority of the country’s pressure groups and civil society organizations have gone reticent over such travesty of justice, we at LEGAL LINK feel obligated to stand tall and be the voice of conscience and mouth piece of the nation over this all important subject.

We are in receipt of your Press Statement dated 25th August 2019 in which you cancelled the entire re-run Parliamentary election in Constituency 110 held on the 24th of August 2019.

According to your Press Statement, this action was taken by the National Electoral Commission (NEC) because violence erupted during the course of the polls at the Sarah Modern Preparatory school polling centre which led to the destruction of ten ballot boxes and other electoral materials.

Consequently, in the opinion of NEC, this unfortunate incident seriously undermines the integrity and credibility of the electoral process for which a cancellation of the entire Parliamentary election was necessary.

But without prejudice to your above stated reasons that necessitated your actions, As a legal advocacy group that prides itself in legal education and reforms, we have taken the pains to search out all the legal references cited by you in your Press Statement of 25th August 2019 and also other governing laws on elections at the international, regional and domestic levels; and we make bold to say that there is no clear or expressed provision in any legal framework be it at the international, regional or domestic level that supports your action to cancel an entire Parliamentary election.

Against this backdrop, LEGAL LINK feels compelled to reach out to you and afford you a second chance to make clear to the nation which legal framework or section thereof that was invoked by you in arriving at your cancellation decision.

As we await your reply and clarification, let us seize this opportunity to bring to your kind attention and by extension the general public some basic awareness on the electoral laws governing the conduct of elections in Sierra Leone since education seems to be vital in all of what has happened.

We shall start with the legal frameworks at the International level, regional level and then conclude with the ones at the National level albeit to showcase to you that you have indeed acted ultra vires (beyond the powers conferred on you by law).

AT THE INTERNATIONAL LEVEL

The following instruments bear and touch on elections at the International level.

The Universal Declaration of Human Rights

The International Covenant on Civil and Political Rights

International IDEA Electoral Standards

Guidelines for reviewing the legal frameworks of elections

AT THE REGIONAL LEVEL

The following legal instruments bear and touch on elections within the African Continent.

The Africa Charter on Human and Peoples’ Rights

The African Union Declaration on the Principles Governing Democratic Elections

The African Charter on Democracy, Elections and Governance

The Principles for Election Management, Monitoring and Observation (PEMMO).

AT THE DOMESTIC LEVEL

There are a plethora of legal, institutional and policy frameworks that have been established at the domestic level for the smooth and efficient conduct of public elections in Sierra Leone. These frameworks include:

The 1991 Constitution of Sierra Leone

The Constitution of Sierra Leone Amendment Act of 2001

The Electoral Laws Act of 2002

The National Electoral Commission Act of 2002

The Public Elections Act of 2012

The Political Parties Act of 2002

The Local Government Act of 2004

The Election Petition Rules of 2007

The National Civil Registration Act of 2016

The Chieftaincy Act of 2007

Wards (Boundary Delimitation) Regulations, 2008

INSTITUTIONAL FRAMEWORKS

The relevant institutional frameworks set up for the effective administration and regulation of elections in Sierra Leone includes the following:

National Electoral Commission (NEC)

The Supreme Court

The High Court

The Election Offences Court

The Political Parties Registration Commission The Sierra Leone Police

POLICY FRAMEWORK

The NEC Disability Policy of 2015

A cursory look at the above normative frameworks reveals that, it is unarguably true that a comprehensive legal framework on elections exists for the efficient and effective conduct of public elections in Sierra Leone.

But notwithstanding however, there is no express provision stated in all of the above legal and policy frameworks that gives your institution (NEC) the authority, right or power to cancel an entire election.

LEGAL LINK strongly avers that such decision falls exclusively within the jurisdiction of the High Court of Sierra Leone as provided under sections 146 and 147 of the Public Elections Act of 2012 respectively.

Section 146 states that:

“If the High Court determines that a candidate returned as elected was not duly elected and that the election was void…..”

Section 147 dictates that:

“Where in an election petition or in a prosecution for an election offence under this Act, it is shown that the offence committed in referenced to the election for the purpose of promoting or procuring the election of a person has so extensively prevailed that it may be reasonably supposed to have affected the results, his election, if he has been elected shall be declared void by the Court in addition to any other penalty that may be imposed by the Court.”

In the above cited sections of the law, it is clear that it is the High Court and not NEC that has the exclusive power and authority to void or cancel an entire election.

At the very least, the farthest NEC can go in terms of cancellation of an election is limited only to a polling station where over voting has occurred.

This is so stated in section 87 of the Public Elections Act 2012:

“Where the votes cast at an election at a polling station exceeds the number of registered voters in that polling station, the result for the election of that polling station shall be declared null and void by NEC and another election may be conducted at a date to be fixed by the Commission, where the result at the polling station may affect the overall result in the electoral area, in the case of Parliamentary or Local Council Elections.”

From the above cited provision, it stands to reason that the only power granted by law to NEC in relation to cancellation of elections concerns only a polling station where over-voting has occurred.

The operative word under section 87 of the Act is POLLING STATION and not the entire election as stated in your Press Statement. It is vital therefore that we emphasize this to you as you seemed to have conflicted between the two. YOUR POWERS OF CANCELLATION STOPS AT A POLLING STATION. PERIOD!. NO MORE, NO LESS.

As a matter of fact also, since all of your cited references in your press statement do not legally support your cancellation of the Parliamentary re-run election in Constituency 110, your act therefore amounts to a clear usurpation of the powers of the High Court and by extension a travesty of justice.

Mr Electoral Commissioner, all perhaps that was required of you to have done in the given circumstances was to call the results, declare the winner but state the number of affected polling stations not included in the overall results so as to afford the losers an opportunity to file a petition to the High Court for a cancellation of the entire election and the ordering of a re-run.

OR Better still, you could have equally called for a re-run on only those affected polling stations while the results for those areas that were never affected by the violence remains valid.

The above options in our opinion could have been apt and prudent enough to vitiate the Commission from liability and violation of voters rights as compared to your unwise decision of abrogating to yourselves powers that were never given to you in the first place by law.

In sum, while we await your response, let us also bring to your urgent attention that it will amount to a complete waste of tax payers money if your decision is not reversed within the shortest possible time. The conduct of elections, no doubt, requires not only huge amounts of money, time and energy but much more a higher degree of fairness, impartiality and integrity by the referee conducting the elections. Any deviation of the above criteria would be deemed as an electoral infraction.

We therefore urge you to think on all of what we have stated in this letter and do the right thing for the sake of transparency, justice, fairness and the peace of our motherland.

If you refused to reverse your unjust and illegal decision, you will not only have failed the nation in their expectations of you but will also be referenced by history to have set the most dangerous precedent on elections in Sierra Leone for which posterity will certainly hold you to account.

Finally, and in the interest of transparency and accountability, please do not also forget to mention in your reply the actual winner of the Parliamentary re-run elections of 24th August 2019 since you already know the difference in result between the first and second contestants.

Thanks for your understanding and cooperation. Please accept the assurances of our highest regards.

Looking forward to hearing from you soonest.

Yours Faithfully,

Rashid Dumbuya Esq

Executive Director

LEGAL LINK

CC:

The Attorney General & Minister of Justice

Inspector General of Police

The Chief Justice

The Speaker of the House of Parliament

PPRC