Boutu v Smith - judgment [2003] KIHC 34; Civil Case 02 & 03 of 2003 (16 March 2003)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT KIRITIMATI

CIVIL CASE NO. 02/03

BETWEEN:

MARTIN BOUTU
Petitioner

AND:

TAUNGA SMITH
TAWITA TEMOKU
Respondents

For the Petitioner: Mr Aomoro Amten
For the Respondents: Ms Taoing Taoaba

CIVIL CASE NO. 05/03

BETWEEN:

ITIUA BINATAAKE
Petitioner

AND:

TAUNGA SMITH
TAWITA TEMOKU
Respondents

For the Petitioner: Mr Banuera Berina
For the Respondents: Ms Taoing Taoaba

Date of Hearing: 10, 11, 12 & 13 March 2003

JUDGMENT

Two petitions each praying to declare invalid the election of the respondents, the two gentlemen elected at the General Election late last year to represent Kiritimati in the Maneaba ni Maungatabu. By consent the petitions were heard together. Mr Banuera Berina representing the petitioner Itiua Binataake in action 05/03 led Mr Aomoro Amten representing the petitioner Martin Boutu in action 02/03. Ms Taoing Taoaba represented both respondents, Taunga Smith and Tawita Temoku.

Each petition had in it allegations of bribery and treating. The respondents in their reply to each petition denied having acted contrary to the Elections Ordinance.

Not all the allegations in the petitions were pursued at hearing. In his final address Mr Berina defined five allegations in issue.

I take the wording from the petitions:

(1) On or about 28th November 2002, one (1) day before the general election was held, the First Respondent visited the Catholic Church maneaba at Poland village and there gave the voters present in that maneaba four (4) sleeves of cigarettes valued at one hundred and thirteen dollars ($113.00) for the purpose of corruptly influencing those voters for him in the general election. (paragraph 7 of petition, 05/03),

(2) On or about 18th November 2002, eleven days before the first general election was held, the First Respondent and his supporters visited the primary school maneaba at Poland village, and there told the voters who were present to vote for him.

(3) Further on the same day at the same place - the First Respondent and h is supporters provided food to the voters in the form of corned beef and rice for the purpose of corruptly influencing hose voters to vote for him. (Paragraphs 4 and 5 of petition 05/03).

On or about 24th November 2002, five (5) days before the first general election, the First Respondent visited the Catholic Church maneaba at Tabwakea village and there gave the voters in that maneaba three (3) sleeves of cigarettes valued at eighty dollars ($84.00) for the purpose of corruptly influencing those voters to vote for him. (Paragraph 6 of petition 05/03)

(4)(5) On or about 23rd November 2002 six days before the first round of election was held, the Second Respondent's wife gave or caused to be given to the women at the Catholic Church maneaba at London a tin of corned beef valued at thirty five dollars ($35.00) for the purpose of corruptly influencing those women to vote for her husband. (Amended paragraph 8 of petition 05/03).

On 29 November 2002 Tawita Temoku transported truckloads of men from Tabwakea village to Ronton village and offered beers to them and took them to polling stations at both villages. (Paragraph 4(ii) of petition 02/03).

The first three allegations concern Taunga Smith: the fourth and fifth Tawita Temoku.

During his address Mr Berina abandoned the fifth allegation after I suggested that it is not an offence in Kiribati to transport electors to the polling station. It was in certain circumstances in the UK Representation of the People Act 1949 but those provisions have not been reproduced in the Elections Ordinance.

Mr Berina had not led evidence on any offers of beers although a witness for the petitioners, Ieatoabwebwe Komatia:

Went to polling station by car. Others in pick-up can't recall how many - may be 10. After casting our votes, something to drink. Drink had something to do with Tawita - to wish him luck. Didn't ask us to vote for any particular candidate. I drank sour toddy. (Cross-examination).

[All quotations of evidence are from my notes made during the hearing.]

That left only one complaint against Tawita Temoku, allegation four. The petitioners had one witness, Nei Tannako Bwebwetaake:

Know Tawita and his wife Nei Naomi Pre-school Feast.

Met Tawita's wife on a Sunday: on Sunday before election on Friday. I came back from store and Naomi's daughter-in-law called me: Naomi gave me big tin of meat - about $30 something: "at least that will contribute to the banquet". I took it to maneaba and told women where it had come from. Said I'd brought it from Naomi who had given it to me.

(Examination-in-chief).

The big tin of meat was more than enough for a contribution: it would make a lot of contributions as everyone in the maneaba had some. A big tin of Ox & Palm.

(Cross-examination).

I was not impressed with the two witnesses for the respondents. I accept beyond reasonable doubt Nei Tannako's evidence but is it enough to find Tawita guilty of treating?

Treating is an offence and so the onus is proof beyond reasonable doubt, see 15 Halsbury (4th edition) paragraph 897 - the only authority I have on Kiritimati.

Even though the respondent's wife gave a gift more than sufficient and even though the family were not at the feast there is no evidence to link the gift to the respondent or to the election. The inference is there but nothing more: the corned beef may have been given innocently: no proof beyond reasonable doubt of any offence.

The allegations against Tawita Temoku fail. He is not guilty of any offence.

That leaves the three sets of allegations against Taunga Smith, the provision of food, corned beef and rice, and the giving of sleeves of cigarettes.

I consider first the provision of food. The relevant section in the Ordinance:-

25. The following persons shall be deemed to be guilty of treating within the meaning of this Part -
    
    1. every person who corruptly, by himself or by any other person, either before, during or after an election, directly or indirectly gives (or) provides any food (or) drink, to or for any person, for the purposes of corruptly influencing that person or any other person to vote or refrain from voting at such election,
       

The petitioners' evidence is that Taunga arrived at the primary school maneaba in Poland with a group of people belonging to an organization, Aan te I-Kiritimati. Tearabwebwe, the chairman of Aan te I-Kiritimati, spoke: the aim of the group was to topple the Government: he mentioned Taunga. Taunga spoke. Afterwards those present had food brought by the group.

The petitioners had two witnesses. The first Bakatete Korintaake:

Taunga came in November. School maneaba. I was there. 20-30 there. He was with companions more than 10. They came electioneering with Aan te I-Kiritimati. Purpose of campaign to topple Government: candidates. Chairman Tearabwebwe said candidate with them, Taunga. Taunga spoke. After his speech something to eat. Food provided by Aan Te I-Kiritimati. Village people didn't provide anything. They provided tinned meat and rice: many small tins opened and poured into a big basin: big basin of rice: milk, hot beverages and cigarettes - passed round - packets of cigarettes, when finished more provided. Taunga there. Everybody was full up and we didn't finish it. (Examination in chief).

They brought a bag of rice - 25k - and cooked at near-by house. Tearabwebwe said no one to go away as food provided. They took it off the truck on which they arrived, cooked it at nearby house and brought it to maneaba. I believe Taunga involved; he was there while food being consumed.

(Cross-examination).

The second witness Teakoi Kabuaira was to the same effect. He and three companions were on their motor bikes going fishing: on the way they met the truck in which Taunga and the group were traveling: the four of them were persuaded to go back to the maneaba.

The evidence in rebuttal was that the object of the group Aan te I-Kiritimati (there was some dispute as to its name) was to further the welfare of people living on Kiritimati. It was not a political organization supporting Taunga: it was a coincidence that the meeting in Poland was during the election campaign and that Taunga, not a member of the group, hitched a ride that day. It was admitted that some food, certainly tinned meat if not rice as well, was provided.

I do not accept the respondent's evidence. It is too much to believe that an organization admitting at least to semi-political objectives could have a meeting in company with a candidate during an election campaign and that meeting was not an election meeting. The meeting was an election meeting in support of Taunga Smith and food was provided.

The allegation in paragraphs 4 and 5 of the petition 05/03 are proved beyond reasonable doubt.

I consider now the allegation concerning the sleeves of cigarettes. The relevant section in the Ordinance:-

24. The following persons shall be deemed to be guilty of bribery within the meaning of this Part-
    

(a) every person before or during an election who directly or indirectly, by himself or by any other person on his behalf, gives valuable consideration to or for any elector in order to induce such elector to vote or refrain from voting-

Provided - that any person making a customary offering to a maneaba, referred to an (sic - should be "in") I-Kiribati as "mweaka" "moanei" or "ririwete" with the sole intention of, showing (sic - "respect" has been omitted) for the customs and traditions of Kiribati, shall not be guilty of bribery.

A sleeve of cigarettes is a parcel of eight to ten packets of cigarettes, packed by twos, side by side and wrapped in cellophane or some other clear wrap, a long narrow parcel. A sleeve of cigarettes is about the length of a man's forearm: hence the name. It is "valuable consideration" as referred to in s.24 (a).

The first and third of Mr Berina's allegations concerned sleeves of cigarettes.

The first respondent in the response to petition 05/03:-

The 1st Respondent admitted that he provided cigarettes to the voters at Kiritimati Island NOT FOR the purpose of corruptly influencing those voters to vote for him during the election but as his 'mweaka' for visiting the maneaba.

By amendment made at the hearing:-

First Respondent denies paragraph 6 of the Petition (in 05/03) and avers that on or about 24th November 2002 he visited the Catholic Church maneaba at Tabwakea for the purpose of campaigning. He provided no cigarettes on that visit. Furthermore that he again visited Tabwakea maneaba before the 2nd round of general election and provided one sleeve of cigarettes to the people there NOT FOR the purpose of corruptly influencing the voters there but as 'mweaka' for visiting the maneaba.

Those two paragraphs contain an admission that Taunga Smith did present sleeves of cigarettes during the election campaign. He admitted it again in his evidence:-

Catholic maneaba in Tabwakea: visited it twice. Second round went with Tawita. We both spoke after that I gave my mweaka on behalf of Tawita and myself - a sleeve of Alpine. Tawita spoke. Had a drink and left. Can't recall cost of a sleeve - between $20 and $30 - could be $30 something.

Taunga Smith both in the response to petition and in his evidence admitted giving one sleeve of cigarettes at Tabwakea and at Poland. They were, he said "mweaka" as custom required.

The allegations in the petition are of gifts of more than one sleeve, at Tabwakea three sleeves and at Poland four sleeves. For reasons which appear later, to decide whether or not to grant the prayer in the petition, it does not matter whether he gave one sleeve or three or four. Accordingly there is no point in canvassing the evidence in detail. All I need say is that with one exception, I strongly preferred the evidence for the petitioners to that for the respondent to the point of being satisfied of the allegations beyond reasonable doubt. The one exception is Rikitio Tierata, the catechist at Tabwakea, whom I considered an excellent witness and upon whose evidence I can rely without hesitation:

Taunga came to speak prior to first round alone. One evening during a rehearsal: Catholic maneaba. I recall being given three sleeves of cigarettes - on night Taunga visited. Cigarettes arrived first then he arrived. Nei Mangori gave me cigarettes. I asked who from? I saw Taunga and asked is it from Taunga and Nei Mangori nodded her head. I distributed them, telling people cigarettes from Taunga - first to old men - a packet each - and then others single cigarettes. - Spoke to Buraieta conductor. We had a break. I told Buraieta to call Taunga in: cigarettes not yet distributed. Taunga made a speech. A unimane thanked him. I distributed cigarettes before he came in: told people they were from Taunga.

(Examination in chief).

The next morning Buraieta came to see me: wished to rectify matter of cigarettes: said the cigarettes were his and not Taunga's: reminded me as he was leaving to announce it. I had thought he was joking: he is a jolly fellow.

(Cross-examination).

I don't know about Buraieta joking but it seems likely Taunga or his supporters realized three sleeves should not have been given and put together the explanation that they came from Buraieta, an explanation which I do not believe.

Rikitio's evidence supports the petitioners.

I find proved beyond reasonable doubt the allegations in paragraphs 6 and 7 of petition, 05/03.

Only last year Parliament amended the Elections Ordinance and inserted the definition of "mweaka, moanei or ririwete":

"mweaka, moanei or ririwete" means in accordance with Kiribati traditions and customs, the giving away or offering of a gift of a block of tobacco containing about 30 sticks of tobacco and not weighing more than 500g or its equivalent in cash of not more than $20.00 or such other higher figure as inflation may allow.

The definition is clear and definite: "mweaka" is either a block of stick tobacco or $20 instead. This is not an old provision but one passed less than six months ago. Had it been an old provision I might have been persuaded it was out of date and there would be no harm in giving it an extended meaning, one sleeve of cigarettes instead of the stick tobacco.

I could not have been persuaded that three or four sleeves was no harm. I even doubt that I could have been persuaded to stretch the law at all. The Ordinance is mandatory. The Court is not given a discretion to ignore even the smallest transgression.

It is not permissible to substitute for stick tobacco any other kind of tobacco. The law must be strictly followed. Parliament is assumed to have made a considered decision. Mweaka is stick tobacco or $20: nothing else. A sleeve of cigarettes is not mweaka.

It may be that Taunga Smith genuinely believed he was entitled to substitute the sleeve of cigarettes for the block of stick tobacco (although the Assistant Electoral Officer said he advised the candidates that mweaka was one block or $20). If so, I sympathise with him but I am bound by the law. Taunga Smith has admitted giving one sleeve at each of the two maneabas: I have found that he gave three and four sleeves.

Neither "corrupt" nor "corruption" is defined in the Ordinance. As Halsbury (15 Halsbury (4th edition) paragraph 686) says, "Corrupt practices are for the most part aimed at abuses of influence, for example bribery, treating".

I have no doubt the food was provided by his supporters at Poland primary school for the purpose of gaining favour for Taunga with the electors in the hope that they would vote for him. Even the giving of one sleeve of cigarettes - I have found he gave three and four sleeves of cigarettes the Catholic maneaba at Tabwakea and at the Catholic maneaba at Poland respectively - is sufficient to make Taunga guilty of bribery.

Taunga Smith is convicted of the corrupt practices of treating (the provision of the food) and of bribery (the giving of the sleeves of cigarettes). What are the consequences? S.19(1):

No election shall be valid if any corrupt or illegal practice is committed in connection therewith by the candidate elected.

The section has been drawn unhappily in that it contemplates only one candidate being elected even though a previous section of the Ordinance, section 5, provides for more than one member from some electoral districts.

"Election" means "an election of a member of the Maneaba ni Maungatabu". Section 19(1) is construed as:- "No election of a member of the Maneaba ni Maungatabu shall be valid if". Interpreting this, only Taunga Smith's election is in issue: the invalidity does not extend to Tawita Temoku. During his address, Mr Berina agreed that if I found only one of the respondents guilty, then the other should not have to go again to election. It would be very unfair if it meant anything else. Tawita retains his seat. There will be a bye-election for one member for the Kiritimati electoral district.

Subject to argument by counsel I shall not take any action under s.23. The first respondent already suffers the heavy penalty of losing his seat and the penalties in s.29.

Dated the 16th day of March 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice