Elections – cross border registration
Can section 4(3) of the Electoral Laws Act ‘legalise’ the illegal cross-border regidtrations?
On 27 February 2012, a press statement issued by Coalition for Justice and Accountability (COJA) was published in various newspapers in Sierra Leone. The press statement highlighted the illegality of the cross-border registrations that were taking place in some parts of Sierra Leone. (Photo: Mohamed Kunowah Kiellow, author)
On the same day, an opinion article titled SLPP VS NEC: ELECTORAL LAW SECTION 4(3) CAN RESOLVE CROSS-BORDER REGISTRATION DISPUTE was published in the Awareness Times. This article was written Sylvia Blyden.
As a legal adviser deployed to COJA by International Organization for Migration (IOM), The Netherlands, I was responsible for writing the press statement after a thorough research and a fact-finding trip to Kambia.
To some extent I agree with Sylvia Blyden on some of her arguments she put forward in that article. Truly I agree with her when she wrote that non-citizens, lunatics, prison convicts and convicted electoral offenders serving bans are not qualified to register and vote.
However, I partly disagree with Sylvia Blyden when she argued that “Dr Thorpe is right in one respect. No law prevents the registration of non-resident Sierra Leoneans.” She further argued that “Sierra Leoneans in Liberia, Guinea and elsewhere are fully qualified to be registered and any attempt to prevent them from being registered is a source for potential conflict.”
On the one hand, there is a law that prevents non-resident Sierra Leoneans from registering. That law is subsection 1 and 2 of Section 4. Subsection 1 of this section in conjunction with section 31 of the Constitution states that “every Sierra Leonean citizen of sound mind who has attained the age of eighteen and is ordinarily resident in a ward on the date specified for the publication of notices inviting for claims for registration has the right “to be registered as an elector in that ward and, when so registered, to vote in such ward at any election.” Subsection 2 of this section stipulates that “a person’s ordinary residence shall be determined by reference to all the facts of the case and in particular, by reference to the rules contained in the First Schedule.” This law therefore prevents non-resident Sierra Leoneans from registering. Dr. Christiana Thorpe was therefore wrong in that respect.
On the other hand Dr Blyden was partly right. By virtue of section 6, provisions may be made for the registration of Sierra Leoneans who are not resident in Sierra Leone. Such Sierra Leonean should either be a refugee in the Republic of Guinea and Liberia or any other lawfully established refugee camp. They should in any case satisfy some conditions further mentioned in the section. Moreover, NEC can discretionarily make provisions for the registration of non-resident Sierra Leoneans outside Sierra Leoneans.
Miss Blyden further argued that “the non-resident Sierra Leoneans streaming through the borders to be registered are exercising their constitutional rights and no-one should stop them.”
This argument is legally not correct. Like I argued above, subsections 1 and 2 of section 4 of the Electoral Laws Act prevent some Sierra Leoneans from registering if they do not meet the cumulative conditions mentioned therein. These are not “or-or” but “and-and” conditions. All conditions should be met before one qualifies to be registered. The conditions are Sierra Leonean citizenship, attainment of the age of 18 and an ordinary resident in a ward on the date specified for the publication of notices inviting for claims for registration in Sierra Leone. The Sierra Leoneans from Guinea and Liberia are not ordinary resident in Sierra Leone as proscribed by subsection 2 of section 4 and the First Schedule of the Electoral Laws Act of Sierra Leone.
According to Dr Blyden, NEC can creatively apply the powers conferred upon it in various sections of the Electoral Laws Act of 2002. She mentioned subsection 3 of section 4. She argued that the creative application of subsection 3 of section 4 can resolve the SLPP-NEC conflict. In the first place, the creative application of any law by an extended executive arm of the government without the intervention of a judge can lead to a “kangaroo interpretation” of the law, an arbitrary application of the law. It is always the citizens who will suffer abuse of power.
Section 4(3) stipulates that “without prejudice to subsections 1 and 2, the Electoral Commission may, by statutory instrument, specify places, other than the areas referred to in those subsections, for the purposes of registration, voting or transfer of votes of such electors as may be specified in such order.” ‘This means,’ according to Dr Blyden, ‘that the National Electoral Commission can have parliament endorse an immediate Statutory Instrument giving NEC the power to create special registration centers for non-resident Sierra Leoneans at all border points in Sierra Leone.’ ‘Similarly,’ she further argue that ‘Statutory Instrument can ensure such non-resident Sierra Leones who do not wish to travel to their places of origin(e.g.: Makeni, Segbwema or Freetown) can vote on election day but only for the presidency and not for Local Councillors and Constituency parliamentarians.’
Miss Sylvia Blyden did not mention all the wordings of the provision. She left out “without prejudice to subsections 1 and 2.” NEC cannot use this power which should be conferred on it by Parliament without giving due consideration to those subsections. These subsections should be held in high esteem.
When applying subsection 3, other important elements of the subsection should be thoroughly analyzed. One such important element that Miss Blyden did not explain to her readers is “OTHER THAN THE AREAS REFERRED TO IN THOSE SUBSECTIONS.” This element refers to the areas mentioned in subsections 1 and 2. These areas are the wards in Sierra Leone.
A prospective elector can only benefit from subsection 3 if he/she satisfies the conditions provided in subsections 1 and 2, in conjunction with the First Schedule of the Electoral laws of Sierra Leone. In this material case, the non-resident Sierra Leoneans do not satisfy the “ORDINARY RESIDENT” criterion. It is therefore legally flawed to argue that “all this would be perfectly legal under section 4(3) of the electoral laws of Sierra Leone…..”
Sylvia Blyden also wrote that “Clearly, the laws already cite an instance under which NEC can apply Section 4(3) to ensure a Sierra Leonean enjoys his right to be registered.” That instance, according to her, is section 6(2) of the Electoral Laws Act.
This section6 (2) accords the privilege to returnee refugees to be registered on their return to Sierra Leone. Owing to the fact that they are not ordinary resident in a ward on the date specified for the publication of notices inviting for claims for registration, NEC can apply section 4(3). However, this provision is not applicable to Sierra Leoneans under section 6(1). They have not returned to Sierra Leone as refugees. Almost all the non-resident Sierra Leoneans from Liberia and Guinea are permanently resident in those countries.
Once more, the rules governing registration of electors: Section 4(1) in conjunction with section 31 of the Constitution accords every Sierra Leonean citizen of sound mind who has attained the age of eighteen and is ordinarily resident in a ward on the date specified for the publication of notices inviting for claims for registration the entitlement “to be registered as an elector in that ward and, when so registered, to vote in such ward at any election. Nevertheless, if a Sierra Leonean citizen who has attained the of 18 years fails to satisfy the ‘ordinary resident’ criterion, section 6(1) gives the discretionary power to NEC to register Sierra Leonean refugees and non-resident Sierra Leoneans in Guinea and Liberia out Sierra Leone. The NEC may make use section 4(3) to register returnee refugees as stated in section 6(2) Sierra Leoneans who have permanently returned but are not ordinarily resident in a ward on the date specified for the publication of notices inviting for claims for registration. In the latter case there should be an order by statutory instrument.
In conclusion, Section 4(3) of the Electoral Laws Act of 2002 cannot resolve the illegality of the cross-border registrations.
by Mohamed Kunowah Kiellow, Amsterdam, The Netherlands
The author is Dutch-Sierra Leonean human rights lawyer currently working with Coalition for Justice and Accountability (COJA) as legal adviser.
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