Sylvia O Blyden & Others v The Chief Electoral Commissioner & Others (7 of 2018; SC CIV 6 of 2018) [2021] SLSC 3 (13 April 2021)

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SC/CIV. 6 AND 7/2018

IN THE SUPREME COURT OF SIERRA LEONE (CIVIL JURISDICTION)

IN THE MATTER OF A PETITION AGAINST THE ELECTION OF HIS EXCELLENCY JULIUS MAADA BIO AS PRESIDENT OF SIERRA LEONE AS PER THE DECLARATION OF THE RESULT OF THE PRESIDENTIAL RUN-OFF ELECTIONS OF MARCH 31ST 2018 BY THE CHIEF ELECTORAL COMMISSIONER AND NATIONAL RETURNING OFFICER, MR. MOHAMED N’FAH ALIE CONTEH IN TERMS OF SECTIONS 32(1), 33, 36, 42, 45, 49, 122, 124(1)(a) AND 127(1) (AMONG OTHERS) OF THE CONSTITUTION OF SIERRA LEONE ACT NO. 6 OF 1991; OF SECTIONS 51(3), 52(2), 55, 94, 161(1), 161(2) AND 168(2) (AMONG OTHERS) OF THE PUBLIC ELECTIONS ACT NO. 4 OF 2012 AND THE ELECTION PETITION RULES, STATUTORY INSTRUMENT NO. 7 OF 2007.

IN THE MATTER FURTHER OF SECTIONS 74, 85, 87, 91, 92, 93 AND 147 (AMONG OTHERS) OF THE PUBLIC ELECTIONS ACT NO. 4 OF 2012; ALSO OF THE MARCH 2018 GUIDE FOR POLLING & COUNTING STAFF ISSUED BY THE NATIONAL ELECTORAL COMMISSION; ALSO OF THE MARCH 2018 POLLING & COUNTING PROCEDURES ISSUED BY THE NATIONAL ELECTORAL COMMISSION AND THE ELECTIONS 2018 TALLYING AND RESULTS PROCEDURES ISSUED BY THE NATIONAL ELECTORAL COMMISSION.

IN THE MATTER STILL FURTHER MORE OF SECTION 55(1) OF THE PUBLIC ELECTIONS ACT NO.4 OF 20 12 F. ORDER 3, SUBRULES 2(1) &

(5) OF THE HIGH COURT RULES 2007, CONSTITUTIONAL INSTRUMENT NO. 8 OF 2007, OF RULES 98 OF THE SUPREME COURT RULES, PUBLIC NOTICE NO. 1 OF 1982; AND OF SUBRULES 5(4) (AMONG OTHERS) OF THE ELECTION PETITION RULES, STATUTORY INSTRUMENT NO. 7 OF 2007.

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BETWEEN: -

DR. SYLVIA OLAYINKA BLYDEN - 1ST PETITIONER/RESPONDENT 24 GARRISON STREET, FREETOWN AND THE CHIEF ELECTORAL COMMISSIONER - 1ST RESPONDENT NATIONAL ELECTORAL COMMISSION - 2ND RESPONDENT HIS EXCELLENCY JULIUS MAADA BIO - 3RD RESPONDENT/APPLICANT SIERRA LEONE PEOPLES PARTY (SLPP) - 4THRESPONDENT/APPLICANT

AND

IN THE MATTER OF PETITION AGAINST THE ELECTION OF HIS EXCELLENCY RTD. JULIUS MAADA BIO AS PRESIDENT OF SIERRA LEONE AS PER THE DECLARATION OF THE RESULT OF THE PRESIDENTIAL ELECTIONS OF 31ST MARCH 2018 BY THE CHIEF ELECTORAL COMMISSIONER AND NATIONAL RETURNING OFFICER, MR. MOHAMED N’FAH ALIE CONTEH IN TERMS OF SECTIONS 32(1), 33, 36, 38 42, 44, 45, 122(1), 122(3), 124(1)(A) AND 127(1) (AMONG OTHERS) CONSTITUTION OF SIERRA LEONE ACT NO. 6 OF 1991. AND IN THE MATTER OF SECTIONS 2, 7, 12, 13, 16, 19, 51(3), 53, 53(2), 55, 74, 85, 87, 90-94, 127, 161(1), 162 AND 168(2) OF THE PUBLIC ELECTIONS ACT NO. 4 OF 2012 AND ALSO OF THE QUICK REFERENCE GUIDE FOR POLLING AND COUNTING 2012; PRESIDENTIAL, PARLIAMENTARY AND LOCAL COUNCIL ISSUED BY THE NATIONAL ELECTORAL COMMISSION. AND IN THE MATTER STILL FURTHERMORE OF SECTIONS 45(5) OF THE PUBL IC ELECTIONS ACT NO. 4 OF 2012. AND IN THE MATTER STILL FUTHERMORE OF SECTION 14(1) OF THE POLITICAL PARTIES REGISTRATION ACT NO. 3 OF 2002; OF ORDER 3, SUB -RULES 2(1) & 5 OF THE HIGH COURT RULES 2007; CONSTITUTIONAL INSTRUMENT NO. 8 OF 2007; OF RULE 98 OF THE SUPREME COURT RULES AND OF RULES 5 SUB -RULE

(2) AND

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RULE 89 OF THE SUPREME COURT RULES STATUTORY INSTRUMENT NO. 1 OF

BETWEEN: -

1. DR. SAMURA MATTHEW WILSON KAMARA -2NDPETITIONER/RESPONDENT

2. HON. ALHAJI MINKAILU MANSARAY -3RDPETITIONER/RESPONDENT

3. DR. OSMAN FODAY YANSANEH -4TH PETITIONER/RESPONDENT

AND

MOHAMED N’FAH ALLIE CONTEH -1STRESPONDENT NATIONAL ELECTORAL COMMISSION -2NDRESPONDENT HIS EXCELLENCY JULIUS MAADA BIO -3rdRESPONDENT/APPLICANT

Coram

HON. JUSTICE DESMOND BABATUNDE EDWARDS CJ HON. JUSTICE NICHOLAS BROWNE-MARKE JSC HON. JUSTICE EKU ROBERTS JSC HON. JUSTICE ALUSINE SESAY JSC HON. IVAN ANSUMANA SESAY JA

REPRESENTATION: DR. SYLVIA OLAYINKA BLYDEN - IN PERSON FOR THE FIRST PETITIONER

COUNSEL: LANSANA DUMBUYA ESQ WITH HIM MR. F. MANSARAY FOR THE 2ND, 3RD & 4TH PETITIONERS

EMMANUEL SAFFA ABDULAI - FOR THE 1ST & 2ND RESPONDENTS

GEORGE BANDA-THOMAS ESQ WITH HIM MUSA MEWA, TUMA ADAMA JABBIE, MOHAMMED KENNEH ESQ, I. F. SAWANEH, L. M. BAYOH AND KENGEN WEH ESQ FOR THE 3RD & 4TH RESPONDENTS/ APPLICANTS

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RULING DELIVERED THIS 20TH DAY OF APRIL , 2021 BY JUSTICE DESMOND BABATUNDE EDWARDS CJ BACKGROUND/INTRODUCTION

The Election

1. On the 7 th & 31 st March 2018, Sierra Leone’s Presidential Election and the subsequent Presidential Run Off-Elections were respectively held in Sierra Leone. On the 13th of March 2018, the 2nd Respondent, the National Electoral Commission (NEC) (hereinafter referred to as NEC) pronounced the 7th March 2018 Presidential Elections Results with the SLPP’s Candidate, Brigadier Rtd. Julius Maada Bio polling 43.257% of the votes cast coming first, while the APC Candidate, Dr. Samura Mathew Wilson Kamara, came 2nd polling 42.676% of the votes cast.

2. As there were other candidates in this 7 th March 2018 Presidential Elections and none polled the required 55% of the votes cast to emerge victorious and President of Sierra Leone , the 1st Respondent as Chief Electoral Commissioner & National Returning Officer was compelled pursuant to Section 42(2)(f) of the Constitution of Sierra Leone Act No 6 of 1991 (hereinafter referred to as ‘the 1991Constitution ’) to set up the two candidates with the highest number of votes cast for a second round elections, the Presidential Run-Off Elections. The Presidential Run-off Elections were held on the 31st of March 2018 and on the 4th of April, 2018, the Results were declared. SLPP’s Candidate Brigadier Rtd . Julius Maada Bio emerged as the w inner with 1, 319,406 of the votes cast representing 51.81% of the votes Cast. He assumed Office as President of Sierra Leone immediately thereafter, after being sworn in as President

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the very day pursuant to Section 42(3) of the 1991 Constitution and Section 54(1) the Public Elections Act No 4 of 2012 (hereinafter referred to as ‘PEA No 4 of 2012’).

3. These Elections w ere according to the general view of Local and Interna tional observers considered and/ or held to be hugely peaceful and fre e from violence. The Petitioners’ view, nonetheless, was that these elections were marred with irregularities, malpractices, harassment, fraud and even corrupt practices by officials and agents of NEC, the 2nd Respondent herein, in collusion with a gents and o perators of His Excellency The President , the 3rd Respondent herein & his Party the SLPP , the 4th Respondent herein, which required those results to be overt urned with consequential and ancillary reliefs granted.

4. Consequent upon same , before 7 day s from the declarati on of the result on the 4th April 2018 expired, after which any action to challenge the validity of the Election Results would be statute barred 4 persons in the persons of Dr Sylvia Olayinka Blyden on the one hand and Dr Samura Mathew Wilson Kamara, Mr Minkailu Mansaray and Ambassador Dr Foday Yansaneh, on the other hand , challenged the validity of those Elections in 2 separate actions/ election petitions, to wit, SC6 / 2018 and SC 7 / 2018 respectively, with both actions filed on the same day i.e. on the 9th of April 2018.

The Petitions

5. On the 9th April, 2018, four (4) persons challenged the validity of those Presidential Elections by p etitioning to the Supreme Court . The first was the Petition from Dr Sylvia Olayinka Blyden intituled SC6/2018 while the 2nd is a petition by 3 persons in the persons of Dr Samura Wilson Mathew Kamara, Mr Minkailu Mansaray and Dr Foday Yansaneh (hereinafter referred to as Dr Samura Kamara & 2 others intituled SC7/ 2018. The gravamen of these petitions is detailed in their respective petitions. I would attempt to replicate them herein almost verbatim.

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1ST PETITIONER’S CASE

6. In the case of the first petitioner Dr Sylvia Blyden she stated as follows:

1. That immediately after the March 7th 2018 elections there was a huge outcry of votes rigging across the country and that all the major political parties demanded a recount of all disputed poll results while challenging the credibility of the elections. 221 polling stations were excluded, including where the votes cast exceeded the number of registered voters (including voters included on the supplementary list).

2. That on 19 th March 2018 , in her capacity as a member of the 4 -man APC Supervisory team , she attended a meeting with the Chief Electoral Commissioner and National returning officer as 1st Respondent, other members, NEC and representatives of 4th Respondent SLPP.

3. That at the meeting, it came out clearly that the March 7 th 2018 presidential elections had been conducted in complete contravention of Section 94 and Section 91 of the PEA No 4 of 2012.

4. That the 1st Respondent and 2nd Respondent confessed to have broken the Law in how presidential elections should be conducted but stated it was due to a matter of expediency in view of wh ich they decided to use a short -cut method instead of following the dictates of Sections 91, 93 and 94 of the Public Elections Act.

5. That consequent upon the above, she as voter now petitioner was very much alarmed and said such should not repeat during the Run-off elections.

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6. That she told 1st and 2nd Respondents that by breaching Sections 91, 93 and 94 of the Public Elections Act, they had exposed the integrity of the transfer of the results to possible hacking by Information Technology criminals.

7. That she also brought to the attention of the 1 st Respondent and the 2nd Respondent that the numbers for many of the results published on the website of the 2nd Respondent, just did not add up.

8. That on Friday, March 23rd 2018, the 1st Respondent and 2nd Respondent invited the APC and the SLPP alongside the entire Diplomatic and Consular Corp plus United Nations officials to witness a demonstration of their tallying systems.

9. That at that meeting in the presence of Diplomats and the Press, she, on behalf of the APC brought out a worrying discovery that Voter Register by Polling Centres which were published on the website of NEC the 2nd Respondent by the 1st Respondent, were at variance with another unknown set of Voter Register by Polling Centres which 1st Respondent and 2nd Respondent were using.

10. That when the NEC Website Voter Register was used to calculate around issues of over -voting and cancellations, the APC’s Samura Kamara automatically became the lead candidate of the First Rounds but when the other unknown Voter Register was used, the SLPP’s Julius Maada Bio turned into the lead candidate.

11. That the 1st Respondent publicly accepted the error and confirmed that he used the unknown Voter Register.

12. This clearly was why 1st Defendant had placed SLPP’s Julius Maada Bio as the first-place candidate for the First Round.

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13. That the 1st Respondent, the Chief Electoral Commissioner publicly promised to investigate and report back to the APC as to what was the reason for the variance given the fact that when one set of Voter Register is used, it changes the results significantly over when the other unknown Voter Register is used.

14. That at the time of filing this Petition, despite several reminders in writing and also through press releases, there has been no explanation from 1 st Respondent as to why there were two different sets of numbers of voters on those Voter registers.

15. That rather, yet another Voter register was again issued to political parties on the eve of the Run -off Elections; now giving three (3) different sets of spreads of voters per polling station. Three different Voter Registers for the same presidential election.

16. The Run-off election was scheduled for 27 th March 2018, but legal battles in court prevented that from happening. The elections finally were held on the 31st March 2018. After elections were closed on Election Day, 31st March 2018, the Respondents started counting the ballots in the presence of Party agents. Some APC Party agents deployed in the south-east of the country reported that they were violently intimidated and so had to leave without waiting for counting to conclude. Others reported widespread cases of over -voting in hundreds of polling stations in the south -east when using the third version of the Voter Register supplied to APC on March 30th, 2018.

17. That on the 2 nd April 2018, the APC sent petitions to the Res pondents for a recount of the polling stations where over voting have been reported. Although Respondents acknowledged receipt of the petitions, and assured APC Party that

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the complaints will be looked into, the issues raised in the petitions were never addressed.

18. That on the 4th April 2018, the 1st Respondent went ahead, without full and frank disclosure of reasons behind the variance in Voter Registers neither assurances concerning over-voting raised by APC, to declare Julius Maada Bio as Winner of the Presidential Elections; contrary to the Public Elections Act of 2012.

19. That the influence of foreigners, notably former African Heads of States in persons of H.E. DR. Goodluck Jonathan of Nigeria and H.E. DR. John Mahama of Ghana, strengthened the resolve of 1 st Respondent, 2 nd Respondent, 3rd Respondent and 4th Respondent to flout the Laws of Sierra Leone, primarily Sections 91, 93 and 94 of the Public Elections Act of 2012.

20. That as a result of refusing t o go by the PEA No 2012 which called for an organised District-Level tallying, many mistakes and other deliberate rigging actions happened in the tallying process thus skewing the results against APC.

21. That as a further result of 1st Defendant and 2nd Defendant refusing to effectively use their announced Parallel Tallying System with Microsoft Excel software during District-Level tallying, the 1st Respondent and 2nd Respondent connived with 3 rd Respondent and 4 th Respondent to cheat the APC and the APC candidate.

22. That as an even further result of insisting on using the specialized TALLY 2018 software, a lot of cheating of the APC candidate happened by the computer system.

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23. That for example, in Polling Centre 10157; Polling Station Number 01 in Port Loko District, she discovered at the Port Loko tallying centre that the suspicious TALLY 2018 software had cheated the APC candidate, Samura Kamara whose votes were automatically slashed from 279 votes to 223 votes whilst the results of the SLPP candidate, Julius Bio was automatically increased from 4 votes to 9 votes.

24. That overall, the 1 st Respondent was partial against the APC in the conduct of the said First Round and also Ru n-offs of the Presidential Elections which he systematically planned and executed in favour of the 3 rd & 4th Respondents to the detriment of the APC.

25. That since the Public Elections Act was created by Section 44 of the Constitution of Sierra Leone Act No 6 of 1991, the breach of the Public Elections Act whilst conducting the Presidential Election was and is therefore unconstitutional.

She prayed for the following reliefs:

1. A DECLARATION that the conduct of the March 7 th, 2018 and March 31 st, 2018 Presidential Elections and Presidential Run-off Elections respectively, were in breach of several mandatory dictates of the Public Elections Act No. 4 of 2012.

2. A DECLARATION that the conduct of the March 7 th, 2018 and March 31 st, 2018 Presidential Elections were conducted amidst intimidation, violence, impropriety, malpractices and several irregularities thus making them not to be free and fair.

3. A DECLARATION that the election of Julius Maada Bio, the SLPP candidate was therefore not valid and that he was not duly elected as President of the Republic of Sierra Leone.

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4. That this Honourable Court directs another Presidential Election to be held within 90 days from the date of the judgement and Order.

THE CASE OF DR SAMURA KAMARA & OTHERS THE 2ND 3RD AND 4TH PETITIONERS

7. In the case of the 2 nd, 3rd and 4th petitioners the content of their petition stated as follows:

1. That the conduct of the 31 st March, 2018 Presidential Run-off Elections was improper and fraught with irregularities.

2. That they have annexed to their petition the following documents which in their opinion, might assist this Honourable Court in resolving the issues calling for determination herein: - i. Copies of Press Statements from the All Peoples Congress (APC) complaining incidences of electoral malpractices and irregularities. ii. Copies of Letters written by the APC and addressed to NEC complaining incidences of electoral malpractices and irregularities. iii. A copy of a List of all Polling Centres and the grand total of Registered voters within that Centre. iv. List of 221 Polling Stations excluded in final tally of the 7th March, 2018 Presidential elections because the votes cast exceeded the number of registered voters. v. Copy of the final results of the 7th March, 2018, Presidential elections. vi. A copy of a tabulated breakdown of 400 Polling Stations evidencing excess number of valid votes more than Registered Voters and the percentage of such excess over -voting of the Presidential elections of 7th March, 2018.