** Please visit our website: http://www.africanassociation.org **

From
http://www.frontpageafrica.com/RunScript.asp?page=&Article_ID=865&NWS=NWS&ap=NewsDetail.asp&p=ASP\~Pg0.asp


Mohamedu F. Jones on NEC’s Decision - Logic and Reason
are the Mother Lode of the Rule of Law - 12/17/2005
3:07:34 PM

By Mohamedu F. Jones
Contributing Writer

News Analysis

The decider of fact and law in a legal controversy
must apply logic to the facts and the law in a
carefully reasoned analysis to reach a conclusion that
forms a legitimate and valid judgment. The Hearing
Officer of the National Elections Commission, Cllr.
Joseph N. Blidi, in ruling on the complaint of the
Congress for Democratic Change that alleged “massive
fraud and irregularities” during the November 8, 2005
run-off elections in Liberia did just that in his
well-reasoned and correct decision. I am proud to be a
fellow alumnus with Cllr. Blidi of the Louis Arthur
Grimes School of Law of the University of Liberia.

Applying systematic and careful analysis to the facts
and the law, the NEC Hearing Officer appropriately
dismissed the Complaint filed by Ambassador George
Weah and the CDC.


Procedural Issues

Hearing Officer Blidi began his ruling by discussing
the procedural issues related to the Complaint
including motions for consolidation, continuance, and
the issuance of  subpoena deuces tecum, which he
properly disposed of in each case. The Hearing Officer
then granted CDC’s motion for continuance to contact
their witnesses. It is extremely unusual for a party
to appear at a hearing without at least some of their
witnesses, nonetheless, apparently in the interest of
justice (even though he was not legally required to)
Hearing Officer Blidi granted the motion.

When the Hearing resumed, two very significant issues
raised by CDC were whether the matter should be heard
by a Hearing Officer and whether Hearing Officer Blidi
should recuse himself. CDC may have made a strategic
legal error by not waiting until the election results
were certified, and thereby pose their Complaint as a
“post election” contest to be heard directly by the
full Commission. In any event, the Hearing Officer
basing his reasoning on the appropriate statutes
determined that the matter was properly before him.

On the question of recusal, the Hearing Officer ruled
that the recusal motion failed to state the legal
grounds on which he should recuse himself. In general
terms grounds for recusals which have to be proved
include prohibited relationships, interested party
standing, conflict of interests and similar
connections; CDC failed to assert, much more show any
of these grounds. The Hearing Officer correctly denied
the motion.


Witnesses

CDC presented 13 witnesses. The testimony of these
witnesses showed in general that they purported to
present evidence on matters not of their own certain
knowledge, spoke on issues in which their expertise
were not established, testified to what others told
them (“they say oh”), made statements that were
totally insupportable by the available evidence, and
made statements that were conclusory, which is an
assertion for which no supporting evidence was
spresented. Witnesses assumed facts not in the record,
or just made plain inflammatory statements. Several
CDC’s witness actually presented evidence that
contradicted or undermined the fundamentals of
Ambassador Weah’s and CDC’s allegations.

Ms. Sandra Worjloh conceded that she was not present
when the documents she testified to was prepared and
reconciled. Another witness testified that CDC’s
representatives signed the Tally Sheets, but “their
signatures were an attestation of what occurred at the
polling places; they were attesting to excess
ballots.” This witness statement carried no
credibility because the witness could not legally
present evidence as to why other persons signed those
documents. The question that is likely to come to the
mind of the trier of fact is why the signers were not
brought to testify. Witness Charles Sumo testified
that he was present throughout the process from
opening the ballot box, throughout the voting,
counting, and tallying processes, and that he agreed
with what appeared on the Tally Sheet. Mr. Andrew
Flomo testified that he did not witness what he
testified to,

Witness J. Abel Richards testified that he did not
follow the normal procedure when voting and obtained 3
ballots for evidence. He said he did not trust
international observers, but also very significantly,
that he failed to inform CDC’s representatives at the
polling center of his “evidence.” One wonders if he
did not trust his party’s representatives also.
Witness Sam McCrounada conceded on cross examination
that he was not testifying to matters in his personal
knowledge. Another witness testified that on November
8th, he was given 17 ballots pre-marked for Unity
Party, but he had not seen the person who gave them to
him since that day. Witness Ranny Gbatu, CDC Nimba
County Chairman testified that he visited all polling
stations in the County and received complaints from
only one.

The other CDC witnesses testified in a similar vein.
Evidence is defined in general as “every type of proof
legally presented at trial (allowed by the judge)
which is intended to convince the judge and/or jury of
alleged facts material to the case.” By usual legal
standards, much of what CDC’s witnesses testified to
was not “admissible evidence.”  Admissible evidence
must be relevant, material and must not violate the
rules against “hearsay.”  Much of the testimony
adduced at that Hearing appeared to be matters that
ordinarily would be declared inadmissible. The Hearing
Officer clearly allowed CDC’s lawyers great latitude,
even permitting witnesses to testify to matters that
would not usually be allowed, and would be stricken on
objections. It is likely that Hearing Officer Blidi,
exercising his discretion, permitted this so that
there could be no later claims that CDC’s witnesses
were not allowed to testify.

Finally, it is significant that CDC did not bring a
single witness who testified that they were denied
their constitutional right to vote on that day. One
can conclude that all Liberians who were eligible and
wanted to vote on November 8, 2005 did; that in itself
is a fundamental requirement of constitutional
democracy.

The Hearing Officer also carefully analyzed the
testimony of witnesses for the NEC and the testimony
of the Chairman of Unity Party, taking into account
the evidence presented by those witnesses.


Analysis

Hearing Officer Blidi laid out five issues and
proceeded to discuss each and apply the law to the
facts offered before the Hearing.

First the Hearing Officer reasoned that the allegation
that the Chairman of the National Elections Commission
had engaged in “campaigning” in responding to a
reporter’s question related to a nonsensical (my
characterization) claim by Ambassador Weah that he had
won the October 11 2005 election by 62% was not in
keeping with the applicable statute. He found that the
Chairman was exercising her role as spokesperson for
the Commission and that her action could not be
rationally considered campaigning as defined by law.
One could argue that the Chairman was intemperate in
her reaction (I take that position), but her statement
cannot be construed in any manner as a form of
campaigning against Ambassador Weah.  This is a
correct application of the meaning of campaigning by
the Hearing Officer.

Second Hearing Officer Blidi spoke to the issue of
whether CDC’s representatives at the polling places
were agents of the party and its standard bearer and
were therefore acting on their behalf when they signed
the Tally Sheets. In Liberia, signing the Tally Sheet
is an acknowledgement that the signer agrees with what
is stated on the Tally Sheet, not some post election
delusional assertion of “massive fraud” and “excess
ballots.”

The Hearing Officer showed that under the law, once
those CDC representatives signed the Tally Sheets,
they bound their party and Ambassador Weah to what was
stated on the Sheets. No ex post facto remonstrations
can change that. Ambassador Weah and CDC are legally
tied to the Tally Sheets and what is on them. The
Tally Sheets proved that the CDC representatives
actually concurred that the results on them were true
and correct on the day of the elections.

Third Cllr. Blidi discussed hearsay evidence. It was
totally useless evidence under the circumstances of
the Hearing. Statements by persons not in the Hearing
(but presented by witnesses in the Hearing) has no
probative value; it is not acceptable evidence, but is
second-hand evidence in which the witness is not
telling what he/she knows personally, but what others
have said to him/her. This form of evidence is not
sufficient evidence for showing “massive fraud and
irregularities”. Hearing Officer Blidi also reached
the correct decision on this issue.

Fourth Hearing Officer Blidi then addressed the
assertion that “massive fraud and irregularities”
could be extrapolated from “errors” in selected
district. If this were correct, no election anywhere
in the world would ever be final. There will always be
errors. Errors that are harmless (meaning they do not
affect the outcome) are not used in law to change
results.

The Hearing Officer correctly reasoned that
establishing election fraud cannot be predicated on
speculation or isolated irregularities. (I hold the
view that CDC’s witnesses failed to even prove
isolated irregularities.) CDC needed to show that the
will of the people of Liberia was not effected on
November 8, 2005. The evidence they presented in the
hearing did not meet that standard.

There was no proof presented at the hearing that there
was fraud in the casting or the counting of the
ballots to the level of “massive fraud and
irregularities.” The sheer fact that Ambassador Weah
says otherwise will not make it otherwise. The Hearing
Officer was correct in deciding that mere speculation
and extrapolation did not meet the standard and that
CDC failed to prove that any election changing fraud
occurred.

Finally, the Hearing Officer considered whether the
totality of the evidence presented by CDC was legally
sufficient to sustain the allegations. Clearly, it was
not. Hearing Officer Blidi considered that even if the
allegations made in his presence were true, 21 ballot
samples (when 800,000+ citizens voted), in less then
20 (of 3070 precincts) in 4 (of 15) counties,
concerning 6 of (18,000+) elections workers did not
establish “massive fraud and irregularities.” The
Hearing Officer, following Supreme Court guidelines,
ruled that fraud cannot be established by
“presumptions, hypothesis and deductions”; but rather
fraud has to be proven by credible facts.

The decision by the Hearing Officer dealt with
important legal and constitutional issues with logic
and reason. These are the cornerstone of law; without
them there can be no rule of law. Cllr. Blidi applied
the law justly, considering the facts before him and
reached the correct conclusion. Hearing Officer Blidi
joins the rest of the world in proclaiming again that
Mrs. Ellen Johnson-Sirleaf was properly and
legitimately elected President of Liberia.

The Supreme Court of Liberia will unanimously uphold
this decision when it considers this matter. Another
question though is will Ambassador Weah accept any
decision other than that he was the one elected
President. I cannot answer affirmatively or
negatively, but if he does not, then certainly neither
he nor his supporters can say in honesty  he believes
in the rule of law or the best interest of  Liberia.

----------------------------------------------------------------------------
To unsubscribe/subscribe or view archives of postings, visit:

        http://maelstrom.stjohns.edu/archives/aam.html

AAM Website:  http://www.africanassociation.org
----------------------------------------------------------------------------