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 The Hearing Officer's Final Ruling November 21st, 2017

THe Hearing Officer, Cllr. Muana Ville of the National Elections Commission (NEC), in his final ruling has denied and dismissed complaints of fraud and gross irregularities in the October 10, 2017 elections filed by the Liberty Party first complainant and the Unity Party. 

Please read below the full story.

Nuquay, Presidential and Vice Presidential

Candidates at the October 10, 2017 Elections,

And Unity Party……………………....INTERVENORS

                              And

                                                                                                                           

Charles Walker Brumskine and Harrison S.

Karnwea, Presidential and Vice Presidential

Candidates at the October 10, 2017 Elections

and all representative Candidates of the                 VIOLATION OF THE CONSTITUTION AND

Liberty Party, and the Liberty party, all of

LIBERIA……………………………..COMPLAINANTS            ELECTIONS LAW, FRAUDULENT ACTS AND GROSS                                                                                                                                                                                                                                                        

                                                                                                          IRREGULARITIES DURING THE OCTOBER 10, 2017                                                                                                         ELECTIONS

                                VERSUS

 

The National Elections Commission (NEC)

Represented by Hon. Jerome Korkoya,

Chairman of the City of Monrovia, Liberia

………………………….…………….….1st RESPONDENT            

 

THE HEARING OFFICER’S FINAL RULING

The Complainants, Charles Walker Brumskine, Harrison Karnwea and all Representative Candidates of the Liberty Party, and the Liberty Party on October 23 2017 filed with the Commission a post elections complaint under the authority of Article 83(c) of the 1986 Constitution of Liberia. The Complainants alleged that gross irregularities, including the late opening of polls, the changing of polling places, names of voters not listed in the FRR, Presiding Officer’s worksheets and the absence of Queue Controllers. The Complainants named several polling places where they claimed these alleged irregularities occurred. The Complainants also claimed that fraudulent acts occurred during the conduct of the October 10, 2017 elections and has named several precincts and polling places where they alleged these fraudulent acts occurred. The Complainants pray that the Commission nullifies the results of the October 10, 2017 elections and order a re-run. The Complainants asked the Commission to stay all activities leading to the Run-off.

Hearings into this case was slated for October 27, 2017 and when the parties appeared, the Complainants were presented by Cllr. Charles W. Brumskine, Cllr. Powo C. Hilton, Cllr. James Inns and Atty. Morris N. Kabah while the Respondent was presented by Cllr. Joseph N. Blidi, Cllr. F. Musa Dean and Cllr. C. Alexander Zoe.

The Complainants presented twelve witnesses who were all qualified and the first Complainant witness to take the stand was Musa Hassan Bility who testified to the following; that at 90% of the polling places voting did not start by mid-day; that there were no queue controllers; that in Grand Gedeh County, ballots were dumped and discovered by people; that in Grand Gedeh and Nimba Counties, polling staff were arrested with pre-marked ballots papers; that ballot papers did not have serial numbers; that there was no worksheet; that more people voted at polling places than the number of people registered; that at some polling places 850 ballot papers were brought; that there was 1109 votes giving to a candidate at a single polling place; that the voting card numbers of voters start with seven and end with seven; that during the election process some persons were caught with voting machine;  that 2000 ballot papers were reported at a particular place; that candidate Brumskine of the Liberty Party got 247 votes at a particular place but the number was changed to 9 votes and the balance was giving to another candidate; that there were areas where people were allowed to vote after polls were closed; that people voted in tubs and opened ballot boxes.

The Complainant second witness was Benjamin Sanvee the National Chairman of the Liberty Party, he provided the following; that polling centers opened late; that there were no queue controllers; that people could not fine their places to vote and they could not also fine their names in the registration roll; that there were no presiding officer worksheet; that there were no serial numbers on the ballots; that the record of count shows that Mr. Kwasi Johnson obtained zero vote and after a recount he got 26 votes; that candidate Brumskine had an amount of votes that were later taken and given to another candidate; that the ballot boxes carried in canoes and on the head of people were unaccompanied by security officer; that Mr. Amos Seeboe was arrested with voter ID machine making VR cards;  that the CDC candidate was giving 1109 votes at a particular polling center; that the NEC officer put 2550 ballot as the amount of ballots recorded at a particular polling center; that in Grand Gedeh County ballot papers were discovered thrown in the water.

The Complainant third witness was Foday Fahnbulleh a candidate on the Liberty Party’s ticket who testified to the following; that he registered in Volocawhen Town District #7 Bong County, that on Election Day, the ballot boxes were taken to Camp America instead of Volocawhen Town.

The Complainant fourth witness was Darling Clinton, a Liberty Party observer who provide that she saw the Presiding Officer broke the seals and put his hand in the ballot box.

Complainant fifth witness was Paul Wehyee who told the Hearing that he got report from the Nimba County tally center that show variances in the results; that at three polling places, the ballots were in excess of 178, 294 and 176; that 14 of such occurred in Nimba County.

The Complainant sixth witness was Debora Harris, a Liberty Party poll observer who told the Hearing that she registered to the precinct at which she was assigned but when she went to vote her name was not found in the FRR.

The Complainant seventh witness was Victoria Koffa who told the Hearing that she went to vote and visited from room 1 to 7 and they said her head was not in the book and so she did not vote. The Complainant eighth witness was Yah Golden, Chairlady of the Liberty Party at LAC Rubber Plantation. Witness Golden spoke to the following; that she went to vote but her name was not found in the FRR and the ES Doyen Moore told her to give LD150 before she can vote; that she gave the ES Moore the LD150 and her name was written in a black copy book and she voted.

The Complainant ninth witness was Mark he testified to the following; that he was at the SKD tally center when the ballots from PCS precinct code 30121 polling place #3 was brought for recounting; that before the counting the LP candidate had zero vote but after the recounting the LP candidate had 28 vote.

The Complainant tenth witness is Jurah Sanoe who provided the he saw people with voter cards that were denied the right to vote; that the voting process was disorganized because there were no queue controllers.

The Complainant eleventh witness is Jefferson Gbadyquille who told the Hearing that he went to the Suakoko Central High School from morning to 7:00 PM moving from one line to another and did not vote because his name was not found in the book. The Complainant twelfth witness is Omaru Kamara an LP poll observer in Lofa County who told the Hearing that during the counting at Yallahhun Town, District #2, that on two occasions ballots belonging to the LP candidate was giving to the UP candidate, that when he insisted and it was corrected; that an invalid ballot was giving to the UP candidate, and when he insisted, he was told  to take a complaint form.

At the closed of the Complainants evidence, the Complainants submitted for admission into evidence Hearing marked instrument C/1-C/23. The Complaints instrument were duly admitted into evidence.  

The Unity Party it’s Presidential and Vice Presidential candidates were made parties to the action filed by the Liberty Party and its candidates through the reversion of the Hearing Officer’s ruling denying them the right to intervene.

The Intervenor/Complainants in their complaint confirmed all of the allegations raised in Liberty Party’s complaint but pray that the Commission set a new date, other than November 7, 2017, for the re-run of the presidential election, but that the aforesaid re-run date be such that inauguration of a president-elect and vice president –elect will take place on January 15, 2018. After the granting of this intervention by the Board of Commissioners on their first appearance file before the Hearing Officer an Affidavit for the Subpoena of the following Individuals and materials to prove their complaint, copy of the final registration roll and addendum to the roll, copies of presiding officer work sheet and several others. The Hearing Officer entertained argument on this application and granted those that are logical, reasonable and practical and denied those that are either criminal or irrelevant to the Intervenor/Complainant’s case.

On the Intervenor/Complainants’ second appearance, they filed a Motion for Compulsory Joinder of all other Presidential candidates and political parties that participated in the 2017 Presidential and Representative Elections. This motion was argued and denied.

At the November 11th sitting of the Hearing, the Intervenor/Complainants made an opening statement summarizing their allegations after which they presented a list of sixteen witnesses to prove their case. Of the sixteen witnesses, the Intervenor/Complainants only presented witness Wilmot Paye who took the stand after qualification and provided the following testimonies; that long before the elections, the Commission had admitted to difficulties and challenges but informed the political parties that those were simple issues that could be addressed; that the NEC did not publish the Final Registration Roll; that he registered but when he went to vote, his name was not found in the FRR and the Staff wrote down his name and allow him to vote; that hundreds of his supporters were angry because they were denied their right to vote; that the Registration Roll that was presented to political parties were completely different from what NEC had.

On 13th November 2017, the Intervenor/Complainants had augmented their list of witnesses to 20 and of the twenty they presented 14 witnesses for qualification

The Intervenor/Complainant’s second witness was J. Cole Bangalu who testified to the following; that the provisional roll was not published; that when the final roll was released there were discrepancies like individual names not matching pictures; that the Chairman announced that those holding voter cards will vote even if their names were not found in the FRR; that the UP raised concern and a Commissioner at the NEC disagreed with the Chairman statement and the untimely publication of the FRR; that on September 23, 2017 seven political parties were given the FRR on a flash drive; that the NEC had a SMS system which the UP believe is an alteration of the FRR which amounts to fraud;  that group of people were disenfranchised of their right to vote; that voters voted more than once; that the ballots discovered in Grand Gedeh County were not know your candidate papers.

The Complainant/Intervenors’ third witness is Josiah Flomo Joekai, who informed the Hearing of the following: that occurrences were orchestrated by the leadership of Chairman Korkoya that led to inefficiency and incapacity at the Commission; that the Voter Registration process started in a disorderly manner; that the provisional registration roll was characterized by lots of omissions; that he was a candidate in the elections but his name was not found in the provisional voter roll; that Chairman Korkoya told the Liberian Senate that there were only 13,000 omissions in the provisional registration roll; that it was anti-democratic for Chairman Korkoya to announce that those with voter cards will vote even if their particulars were not found in the FRR; that he indicated that we were not going to have a credible voter roll; that he voted illegally on elections day because his name was not found in the FRR; that the SMS system by which his particulars were identified is also an illegal process; that culprits were apprehended processing illegal voter registration cards; that people who voted in the FRR identities were being merged with the wrong people; that separate voter roll was created that subordinated the FRR.

The Intervenor/Complainants’ fourth  witness was Ottos Saye Bliton from Grand Gedeh County who testified to the following; that the Town Chief daughter in Glay Town discovered ballot papers when she went to take bath in a bambo bathroom; that the ballots were the Presidential ballot papers with red strips and Representative ballots with green strips; that they were instructed by an NEC official to take a police officer with them on the scene; that the police officer took the ballot papers and reported them to the NEC local office; that he took photos and videos of the ballot papers.

The Intervenor/Complainants fifth witness was Youdy Bella from Grand Gedeh County, summary of his testimonies is here below; that he saw ballot papers being rooted from a bathroom in Glay Town; that the ballot papers were turned over to a police office called Weah who took the papers to the NEC Zwedru office; that the ballot papers were received by an NEC officer called Mr. Donald.

The Intervenor/Complainants sixth witness is a subpoena witness the Executive Director of the NEC who was called to present and testify to the used Presidential ballot paper, the used Representative ballot paper and the Know-Your-Candidate poster and the flash drive containing the FRR.

The witness presented the flash drive and confirmed that it is the flash drive that was distributed to political parties in September 2017. The witness presented the used Presidential ballot paper and confirmed that it has a red strip on the back. The witness presented the used Representative ballot paper and confirmed that it has a green strip on the back. The witness presented the ballot paper stub and testified that the serial number is found on the stub and not on the ballot itself. The witness also presented the ‘Know-Your-Candidate posters and confirmed that it was the poster used in the 2017 elections.

The Intervenor/Complainants seventh witness was Jeff Blibo a special witness who analyzed and testified to two flash drives as follows; that the flash drive that was  given to the Unity Party in September had less data than the one subpoena; that a total of 79 polling places were missing across 10 precinct not recorded on the previous drive and 31 precincts with one or more missing from the data that was given prior; that the missing polling places amount to 35,267 registered voters with 10 duplicated ID numbers assigned to voters; that the FRR is different from the online system and the flash drives that was given to him.

 The complainants eighth witness, Frances Johnson-Allison, the witness provided the below testimonies; that she heard of the irregularities and the fraud and was alarmed about the kinds of things that she heard; that we went to the October 10, 2017 polls without a Final Registration Roll; that the Final Registration Roll shows the number of registered voters; that the Final Registration Roll was not published;  that the Final Registration Roll is published by placing it at various precincts and polling places.

The Intervenor/Complainants ninth witness was David Menyongai, a former Commissioner of the NEC. The witness testified to the below testimonies that the provisional listing must be published at all registration centers while the final registration roll must be made available for inspection at the local offices of NEC. As to other matters, he could not remember since, he left the Commission 7 years ago.

The Intervenor/Complainants tenth witness was Dennis Saah Popay, a resident of Duazon, Margibi County. The witness provided as follows; that he went to vote at the Rock International and his name was not found in the FRR and his name was written on an addendum and allowed to vote.

The Intervenor/Complainants eleventh witness is Nou Kenneh a resident of Jacob Town District #2, Monserrado County. Witness Kenneh testify as follows;   that after he voted at the Muslim Solidarity Elementary and Junior High School, he came out and saw the people crying with their voter cards in their hands ‘we want vote’ ‘we want vote’ he took out his phone and took a photo; that Hon. Sekou Kenneh told him to go in the Community and fine out those who did not vote because their names were not in the FRR; that they went in the community and collected voter cards from people and some people refused to give their cards. The Intervenor/Complainants’ counsel thereafter presented 182 voter cards for identification, marking and admission into evidence. An objection to this application was sustained on ground that the witness did not establish any authority between him and the owners of the 182 voter cards. The Intervenor/Complainants rested with the production of evidence after the testimonies of witness Kenneh and presented for admission into evidence Hearing marked Instruments C/1 to C/22. The Intervenor/Complainant’s materials and documentary evidence were duly admitted into evidence.

The Defendant National Elections Commission took the witness and presented four witnesses for qualification and sequestration. The Defendant witnesses included C. A. Lamin Lighe, Joseph A. Yarsiah, Deddeh Buway-Pusah and Floyd Sayor. The first of Defendant witnesses to take the witness stand was C. A. Lamin Lighe, the Executive Director of the NEC. Witness Lighe testified to the following; that the elections were free, fair and transparent; that it is the first in our election history that the polling staff met the voters in the queue as early as 4:00 A. M. making it difficult for the queue controller to place voters in their proper queue to vote;  that there were challenges in the recruitment of competent  polling staff; that the Commission has earlier requested professional institutions to offer professionals to serve as polling staff but only one institution responded; that the staff were challenged in finding the names of voters on the FRR even though their names were on the FRR; that there were witnesses of the Complainant who testified that their names were not on the FRR but witness Lihge demonstrated inshowing witness Josiah Joekai and witness Wilmot Paye being on the FRR; that there is no addendum to the FRR but the procedure allow for addition to the FRR which was done in 2005, 2011, 2014 and 2017; that the ballot paper has a serial number on the stub; that at the Tokpa Polu Public School, the Presiding Officer erroneously wrote 1109 in favor of candidate on the CDC ticket, but the error was corrected and only 110 votes were processed in favor of the CDC.

The Defendant second and final witness was Joseph A. Yarsiah the Director of Political Affairs. Witness Yarsiah testified to the following; that all political Parties including the Complainants were informed of all major activities of the Commission through the IPCC meetings; that the political parties were informed of and taught how to use the SMS system and that Cole Bangalu phone number was used during the demonstration; that he informed the political parties of the preparation for the run-off; that the Unity Party and the Coalition for Democratic Change have agreed to go to run-off; that both the CDC and UP have asked and the Commission has accepted that two party observers be allowed in the polling place during the run-off; that the Commission disallowed the voting of party observer where they are assigned but not registered; that few polling places opened late in Sinoe County due to the overflowing of the river. Witness Yarsiah testified to difficulties and challenges poll workers faced in getting materials to certain polling places. The Witness demonstrated a video recording of polling workers when log has fallen on the road leading to a Precinct.

At the close of oral evidence, the Defendant also submitted for admission into evidence document testified to, marked D/1 –D/12 and confirmed. The Defendant documentary and material evidence were duly admitted in to evidence.

It is important that the Hearing Officer state the laws that govern this election contestation before making any determination on the evidence presented to him. The laws which the Hearing Officer determine to govern this proceeding are as follows:

  1. The burden of proof in an election contestation rests on the contestant. Thus, it is incumbent on the contestant to rebut the prima facie evidence made by the returns and certificate, and he is not relieved of that burden even where the proof connects the contestee with spoliation of poll books 26 Am Jur 2d, Election, Section 342;
  2. An issue of actual fraud is wholly unstained by evidence of mere irregularities unaccompanied by fraudulent intent, or by proof of fraudulent intent without action to carry such intent into force. 26 Am Jur 2d, Elections Section 342;
  3. Fraud includes the intentional employment of trick, deception of artifice designed to cheat or mislead another. Kontar v. Mouwaffak, 17 LLR 446; Monrovia Construction Company v. Wazami, 23 LLR 58;
  4. It is not sufficient to merely allege fraud as a basis for relieve, it must be established by proof. Massaquoi v. Massaquoi, 35LLR 508;
  5. The law forbids the proving of fraud by testimony of witnesses based on presumptions, hypothesis and deductions. Intrusco Corporation Osseily, 32 LLR 558.
  6. An election will not be invalidated by irregularities unless the irregularities materially affected the result of the election. Andrew v. Blackman, Supreme of the State of Louisiana, 59 SO 769.

Based on the evidence adduced orally, documentarily and demonstratively, the Hearing Officer has determined that the below single issue is determinative of the controversies raised in this complaint.

ISSUE: Has the Complainants provided evidence sufficient to prove irregularities     and fraud to warrant the re-run of the October 10, 2017 election?

The Complainants, all of whom participated in the October 10, 2017 election have raised several issues in their separate complaints that the elections were marked by irregularities and fraud, therefore the entire elections must be re-run. The first Complainant and the Intervenor are alleging that the Final Registration Roll used during the elections was not published according to Statute, and also that said document was altered by addition made to it during the elections. The first Complainant and the Intervenors also alleged that the ballot papers used during the elections had no serial number and that the Defendant had done so with the intent to cheat. The first Complainants and the Intervenors alleged further that on the day of voting several polling places opened late and that voting materials taken to some polling places were unaccompanied by security officer. Both the first Complainant and the Intervenors informed the Hearing Officer that ballot papers were discovered in Glay Town, Grand Gedeh County. The Intervenor/ Complainants have presented through a demonstration by one of it witnesses on two flash drives containing the Final Registration Roll that there were a total of 79 polling places missing across 10 precincts, and the missing polling places amounts to 35,267 registered voters. The first Complainant alleged that at Tokpa Polu Public School polling place #1, the Defendant gave candidate of the CDC total of 1109 votes far exceeding the total of registered voters at that center.

In rebutting the testimonies of the first Complainants and the Intervenor/Complainant’s witnesses, the Defendant first witness, C. A. Lamin Lighe presented that the ballot papers used during election had serial numbers on the stub of the ballot papers. The witness testified to and presented both the Presidential and Representative ballot papers having serial number on the ballot stub, these instrument were marked and admitted into evidence. The Defendant witness provided that contrary to the Complainant claim that the final registration roll was not published, the roll was indeed published and made available at all of its local offices for inspection by the public. That one of Intervenor/Complainants witnesses, Josiah Joekai admitted at the Hearing that the roll was published and made available to political parties. On the issues of the missing polling places claimed by the Complainants, witness Lighe informed the Hearing Officer that during the conversion of the data by the Intervenor/Complainants’ witness, data were lost and some were corrupted during the process. The Complainants claimed that at Tokpa Polu Public School, the CDC candidate was given 1109 votes in excess of the required registered voters at the center. On this claim, witness Lighe provided that it was an error on the part of the Presiding Officer, but that said error was corrected at the Tally Center and only 110 votes was processed in favor of the CDC candidate, they submitted the corrected record of count and it was admitted into evidence. The first Complainant and the Intervenor/Complainants said that ballot papers were discovered in Grand Gedeh County after the elections and admitted into evidence photograph and video recording. On this claim witness Lighe told the Hearing Officer that the posters were ‘Know Your Candidate posters that were altered and used in the process. Further to Intervenor/ Complainants’ claim that the Defendant is maintaining more than one voter roll and that the addition to the roll on the day of election amount to an alteration of the roll, in a violation of the law. On this allegation witness Lighe provided that the addition to the voter roll is a procedure that is allowed as provided for in the Polling and Counting Procedure Manual promulgated by the NEC. The Witness presented into evidence the Polling and Counting Manual for 2005, 2011 and 2017 all of which has provisions that allow polling staff, security officer who are not registered at a center but assigned there on elections day to vote and to be added on a space at the back of the final registration roll. And also that the Commission maintains only one roll that which was distributed to the political parties. As to the Complainant’s claim that polling places were change without notice to the voters, this claim was rebutted by the testimony of witness, that the public was given sufficient notice as to the change of any polling place during the election period.

The two witnesses of the Defendant testified to difficulties and challenges faced by the Defendant during the conduct of the October 10, 2017 elections. The witnesses informed the Hearing Officer that polling staff could not identify voters in the Final Registration Roll even though the voters were registered and had their particulars in the roll. This was established during the hearing when Complainant witnesses Wilmot Paye and Josiah Joekai who earlier testified that on the day of election, their particulars were not found in the FRR but were added and allowed to vote. The Defendant witness Lighe demonstrated the FRR for the centers where the witnesses registered and it was indeed established that the two witnesses though added to the roll yet their photos and other particulars where in the FRR. On the day of election, voters arrived at most polling places before the queue controller and arranged their own queue making it difficult to redirect the voters to their proper rooms. The Defendant witnesses testified to difficulties that impeded the timely opening of some of the polls, some due to the over flooding of rivers where the polling staff had to carry the materials in canoes and that some due to long distances were the polling staff having carry the materials  on their heads. The Hearing Officer is not convinced that these challenges and difficulties alluded to by the Defendant during the hearing of this complaint amount to fraud. Like the issue in Nimba County where the Complainants alleged  that a presiding Officer was found with pre-marked ballots, though it was not established that the ballots indeed entered the ballot box, the NEC quarantined and have re-run of the elections in that polling place.

The Hearing Officer have not seen from the records or the evidence presented by the first Complainant and the Intervenor/Complainants that fraud has occurred and that because of such fraud a determination of the true will of the 1.7 million voters who participated in the October 10, 2017 elections is impossible. The Complainants have the burden of establishing that, because of the fraud shown by them, the true result of the election was changed. The mandate of a successful challenge must prove that the irregularities changed the result of the election or resulted from fraud. Fraud is never presumed but must be proven by preponderance of evidence which the complainants have failed to do.

WHEREFORE AND IN VIEW OF ALL I HAVE SAID ABOVE, the National Elections Commission is mandated to take the necessary steps to correct all what they alluded to as difficulties and challenges before any future election.

The first Complainant and the Intervenor/Complainants having failed to prove allegations of irregularities and fraud, that would warrant the re-run of the October 10, 2017 elections, said complaints are hereby denied and dismissed

                                GIVEN UNDER MY HAND THIS 20TH DAY OF NOVEMBER

  1. 2017

  Signed ____________________________________­­­­­­­­_________

                   Muana S. Ville (Cllr.)

                   CHIEF DISPUTE HEARING OFFICER

                   DISPUTE HEARING OFFICE/ NEC



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