Teiwaki v Tenieu [1991] KIHC 1; HCCC 25.91 (14 November 1991)

IN THE HIGH COURT OF KIRIBATI
HCCC No. 25 of 1991

BETWEEN:

TUARIRAKE TEIWAKI
KORAUBARA TETABEA
BORERE YEE-ON
Petitioners

AND:

TEAIWA TENIEU
Respondent

(BEFORE THE HON F MUHAMMAD C.J)

Mr Teiwaki for Petitioners
Mr Wijesekera for Respondent

JUDGMENT

There was a general election held on 8 May 1991, in Kiribati, for members of Maneaba ni Maungatabu and where the election on that day was inconclusive a second round of the election was held on 16 May in accordance with the Electoral Laws.

The Petitioners and the Respondent were candidates for the constituency of TabNorth on 8 May and on 16 May. Initially there were fifteen candidates but majority of them were eliminated in the first round and the parties to this petition and one other competed in the second round. At the end the Respondent and the other candidate were declared successful and the petitioners all lost, though gaining respectable number of votes each.

The petitioners allege that the respondent was guilty of corrupt practices in the election in that:-

(a) "In (on) or about the 3rd day of April 1991; more than a month before the election, the respondent went uninvited to the Island Councillors for the electoral district of Tabiteuea North at their meeting at Utiroa Village, campaigning for the election and thereat corruptly gave 26 sticks of tobacco for the purpose of corruptly influencing the Island Councillors to vote for him during the election". (Para 4 of the Petition).

(b) "In (on) or about the 22nd day of April 1991, about 16 days before the election, the respondent went, uninvited, to the people of Tekabwibwi Village at their maneaba, campaigning for the election and thereat corruptly gave a block of tobacco to the villagers present for the purpose of corruptly influencing those people to vote for him during the election". (Para 5 of the Petition).

(c) "In (on) or about the 30th day of April 1991; eight days before the election the respondent went uninvited, during the course of his campaign, to the people of Tauma Village at their maneaba and thereat corruptly gave a block of tobacco to the villagers for the purpose of corruptly influencing those people to vote for him during the election". (Para 6 of the Petition).

(d) "On or about the 5th day of May 1991, three days before the election, the respondent went uninvited to the Youth (young men and women) of Tanaeang Village at their soccer field, during the course of his campaign, at (sic) thereat corruptly offered by implication that he would supply them with a soccer ball if he was elected member of Maneaba ni Maungatabu for Tabiteuea North. The offer was made to these youths for the purpose of corruptly influencing them to vote for him during the election". (Para 7 of the Petition).

(e) "On the 8th day of May 1991, the respondent corruptly hired a truck transporting voters from their respective houses to the polling stations and back again to their houses in every village for the purpose of corruptly influencing the people to vote for him during the election". (Para 8 of the Petition).

(f) "In (on) or about the 13th day of May 1991, three days before the by-election, the respondent corruptly gave a block of tobacco to one old man to pass it to the people of Terikiai Village at their maneaba for the purpose of corruptly influencing the people of Terikiai Village to vote for him during the by-election". (Para 13 of the Petition).

(g) "On the 16th day of May 1991, during the by-election the respondent corruptly hired a truck transporting voters in every village from their respective houses to the polling stations and vice versa for the purpose of corruptly influencing the people to vote for him during the election". (Para 14 of the Petition).

The petitioners ask the Court to declare the election of the respondent void and other related relief.

The respondent in his "Defence" denied paragraphs 4, 5, 6, 7, 8, 13, 14 and 16 of the petition that is to say all the above allegations and the prayers of the petitioners in paragraph 16. Then without making any reference to the allegations made in the petition he set out to admit each and every allegation albeit with qualifications. I appreciate no blame can be attached to the respondent personally and petitioners having taken no steps to have the defence struck out I shall relate the averments contained in paragraphs 4 to 10 to appropriate allegations in the petition. Paragraph 11 asserts an argument in Law and is therefore not subject matter for pleadings. Paragraph 12 asserts that:- "In any event the acts complained of did not affect the result of the election". I shall deal with that point in due course.

Going through the defence I think it is fair to say that the respondent does not deny that the events alleged in the petition did take place but does deny that the purpose of giving tobacco or conveying voters to polling stations and back to their homes was to corruptly influence those people to vote for him. However he denies the allegation in (d) above that he made an implicit promise that he would supply a soccer ball to the youth if he were to win the election.

Several affidavits were filed by both sides but the questions of whether the respondent had given tobacco as gift and whether it was to influence the voters remained unresolved. Oral evidence was called, two petitioners and seven other witnesses giving evidence for the petitioners and respondent and four others giving evidence for the defence. I propose to refer to the evidence in general terms only since the main allegations are not in issue. The only factual issue is the promise of a soccer ball. Mr Yee-On says it was a deliberate statement made by the respondent at the end of the proceedings with words implying that if he, the respondent, won the election a ball will drop from the plane. The respondent's version is not a denial of the words used but rather that it was a joke made as a result of another joke by one of the youth present. In a crowd of people it is quite possible that a statement made by a youth was not heard by Mr Yee-On but was heard by the respondent who might have made a reply by way of a joke. As it happened no soccer ball was ever given and it is quite possible in the circumstances that what the respondent said was misunderstood by some of the audience. I therefore find that the statement was not intended to influence the voters to vote for the respondents.

As regards the other allegations and their acceptance by the respondent that tobacco was given on these occasions the respondent claims that he was obliged by custom to give 'mweaka'. There has been reluctance on part of the respondent and indeed his witnesses to associate the word 'gift' with 'mweaka', they have failed to ascribe any other adjective to it in place of gift but insist it is not a gift.

Mr Teiwaki has referred to Gilbertese-English dictionary originally compiled in French by Father E Sabatier, and translated into English by Sister Oliva of the Catholic Mission Tarawa, published in 1971. 'Mweaka' according to this dictionary means "A gift presented to person visited after long absence, to a new host, formally to a spirit of dwelling or country visited, v, to make an offering". A great deal of interesting evidence has been given on the subject and I believe that mweaka is a customary gift, that it has been a recognised Kiribati custom and has existed from times immemorial. The recognised purpose of the gift is what the dictionary says and is akin to a religious ritual. It is supposed to bring blessings on to the giver of the gift and is gratefully received by the donee. I have no doubt that over the years the term 'mweaka' has come to be abused. However it is relevant in this case to show the intention of the respondent, is he using the term 'mweaka' as a convenience to disguise a gift for obtaining a favourable response from the receivers? or is he performing his customary duty?

I find some analogy between mweaka and a charitable gift. The position in England is described in Halsbury's Law of England Vol. 15 at Para 774 "Charitable gifts":- thus "The distribution of charitable gifts to voters had always been allowed. On the other hand what are called charitable gifts may be merely a specious and subtle form of bribery ..... The imminence of an election is an important factor to be taken into consideration in deciding whether a particular act of charity amounts to bribery".

There is conflicting evidence before me whether the respondent was expected to give such gift or not. I ask the question rather differently, could in the circumstances of the case his gifts amount to bribery or not? According to his own evidence the respondent who is domiciled on TabNorth has been going to that island every two years but never before he presented his fellow islanders with any gifts. None of the other fourteen candidates gave any gift to the voters. The timing of the giving of these gifts was such that it cannot be dissociated from electioneering. Indeed it is clear from the evidence that giving of these gifts was part of the respondent's election campaign.

It would be against the human logic to think that such gifts were not intended to win favour with the voters or that it did not have that effect. Some gifts would amount to bribery whenever given providing they are given to win the votes but in my view every gift given in the middle of the election campaign is very likely to amount to bribery and in my judgment all the gifts listed in the petition amount to bribery within the meaning of Section 19 of Elections Ordinance, CAP 29B

I now deal with the incidents of respondent supplying transport for the conveyance of voters. The respondent had averred in his pleadings that transport supplied was for disabled voters but upon the evidence it is clear that that was not true and transport was run indiscriminately by the respondent who went throughout his constituency inviting voters and riding with them in the back of the truck both on 8th and 16th May 1991.

I am disturbed by a letter produced to me by the Chief Electoral Officer who had sought advice from the Attorney General and the advice was tendered by a State Advocate to the effect that providing transport was legitimate. She based her advice on the position in England and Wales. I am bound to say that the English position was misconceived by her and it did not apply to Kiribati anyway.

In England the provision of transport on hire in itself is an illegal act and both the provider and hirer are guilty of illegal hiring and the latter if he is a candidate, is guilty of illegal practice (See S89 for restrictions on conveyance of voters) and S.153(2) for illegal payment etc.) of the Representation of the People Act 1949). There are exceptions to those restrictions (See S.90 of PRA 1949) but none of those exceptions apply in this case.

If the respondent was misled by such advice then I feel sorry for him but I find that conveyance by hire of transport to voters as he did was an illegal practice contrary to section 19 of the Election Ordinance CAP 29B.

Kiribati as a country is at a stage of development where there is very little money to go around and smallest amount of gift means a great deal. Generally speaking polling stations are within a walking distance and no transport is necessary. Should it be felt that such transport is necessary then either the government should supply it or Laws and Regulations be made for its provision. I feel detailed provisions should be approved by Parliament for the whole conduct of elections and the candidates. Parliament should decide whether it is desirable to authorize the use of customary gifts such as mweaka. Perhaps some limit should be placed on election expenses a candidate can incur. The purpose of the legislation should be to see that election is fair. Representation of the People Act to which I have referred to has 175 sections and our Act CAP 29B has only 40 sections, yet our parliamentary system follows that of British system. Therefore there is room and indeed need for improvement of our written law in this field.

I now revert to the assertion of the respondent that his conduct did not affect the result of the election. I cannot accept that. I find that the whole purpose of giving the gifts and providing of transport was to influence the result of the elections, it was likely to so influence the voters and it did do so.

In view of the aforesaid I have no hesitation in declaring:

(a) the election of the respondent void

(b) As I have already indicated the illegal practices did affect the result of the election, it follows that the respondent, Teaiwa Tenieu, shall be incapable to fill the vacancy, at Tabiteuea North, created by this judgment

(c) Since no allegation was made against the other elected member, fireman Taoaba, nor was he made a party to theme proceedings I refuse to declare that the whole election was void, and

(d) The respondent shall pay the costs of the petitioners

THE HON F MUHAMMED
CHIEF JUSTICE

(14/11/91)

IN THE HIGH COURT OF KIRIBATI
HCCC NO. 5 of 1991

BETWEEN:

TUARIRAKE TEIWAKI
KORAUBARA TETABEA
BORERE YEE-ON
Petitioners

AND:

TEAIWA TENIEU
Respondent

(BEFORE THE HON F MUHAMMAD C.J.)

Mr Teiwaki for Petitioners
Mr Wijesekera for Respondent

TO THE CHIEF ELECTORAL OFFICER
CERTIFICATE IN TERMS OF SECTION 34(2)
OF THE ELECTION ORDINANCE (CAP 29B)

I, Faqir Muhammad the Chief Justice of the Republic of Kiribati, certify that upon the petition of Tuarirake Teiwaki, Koraubara Tetabea and Borere Yee-On, the High Court, on this 14th day of November 1991, made the following orders:-

(a) that the election of the respondent Teaiwa Tenieu held on 8^th and16^th May 1991 for the constituency of Tabiteuea North is declared void

(b) that the said Teaiwa Tenieu shall be incapable to fill the vacancy created by this judgment, and

(c) that the election of Ereman Taoaba for the same constituency shall remain valid.

THE HON F MUHAMMAD
CHIEF JUSTICE

(14/11/91)