In the Matter of Puka Temu, Member of Parliament [2006] PGLT 2; N3099 (24 August 2006)

N3099

PAPUA NEW GUINEA

IN THE MATTER OF THE TRIBUNAL APPOINTED UNDER SECTION 27(7) (e) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP TO INVESTIGATE, INQUIRE INTO AND DETERMINE ALLEGED MISCONDUCT IN OFFICE BY

HONOURABLE DR PUKA TEMU CMG MP

MEMBER FOR ABAU OPEN
MEMBER OF CENTRAL PROVINCIAL ASSEMBLY
MINISTER FOR LANDS AND PHYSICAL PLANNING

Waigani: Justice George Manuhu, Chairman;
District Court Magistrate Jack August, Member;
District Court Magistrate Betty Kup, Member

2006: 26 July, 2nd, 10th, 24th August

LEADERSHIP TRIBUNAL - Misconduct in office - Failure to give annual statement to Ombudsman Commission - Admitted Allegations - Confirmation of admission - Consideration of evidence - Denied Allegations - Determination of denied Allegations - Wordings of allegations - Whether bad for uncertainty and or duplicity.

LEADERSHIP TRIBUNAL - Misconduct in office - Failure to give annual statement to Ombudsman Commission -Penalty - No serious culpability - Public policy and public good - Alternative penalties - Relevant considerations.

Cases Cited:
No cases were cited.

Counsel:
P. Kaluwin, Counsel assisting the Tribunal.
L. Henao, Counsel for the Leader.

2 August, 2006.

DECISION ON FINDING OF GUILT

1. THE TRIBUNAL: This is the Leadership Tribunal’s decision after the conclusion of its hearing of evidence into alleged misconduct in office ("Allegations") by Honourable Dr. Puka Temu, Member for Abau, Member of Central Provincial Assembly and Minister for Lands and Physical Planning ("The Leader").

2. The Public Prosecutor’s Reference of 29th June 2006 contains six counts of alleged misconduct in office by the Leader. All six Allegations relate to the Leader’s alleged failure to give annual statement to the Ombudsman Commission. Each Allegation was put to the Leader on 26th July 2006 to which the Leader pleaded guilty to Allegations 1, 2, 3 and 4. The Leader denied Allegations 5 and 6.

Allegation 1

THAT from April 2000 to April 2004, the Leader failed without reasonable excuse to give to the Ombudsman Commission a statement in accordance with Section 4(1) of the Organic Law on the Duties and Responsibilities of Leadership;

IN THAT he failed to furnish to the Ombudsman Commission his annual statement for the period from 11 April 2000 to 10 April 2001;

THEREBY contravening Section 4(6) (a) of the Organic Law on the Duties and Responsibilities of Leadership.

3. The Leader pleaded guilty to this Allegation. The Tribunal has perused all the relevant materials. The evidence establishes that the Leader, without a reasonable explanation, failed to furnish to the Ombudsman Commission his annual statement for the period from 11 April 2000 to 10 April 2001. After numerous reminders by the Ombudsman Commission, the Leader eventually filed his annual statement on 28 January 2005, which is three and half years late. The Leader is accordingly guilty of misconduct in office as alleged.

Allegation 2

THAT from April 2001 to April 2004, the Leader failed without reasonable excuse to give to the Ombudsman Commission a statement on accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership;

IN THAT he failed to furnish to the Ombudsman Commission his annual statement for the period from 11 April 2001 to 10 April 2002;

THEREBY contravening Section 4 (6) (a) of the Organic Law on the Duties and Responsibilities of Leadership.

4. The Leader pleaded guilty to this Allegation. The Tribunal has perused all the relevant materials. The evidence establishes that the Leader, without a reasonable explanation, failed to furnish to the Ombudsman Commission his annual statement for the period from 11 April 2001 to 10 April 2002. The Leader eventually filed his annual statement on 28 January 2005, which means that he was late by two and a half years. The Leader is accordingly guilty of misconduct in office as alleged.

Allegation 3

THAT from April 2002 to April 2004, the Leader failed without reasonable excuse to give to the Ombudsman Commission a statement on accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership;

IN THAT he failed to furnish to the Ombudsman Commission his annual statement for the period from11 April 2002 to 10 April 2003;

THEREBY contravening Section 4 (6) (a) of the Organic Law on the Duties and Responsibilities of Leadership.

5. The Leader pleaded guilty to this Allegation. The Tribunal has perused all the relevant materials. The evidence establishes that the Leader, without a reasonable explanation, failed to furnish to the Ombudsman Commission his annual statement for the period from 11 April 2002 to 10 April 2003. The Leader, after numerous reminders, eventually filed his annual statement also on 28 January 2005. He was late by one and a half years. The Leader is accordingly guilty of misconduct in office as alleged.

Allegation 4

THAT from April 2003 to April 2004, the Leader failed without reasonable excuse to give to the Ombudsman Commission a statement on accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership;

IN THAT he failed to furnish to the Ombudsman Commission his annual statement for the period from 11 April 2003 to 10 April 2004;

THEREBY contravening Section 4 (6) (a) of the Organic Law on the Duties and Responsibilities of Leadership.

6. The Leader pleaded guilty to this Allegation. The Tribunal has perused all the relevant materials. The evidence establishes that the Leader, without a reasonable explanation, failed to furnish to the Ombudsman Commission his annual statement for the period from 11 April 2003 to 10 April 2004. The Leader, after numerous reminders, eventually filed his annual statement also on 28 January 2005. He was late by six months. The Leader is accordingly guilty of misconduct in office as alleged.

Allegation 5

THAT from April 2000 to April 2004, the Leader conducted himself in his public life and in his association with other persons in such a way that he:

Failed to cooperate to the best of his ability with the Ombudsman Commission to furnish his annual statements as they fell due contrary to Section 23 of the Organic Law on the Duties and Responsibilities of Leadership;

AND FURTHERMORE engaged in an activity that might be expected to give rise to doubt in public mind as to whether he was carrying out the duty imposed by Section 27 (1) of the Constitution.

IN THAT he consistently failed throughout that period, despite numerous reminders, to furnish to the Ombudsman Commission his annual statements for the periods from:

(1) 11 April 2000 to 10 April 2001; and

(2) 11 April 2001 to 10 April 2002; and

(3) 11 April 2002 to 10 April 2003; and

(4) 11 April 2003 to 10 April 2004;

THEREBY contravening Section 23 of the Organic Law on the Duties and Responsibilities of Leadership.

7. This Allegation is denied by the Leader. The Leader, through Mr. Henao, submits that Allegation 5 is badly drafted and is, therefore, bad for uncertainty and duplicity. Counsel assisting the Tribunal, Mr. Kaluwin submits that the wordings of the Allegation are as close as possible to the wordings of the relevant provisions of the Constitution and the Organic Law on the Duties and Responsibilities of Leadership ("The Organic Law"), and are, therefore, properly drafted. It is secondly argued that a misconduct charge could not be dismissed on the basis of duplicity. It was also pointed out that Allegations 5 stems from Allegations 1, 2, 3 and 4. Consequently, the Leaders admission to Allegations 1, 2, 3, and 4 means that he should also be found guilty in relation to Allegations 5.

8. The raised arguments may be properly understood by appreciating the relevant provision the Leader has allegedly breached or contravened. The alleged misconduct in office falls under Section 23 of the Organic Law, which reads:

"23. Failure to co-operate.

A person to whom this Law applies who obstructs, or fails to co-operate to the best of his ability with, the Ombudsman Commission, or other authority or a tribunal in any investigation or proceedings under or for the purposes of this Law (whether in relation to himself or some other person) is guilty of misconduct in office."

9. Relevantly, the main element of the provision is whether the Leader obstructed, or failed to co-operate to the best of his ability (with, the Ombudsman Commission, or other authority or a tribunal in any investigation or proceedings under or for the purposes of this Law (whether in relation to himself or some other person)). The wordings of Allegation 5 should, therefore, be consistent the relevant element of Section 23. It is adequate for the Allegation to state that Leader obstructed, or failed to co-operate to the best of his ability with the Ombudsman Commission.

10. In this case, an examination of Allegation 5 shows that only one misconduct allegation was intended. Such intention is manifested in the convenience of the use of the words "THAT", "AND FURTHERMORE", "IN THAT" and "THEREBY". Each of these words is purposefully and logically placed at the beginning of each paragraph of the Allegation. On the face of it, therefore, there is only one Allegation against the Leader.

11. Unfortunately, there are probably two Allegations in one. This is evident firstly from the reference to Section 23, as the contravened provision, in the second paragraph as well as the last paragraph of the Allegation. Such repeated reference cannot be repeated if the Allegation is a single misconduct. The probability of two Allegations is also evident from the separate factual basis in the second and fourth paragraphs. The factual basis for the first Allegation, which appears in the second paragraph, is as follows:

"...he failed to cooperate to the best of his ability with the Ombudsman Commission to furnish his annual statements as they fell due".

12. The factual basis for the second Allegation, which appears in the fourth paragraph, is as follows:

"...he consistently failed throughout that period, despite numerous reminders, to furnish to the Ombudsman Commission his annual statements for the periods from:

(a) 11 April 2000 to 10 April 2001; and

(b) 11 April 2001 to 10 April 2002; and

(c) 11 April 2002 to 10 April 2003; and

(d) 11 April 2003 to 10 April 2004."

13. The net result of all of these is duplicity, confusion and uncertainty. The Tribunal has carefully considered the wordings of Allegation 5 and is unable to fully understand how it has been drafted. The Tribunal should probably not indulge in technical issues of drafting but the Tribunal is duty bound to observe the principles of natural justice and general fairness. This includes the requirement for an Allegation to be properly worded and, ultimately, properly understood by a Leader. If an Allegation is, consequently, badly drafted and confusing to the Leader, the Tribunal is duty bound to deal with and appropriately eliminate the unfairness.

14. In this case, the Tribunal understands the intention of the drafters of the Allegation but it is as confused as the Leader. If the Allegation was a beast, it would be difficult to tell where the head is and where the tail is. Consequently, the Tribunal accepts the Leader’s submission that Allegation 5 is bad for uncertainty and or duplicity, and is unfair on the Leader.

15. A situation of uncertainty or unfairness should not be tolerated by any Tribunal. In view of the serious consequences this proceeding could have on the Leader and the people he represents, the Parliament, and the government of Papua New Guinea, it is appropriate that Allegation 5 be dismissed.

16. For the sake of completeness, the Tribunal has included a simpler version of Allegation 5, which is as follows:

"THAT between April 2000 and April 2004, the Leader failed to co-operate to the best of his ability with the Ombudsman Commission,

IN THAT he consistently failed throughout that period, despite numerous reminders, to furnish to the Ombudsman Commission his annual statements for the periods from:

(a) 11 April 2000 to 10 April 2001; and

(b) 11 April 2001 to 10 April 2002; and

(c) 11 April 2002 to 10 April 2003; and

(d) 11 April 2003 to 10 April 2004.

THEREBY contravening Section 23 of the Organic Law on the Duties and Responsibilities of Leadership."

17. Allegation 5, if drafted in this way, would be short and simple but it would capture all the relevant elements of Section 23 as well as the relevant facts of the Allegation. There is nothing lacking in the suggested sample. Most importantly, it would not be confusing to any Leader.

18. In the meantime, for the reasons already given, Allegation 5 is dismissed.

Allegation 6.

THAT from April 2000 to April 2004, the Leader conducted himself in his public life and in his associations with other persons in such a way that he:

(a) demeaned the various offices he held during that period, viz secretary, Department of Health; member of the Parliament for Abau Open; member of the Central Provincial Assembly; Minister for Public Service; Minister for State Enterprises and Information; Minister for Lands and Physical Planning; and

(b) allowed his official integrity and his personal integrity to be called into question; and

(c) endangered and diminished respect for and confidence in the integrity of government in Papua New Guinea;

AND FURTHERMORE engaged in an activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by Section 27 (1) of the Constitution;

IN THAT he consistently failed throughout that period, despite numerous reminders, to furnish to the Ombudsman Commission his annual statements for the periods from:

(1) 11 April 2000 to 10 April 2001; and
(2) 11 April 2001 to 10 April 2002; and
(3) 11 April 2002 to 10 April 2003; and
(4) 11 April 2003 to 10 April 2004;

THEREBY contravening Section 27 (1) (b), 27 (1) (c), 27 (1) (d), 27 (2), and 27 (5) (b) of the Constitution.

19. The Leader denied this Allegation. The Leader raised similar arguments as he did in relation to Allegation 5. He argued that Allegation 6 is also bad for uncertainty and duplicity. Mr. Kaluwin similarly argued otherwise.

20. The Leader, under Allegation 6, is alleged to have breached Sections 27 (1) (b), 27 (1) (c), 27 (1) (d), 27 (2), and 27 (5) (b) of the Constitution. Section 27, therefore, provides:

"27. Responsibilities of office.

(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not-

(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or

(b) to demean his office or position; or

(c) to allow his public or official integrity, or his personal integrity, to be called into question; or

(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).

(3) It is the further duty of a person to whom this Division applies-

(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and

(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.

(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.

(5) A person to whom this Division applies who-

(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or

(b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3),

is guilty of misconduct in office."

21. Subsections (1), (2) and (3) spell out the duties and responsibilities of a Leader. Subsection (4) speaks of the function of enforcement bodies, including the Ombudsman Commission, in relation to the duties and responsibilities under Subsections (1) (2) and (3). Subsection (5) is an important provision. Subsection (5) provides that a Leader who fails to carry out the obligations under Subsections (1) (2) or (3) is guilty of misconduct in office. Subsection (5) gives meaning and teeth to the whole of Section 27 including the function of a Tribunal. Allegation 6 would, therefore, be baseless if Subsection (5) is not part of Section 27.

22. This means that the wordings of an Allegation, to alleviate confusion, should be precise and consistent with the wordings of Subsection (5). Accordingly, the Allegation could have been drafted in the following manner:

"THAT between 11 April 2000 and 11 April 2004, the Leader failed to carry out his obligations imposed by Section 27 (1) (b), 27 (1) (c), 27(1) (d), and 27 (2) of the Constitution

IN THAT he consistently failed throughout that period, despite numerous reminders, to furnish to the Ombudsman Commission his annual statements for the periods from:

(1) 11 April 2000 to 10 April 2001; and
(2) 11 April 2001 to 10April 2002; and
(3) 11 April 2002 to 10 April 2003; and
(4) 11 April 2003 to 10 April 2004,

THEREBY contravening Section 27(5) (b) of the Constitution."

23. A Tribunal is, thus, at liberty to consider a Leader’s alleged misconduct against any of the obligations under Subsections (1), (2) or (3). A Tribunal, in its duty to investigate, hear and determine, does not have to be hindered by an unnecessarily restrictive drafting. However, Allegation 6 is not entirely confusing to the Leader.

24. In any event, it remains to be determined whether consistent failure to file annual statements impacts upon Section 27 to the extent that it:

• demeaned the various offices the Leader held;
  
• affected the Leader’s official and personal integrity;
  
• endangered and diminished respect for and confidence in the integrity of government in Papua New Guinea;
  
• gave rise to doubt in the public mind as to whether the Leader was carrying out the duty imposed by Section 27 (1) of the Constitution.
  

25. Like a suit for defamation where publication is an element, public access and knowledge of a Leader’s alleged misconduct is critical and relevant to the operation of Section 27. A Leader’s integrity, for instance, in the absence of public access and knowledge of a particular misconduct, remains unaffected. The integrity of the government is also unaffected if the public is not aware of the misconduct in question.

26. In this case, the filings of annual statements are not done in the public domain and in association with others. The Ombudsman Commission privately communicates with a Leader and the Leader responds also in private. The Ombudsman Commission and its staff, owing to the nature of their functions, cannot be regarded as members of the public for this purpose. Formal investigations, for that matter, by the Ombudsman Commission are also kept in total confidence. Thus, the public does not and cannot know if a Leader has failed to file an annual statement.

27. In this case, for instance, the misconduct in question was committed between 2000 and 2004. The public did not know about the misconduct at that time time. The public only became aware of the misconduct when the Leader was referred and his referral publicized. The practical reality, therefore, is that at the time of the Leader’s failure to file annual statements, Section 27 was irrelevant.

28. The Tribunal, for the foregoing reasons, is of the view that when the Leader failed to file his annual statements between 2000 and 2004, which was only known to the Ombudsman Commission, the Leader did not demean the various offices he held; the Leader’s integrity was not called into question; the Leader did not endanger and diminish respect for and confidence in the integrity of government in Papua New Guinea; and, the failure to file annual statements did not give rise to doubt in the public mind as to whether the Leader was carrying out the duty imposed by Section 27 (1). In the circumstances, Allegation 6 is baseless and is dismissed.

29. As a general comment on Allegations 5 and 6, the misconduct in question is specifically legislated for and is already adequately covered by Allegations 1, 2, 3 and 4. The Leader is, thus, already being made to account for all of his failures to file annual statements. Allegations 5 and 6 do not, therefore, serve any useful purpose. In any event, after all the publicity, the Leader’s misconduct would adversely impact upon his integrity, the integrity of the offices he holds, and the integrity of the government. All of these adverse implications have emerged after the publicity of the referral. Such adverse implications are better utilized as factors of aggravation in the event of a finding of guilt, as is the case here.

30. In the final analysis, the findings of the Tribunal on the six Allegations are:

Allegation 1 Guilty

Allegation 2 Guilty

Allegation 3 Guilty

Allegation 4 Guilty

Allegation 5 Not Guilty

Allegation 6 Not Guilty

24 August, 2006

DECISION ON PENALTY

31. BY THE TRIBUNAL: This is the decision of the Tribunal on penalty after confirming the Honourable Dr. Puka Temu’s (The Leader) guilty plea in relation to four counts of misconduct in office for failing to file with the Ombudsman Commission his annual statements as they fell due for the periods 2000 to 2004 as required by section 4 of the Organic Law on the Duties and Responsibilities of Leadership (The Organic Law).

32. Section 4 of the Organic Law relevantly provides:

"(1) A person to whom this Law applies shall-

(a) ....; or

(b) within three months after becoming such a person,

as the case may be, and at least once in every period of 12 months while he remains such a person, give to the Ombudsman Commission a statement to the best of his knowledge setting out, in respect separately of himself and his spouse and any of his children under voting age-

(a) the total assets including money, personal property and real property in the possession or under the control of each of them; and

(b) the total income received by each of them during the period to which the statement relates and the source of each of those incomes; and

(c) the business connexions of each of them (including any business connexions with unincorporated profit-seeking organizations); and

(d) the directorships or other offices in a corporation or an unincorporated profit-seeking organization held by each of them; and

(e) all business transactions entered into by each of them (including transactions with unincorporated profit-seeking organizations) during the period to which the statement relates; and

(f) all gifts received by them (other than gifts received in the normal course of events from close relatives) during the period to which the statement relates and the value of those gifts; and

(g) the assets acquired by each of them during the period to which the statement relates; and

(h) the liabilities incurred or discharged by each of them during the period to which the statement relates, and the amount of each such liability."

33. The Tribunal has found that the Leader, without a reasonable explanation, failed to furnish to the Ombudsman Commission his annual statements as they fell due on four consecutive periods. The Leader’s annual statement for the period from 11 April 2000 to 10 April 2001 was filed three and half years late. His annual statement for the period from 11 April 2001 to 10 April 2002 was late by two and a half years. The Leader was also late by one and a half years in the filing of his annual statement for the period from 11 April 2002 to 10 April 2003. The Leader’s annual statement for the period from 11 April 2003 to 10 April 2004 was also late by six months. The Leader did file his annual statements but he did so in excess of the three months period as permitted by the Organic Law.

34. A Leader who does not file his annual statement within the given three month period is guilty of misconduct in office. Section 4 (6) of the Organic Law provides:

"(6) A person to whom this Law applies who-

(a) fails without reasonable excuse (the burden of proof of which is upon him) to give to the Ombudsman Commission or other authority a statement in accordance with Subsection (1), or to give any explanation or details required under Subsection (4); or

(b) knowingly, recklessly or negligently gives such a statement or explanation, or any such details, that is or are false, misleading or incomplete in a material particular,

is guilty of misconduct in office."

35. The Leader was found guilty under this provision for filing his annual statements in excess of the three months period.

36. The Tribunal, following the finding of guilt, is obligated to consider and impose a penalty or penalties on the Leader. The process of penalty consideration begins with Section 27(5) of the Organic Law. It provides that if a Tribunal finds a Leader guilty of misconduct in office, it shall recommend to the appropriate authority that he be dismissed from office or position. However, Section 28 (1A) of the Constitution provides that an Organic Law may provide that where a Tribunal finds that there was no serious culpability on the part of a person found guilty of misconduct in office; and public policy and the public good do not require dismissal, it may recommend to the appropriate authority that some other penalty provided for by law be imposed.

37. In this case, counsel assisting the Tribunal and counsel for the Leader agree that there is no serious culpability on the part of the Leader; and public policy and public good do not require that he be dismissed from his leadership position. On the question of serious culpability, the Tribunal is of the opinion that there is no serious culpability in a failure to file an annual statement on time by a Member of Parliament who is before a Tribunal for that reason alone. In contrast, having regard to the rationale underlying the requirement to file annual statements, serious culpability may be found in a total failure to file or in a false and misleading filing, which borders on dishonest intent, of an annual statement by a Leader.

38. On the question of public policy and the public good, the Leader is Member for the Abau Open electorate. He is the parliamentary elected representative of his people. The people of Abau have given him the mandate to represent their interests in the National Parliament. He is also a Minister and a member of the National Executive Counsel. The Electoral Commission may not be able to conduct a by election if the Leader is dismissed. Dismissing the Leader will leave a constitutional vacuum, particularly in the office of Open Member for Abau, until the next general elections in ten months time.

39. In the circumstances, dismissing the Leader from his leadership position would be excessive and detrimental to the people of Abau and the country as a whole. The Tribunal is satisfied that there is no serious culpability on the part of the Leader in relation to the misconduct in question; and public policy and the public good do not require his dismissal.

40. For the foregoing reasons, it is necessary to consider the appropriateness of other penalties that may be imposed on the Leader. Relevantly, Section 2 of the Leadership Code (Alternative Penalties) Act provides for the alternative penalties, in the following manner:

"The penalties that may be recommended and imposed under and for the purposes of Section 28(1A) of the Constitution and Section 27(5)(b) of the Organic Law are that the person found guilty of misconduct in office-

(a) be fined an amount fixed by the tribunal, not exceeding K1,000.00; or

(b) be ordered by the appropriate authority to enter into his own recognizance in a reasonable amount, not exceeding K500.00 ...; or

(c) be suspended, without pay, from office or position for a period not exceeding three months from the date of commencement of the suspension; or

(d) be reprimanded ...."

41. In this case, counsel assisting the Tribunal submits that the Leader should be fined on all four counts. The counsel appears to be asking for the maximum fine of K1,000.00 for each of the four counts. The Leader’s counsel submits, however, that the Leader should only be reprimanded on each of the four counts.

42. The Leader has apologised for his misconduct. He has substantially pleaded guilty to the charges. He has cooperated and assisted the Tribunal in speeding up the inquiry. He is a family man. He has a strong Christian background. He is a church leader and preacher.

43. The Leader’s leadership status began in 1996 when he was appointed as Secretary and was reappointed to the same position following the expiration of his first appointment. The Leader is reputed as one of the best Departmental Heads this country has had. During his term in office he, with distinction, put together the National Health Plan 2001-2010. Unfortunately, his premature removal did not permit him to implement the policies he had in place for his Department.

44. The Leader moved on with life and entered the political arena in the 2002 general elections. He was elected then as Member for Abau Open and was re-elected to the same position after a by election for obvious reasons. The Leader is currently the Minister for Lands and Physical Planning and a member of the National Executive Council. The Leader was previously Minister for Privatisation.

45. The Leader, in his private and public life, is highly regarded and respected by his peers, the community, his people, his church, and the country.

46. With such a solid personal, professional and leadership background, it is unbecoming and inexcusable that the Leader failed to file his annual statements on four consecutive periods. The Leader simply failed to prioritise his duties and responsibilities over the period in question and, consequently, breached a specific provision of the Organic Law on annual statements. The Leader not only neglected his duty to submit his annual statements on time, he also continued to take no notice of reminders sent to him by the Ombudsman Commission during those periods. It does not take long to complete an annual statement. Whatever the reason might be, it only takes several hours, maybe less, to complete an annual statement. It is, therefore, inexcusable for the Leader to be late in the filing of his annual statement as required by the Organic Law.

47. Leaders and parliamentarians, who are the country’s lawmakers, are expected to be leading by example in upholding the laws of the country. It is, therefore, a serious matter when a Leader breaches a law. A Leader’s breach of a law could have far reaching effect on the manner in which the rule of law is perceived by the people. In this case, the Leader has breached a specific provision of the Organic Law on the filing of annual statements. Such a breach and any breach of the Constitution or Organic Law by a parliamentarian for that matter is a serious misconduct.

48. The misconduct in question and the subsequent referral has to a certain extent affected the Leader’s public and official integrity and has demeaned his standing as a Leader. It has also impacted on the respect for and confidence in the integrity of the government. The Leaders of this country have been plagued with controversies and unsatisfactory ratings for a long time. It does not do the country any good by having another Leader added to the list of leadership prosecutions. The country’s international image is affected every time a Leader is referred and prosecuted.

49. The Tribunal is, however, confident that the Leader will not be late again in the filing of his annual statement. The Leader was simply indifferent to the seriousness of the need to file his annual statements on time. Fortunately, there was no intention to defraud anybody and no money was gained or lost by the Leader. The State has not lost anything from the misconduct.

50. However, while the Ombudsman Commission has the right to refer Leaders for prosecution, the Tribunal is of the view that the referral of the Leader has resulted in substantial expenses on the part of the Leader and the State. The Tribunal is not aware of how much his legal cost might be but, relative to the misconduct in question, the State has undoubtedly spent a substantial amount of time and money in this inquiry. While three judicial officers are appointed to this Tribunal, civil and criminal cases are mounting in the Tribunal members’ respective jurisdictions. There are hundreds of people in remand who have been forced to make way for this inquiry. The misconduct in question is, ultimately, overshadowed by the total expenses and inconvenience to the country in holding this inquiry.

51. In all the circumstances, the Tribunal is of the view that maximum fine may be too harsh but a reprimand may be perceived as too lenient a punishment for the Leader’s breaches of a specific provision of the Organic Law. Accordingly, the Tribunal recommends a fine of K500.00 on each of the four counts.

52. In summary, the recommended penalties are:

Allegation 1 Fine of K500.00

Allegation 2 Fine of K500.00

Allegation 3 Fine of K500.00

Allegation 4 Fine of K500.00

53. In compliance with Section 27 (1A), (2) and (3) of the Constitution, the Tribunal’s recommendation will be forwarded to the Head of State for appropriate action. For the sake of certainty, the Leader stands suspended until such time the recommended fines are paid in full. In compliance with Section 27 (6) of the Organic Law, a copy of this decision will be sent to the Speaker for presentation to Parliament and to the National Executive Council.
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Justice George Manuhu
Chairman

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District Court Magistrate Jack August (Member)
District Court Magistrate Betty Kup (Member)