Pisi v Akoitai and Electoral Commission [1998] PGNC 97; N1770 (2 October 1998)

Unreported National Court Decisions

N1770

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP 57 OF 1997
BENEDICT PISI
PETITIONER
AND
SAM AKOITAI
FIRST RESPONDENT
AND
ELECTORAL COMMISSION
SECOND RESPONDENT

Buka & Waigani

Jalina J
2-4 September 1998
2 October 1998

PARLIAMENT – Election Petition – Illegal Practice – No evidence to prove allegation – allegations dismissed.

PARLIAMENT – Election Petition – Undue Influence – threats – no evidence of physical treats or threatening words to influence voters – allegations dismissed.

PARLIAMENT – Election Petition – Errors and Omissions – Cancellation of Election for Security Reasons – Eligible Voters not giving evidence of turning up and being unable to vote due to cancellation – Allegations Dismissed

Cases Cited

Biri Kimisopa v Henry Smith & Electoral Commission Unreported Judgment (1998)

Gavera Rea v Mahuru Rarua Rarua [1977] PNGLR 338

Paul Kamod v Stanley Pil [1973]

Paul Poto v Dick Mune [1994]

In re Menyama Open Parliamentary Elections – Neville Bourne v. Manasseh Voeto [1977] PNGLR 298

Banega Isi Iowa v. Yeto Biaguni [1980] PNGLR 140

Raymond Agonia v. Albert Karo and Electoral Commission [1992] PNGLR 463

Legislation

Organic Law on National and Local-Level Government Elections

Criminal Code Act Ch. 262

Counsel

Mr C. Narokobi for the Petitioner

Mr J Sirigoi for the First Respondent

Mr A Kongri for the Second Respondent

2 October 1998

JALINA J: This is an election petition disputing the return of the First Respondent, Sam Akoitai, as duly elected National Parliament Member for Central Bougainville in the North Solomons Province. The petition contained 24 paragraphs.

On 5^th June 1998, Sawong J struck out most of the grounds except grounds 8, 9, 10, 11, 18, 20, 22 and 23 which were allowed to proceed to trial. From my perusal of these grounds, it appears that they fall under three (3) basic categories. The first category is that of illegal practices committed by the First Respondent. The allegations that fall under this category are paragraphs 8 and 18. The second category is that of undue influence by the First Respondent. The allegations that fall under this category are paragraphs 9, 22 and 23. The third category is that of errors and/or omissions on the part of the Second Respondent and the allegations which fall under this category are paragraphs 10, 11 and 20. For convenience I propose to consider the various allegations under the respective paragraphs I have mentioned above.

PARAGRAPHS 8 AND 18 – ILLEGAL PRACTICES

Paragraphs 8 and 18 are in the following terms:

“8. ҈ ire FRest Respondenondent, his committees or supporters unfairly used Defence Force helicopter to take ballot boxes to his village of Togalau on two occasions 18^th and 23^{rp> Ju97 wi the prhe presencesence of e of any electoral officials at the time when polling at Arawa was not allowed to take place. In doing so the First Respondent was able to unfairly receive 462 extra votes.”}

“18. On 18^th and 23^rd June 1997 the First Respondent used the PNGDF security forces helicopter to take ballot boxes to his villagcolletra v The same opportunity was never provided to the Petitioner and other caer candidandidates. tes. Had the Petitioner been given the same opportunity he would have collected more votes and therefore the result of the election would have been different.”

The law on illegal practices is set out in Part XVII of the Organic Law on National & Local-Level Government Election (the “Organic Law”). More specifically, Section 178 of the Organic Law provides the instances of illegal practices:

“S.178 Illegal Practices

(1) ;ټ Subjectbject to Suto Subsection (2), the following are illegal practices at elections:

(a) phblisanng ectelal arvertivertisement, handbill or pampor is an electoral notl notice (ice (other than the announcement by advertisement in a newspaper of the holding of a meeting) without the and as of erson authorisingising the the publipublication or issue being printed at the foot of it: and

(b) printing or publishing a printed electoral advertisement, handbill or pamphlet (other than an advertisement in a newspaper) without the ande of ess o prineing printed at the foot of it; and

(c)&#16) #1660 prin printing, ing, publishing or distributing an electoral advertisement, notice, handbill, pamphlet or card containing a representation of a ballot-paper or a represeon aptly ied to represent aent a ball ballot-paper, and having on it any directirections intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his vote; and

(d) &#160ntini, publishing or d or distributing an electoral advertisement, notice, handbill, pamphlet or card containing an untrue or incorrect statement intended or lito mi or ierly fere with an elector in or inor in rela relation tion to thto the casting of his vote; and

(e) ulllfinfy mingran elector ctor during the polling period that he is not enrolled or entitled to be enrolled for a particular elete, onot eed to, whea fact he is enrolled or entitled to be enrolled, oed, or is r is enrolenrolled oled or entr entitled to be enrolled for that electorate, or is entitled to vote, as the case may be.

(2) Nothing in Subsection (1) (c) or (d) prevents the printing, publishing or distributing of a card, not otherwise illegal, which contains instructions on how to vote foarticcandi so ls thostructions are not not intenintended oded or likr likely tely to mislead an elector in or in relation to the casting of his vote.

(3) ; A person guil y of an illn illegal practice is liable to a penalty of a fine not exceeding K1,000.00 or imprisonment for a term not exceeding six months.”

If an offence of illegal practice is proved in election petitions, then Section 215(3) of the Organic Law comes into play. This Section provides:

“S.215 Voiding Elections of Illegal Practices

(3) &&#160 Nateonal onal Court ourt shall not declare that a person returned as elected was not duly elected, or declare an election void:

(a) e thundrof anoillegal pral practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

(b) &#160thun oillegactice othe other than than brib bribery oery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that esulthe eln wasly to be affected, and that ihat it is t is just just that that the candidate should be declared not to be duly elected or that the election should be declared void.”

This provision has been considered in a number of cases. Recently in Biri Kimisopa –v- Henry Smith and Electoral Commission, Unreported Judgment undated (1998) Sawong J said at p. 5:

“Section 215(3) creates two situations. The first is that the National Court will not declare that a person was elected, not elected or declare an election void, on the ground of an illegal practise committed by a person other than a candidate and without the candidates knowledge or authority. In other words, in the first situation the illegal practise must have been committed by another person with the knowledge or authority of the candidates.

If the illegal practise was committed by person without the candidates knowledge or authority, the court will not declare an election void or declare the successful candidate not duly elected.

Furthermore, before the court can make the declarations as set out in s. 215(3), the court must be satisfied that the results of the elections was affected or was likely to be affected by the illegal practises complained of, and that it was just in the circumstances of a case to make those declaratory orders.

The crucial issue then is whether the error or omission, or illegal practice affected or was likely to affect the result of the election.

It is quite settled that where the petitioner is alleging irregularities or illegal practises he must prove two things. First he must prove by credible evidence that the irregularities or illegal practise in fact occurred. He must then also prove that the irregularity or illegal practise affected or was likely to affect the result of the election. This is determined by looking at the difference of votes casted for the petitioner or runner-up (if the petitioner was not the runner-up) and the successful candidate. Essentially it is a comparison of the numbers. See Gavera Rea v Mahuru Rarua Rarua [1977] PNGLR 338, Paul Kamod v. Stanley Pil (1973). Unregistered judgment of 12 March 1993, Paul Poto v. Dick Mune (1994) Unreported Judgment of Amet CJ dated 29 March 1994.”

The specific illegal practice the petitioner alleges in paragraphs 8 and 18 of the petition is that the First Respondent used the PNG Defence Force helicopter to take ballot boxes to his village to collect extra votes whilst the petitioner and other candidates were not given the same opportunity. Such allegations relate to the elections or polling at Wakunai only.

It should be pointed out at the outset that the Petitioner did not give evidence. He has only relied on the affidavit and oral evidence of Joseph Berenke, Michael Tokarato and Joseph Raririwa to prove the allegations which were allowed to proceed to trial.

Evidence regarding the elections in Wakunai were given by Michael Tokarato and Joseph Raririwa through their respective affidavits (Exh. B and C) and their oral evidence during cross-examination and re-examination. The affidavits of Michael Tokarato and Joseph Raririwa contain 6 paragraphs and are in almost identical terms:

“1. I am enrolledhin tmm CoRoln Roll and am eligible to vote at Wakunai in the 1997 National Elections.

2. ⶌthsup>tpup>tp> of 1 of 1997, I was standing in the queue at the Wakunai Pnai Pollinolling boog booth toth to cast cast my vote when the First Respondent shup incompany of his armed resistance group members.

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3. At around 160r hou t onsame same day the First Respondent, who was carrying a Defence Force issued SLR Rifle, demanded in no uncertain terms that all those vowho wtandi the retu theies and nond not to t to cast cast theirtheir vote votes.

4. ; A60the aterial time, thr, three members of his resistance group were also carrying Defence Force issued SLR Rifles.

5. &&#Becau the teninduct e re e resistance group roup membemembers anrs and upod upon then the demands of the First Respondent, I was frightened and went back home the s witcastiy votes for a candidate of myof my choi choice.

6. The con entshif ty a midavfidavit are true in every particular and whilst giving this statement, there were no threats, bribery or inducement of any kind useswearhe cos of my afit in faith.&#th.”8221;

It

It is n is noted oted that in the above affidavit, allegations were made more in respect of use of guns but there is nothing about the First Respondent or his committee and supporters using Defence Force helicopter to take ballot boxes to his village at Togarau on 18 and 23 June 1997 without electoral officials. There is also no evidence from both Michael Tokarato and Joseph Raririwa during cross-examination or re-examination that Defence Force helicopter was so used.

The unshaken evidence of the First Respondent which appear in paragraphs 7 and 8 of his affidavit (Def Exh. 3) is that:

“7. &&#16018 J ne 19ne 1997 (da7 (day of polling at Wakunai) at 9.00 am. I walked to Wakunai airstrip where the polling was being held. I was accompanied by Jacob Vesikavo, Luke Koikovia and some other boys. Polling started late about 11.00 am.

8. ټ&#W60; Iile I was awas at the polling place the polling team departed at about lunch time for Togarau village in the Rotokan area which is in Central Bougainville electorate. The polling led by Ezekiel Ivihi, the District Manager who was the assistant returning officer who was also accompanied by the polling officers and police and security force members to provide security at the polling booth in the village. The team was airlifted by Hevi Lift arranged by the Electoral Commission from Buka.”

So it is clear that neither the First Respondent nor his committees or supporters went to Togarau village. The helicopter used was not even a Defence Force helicopter but Hevi Lift helicopter. The team that went in the Hevi Lift helicopter included electoral officials.

The onus of proof in election petitions is upon the petitioner to prove to the entire satisfaction of the Court the ground relied upon; that is, to say it may be just short of the criminal standard although in application there be no real practical difference (See In re Menyama Open Parliamentary Election - Neville Bourne v. Manasseh Voeto [1977] PNGLR Biami Provincivincial Election in Banega Isi Iowa v. Yeto Biaguni [1980] PNGLR 140, Raymond Agonia v. Albert Karo & Electoral Commission [1992] PNGLR 463).

Having carefully considered the submissions in light of the evidence, I find that there is hardly any credible evidence to sustain the allegations of illegal practice contained in paragraphs 8 and 18 of the petition. There is no evidence that the First Respondent or his committees or supporters went to Togarau without electoral officials let alone in a Defence Force helicopter. The petitioner has not discharged the onus imposed upon him to my satisfaction. I accordingly dismiss grounds 8 and 18 of the petition.

PARAGRAPHS 9, 22 AND 23 – UNDUE INFLUENCE

Paragraphs 9, 22 and 23 are in the following terms:

“9. The First Reenondein bthe the leader of the resistance fighters was supervising the Election at the polling places at Wakunai witut thther tanceters.ng that time the First Respondent and the resistancstance fige fightershters whil whilst arst armed with SLR weapons demanded the electors not to vote at Wakunai.

22. polling commenned on the 1the 18^th June 1997 at Wakunai, the First Respondent was witnessed carrying a defence Force issued SLR rifle and walking around within the vicinity of the ling s in ompany of hiof his oths other Reer Resistance members. Three of his members were also witnessed carrying Defence Force issue SLR rifles and acting in a threatening manner towards the voters who were queuing up to cast their votes.

23. se of the threatening cond conduct of the First Respondent and his members who are directly under his control, many eligible votere s and back without casting their votes for a candidate of their choice.&ice.”#8221;

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The law which provides for an election of a candidate to be declared void for reasons of undue influence are to be found in s. 215(3) of the Organic Law and s. 102 of the Criminal Code. Section 215(3) has been referred to above so I need not quote it here. Section 102 of the Criminal Code provides:

“102. &#Undue Influence

An

Any person who:

(a) ҈& uses ores or threathreatens to use any force or restrains or does or threatens to do any temporal or spiritual injury or causes or threaten to any detrime any to an elector:

(i) ; &#160  in o in order to induc to m to vote or refrain from voting at an election or

(ii) on account ofhhis g vined oted or refrained from voting at an election; or

(b)҈& by f by force orcfrar pred prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an el to vr refrain from voting at an election;

is guilty of a misdemeanor.

P

Penaltenalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.”

In re Menyama Open Parliamentary Election (supra) it was held that where the ground relied upon in such proceedings is undue influence, it will be necessary to prove undue influence as constituted by s. 102 of the Criminal Code. Frost CJ said at p. 302:

“In order to constitute undue influence a threat must be serious and intended to influence the voter, but it would appear that the threat should be judged by its effect on the person threatened and not by the intention of the person using the threat. A threat event though the person using the threat has not the power to carry it out would seem to amount to undue influence. An unsuccessful threat has been held to amount to undue influence.”

The petitioner has not himself given evidence but has sought to prove undue influence as alleged in paragraphs 9, 22 and 23 of the Petition by relying on the evidence of Michael Tokarato and Joseph Raririwa whose basic evidence are in the affidavit I have referred to earlier when dealing with allegations of illegal practice.

In their affidavit evidence as well as in cross-examination and re-examination they talk about seeing the First Respondent with resistance force members with SLR weapons. From their evidence, it is clear that they did not see the First Respondent with an SLR rifle prior to the burning down of the building at Wakunai by the BRA. After they saw the smoke they saw the First Respondent with the rifle. The Resistance force members who had rifles were engaged by the security force to assist them to provide security during polling. The First Respondent has explained in his affidavit (Def Exh. 3) as well as in his oral evidence that he got the gun after he was shot at by the BRA. It would appear that the First Respondent had the rifle to defend himself. The statement of independent witness, Inspector Paul Kamuai (Def. Exh. 6) who was assigned to provide security at the time of polling shows that there were no threats from the First Respondent.

Applying the test enunciated by Frost CJ in Menyama Open Parliamentary Election case (supra) as to what constitutes undue influence, there is nothing in the evidence of Michael Tokarato or Joseph Raririwa to satisfy that requirement or test. There is no evidence to show that resistance force members were pointing their gun at the voters and saying, “if you do not vote for Sam Akoitai we will shoot you” or Sam Akoitai saying, “if you do not vote for me, I will shoot you” or “if you do not vote for me I will tell the resistance fighters to shoot you”.

In my view, to amount to undue influence, the First Respondent or the resistance force members must be shown to have physically pointed the gun or uttered words similar to those I have mentioned above. Without such evidence undue influence in the circumstances alleged cannot be sustained. I am therefore not satisfied that grounds 9, 22 and 23 have been established by the petitioner by credible evidence. I accordingly dismiss them as well.

GROUNDS 10, 11 AND 20 – ERRORS AND OMISSIONS

Grounds 10, 11 and 20 are in the following terms:

“10. Many pewho were to vote onte on the second polling day on 19^th June 1997 were not able to do so owing to the Second Respondent’s wrongful cancellationhe seday oling in Arawa. The Electoral Officer leer led by d by the Cthe Central District Returning Officer left early on 19^th June 1997 for Buka.

11. & Whilst there here were security problems in Wakunai and Arawa at the same time the polling at Wakunai was allowed to continue afterwards, but same and equal opportunity was not given to Arawa to have the second polliy, de assurance of saff safety fety from BRA leaders.

12. ټ The total elil eligible voters enrolled in the Common Roll for the Electorate of Central Bougainville is 28,000 as compiled by the Second Respondent. Out of these, 15,000 are enrollevote e Arawa area. How. However, owing solely to the neglect of t of the Second Respondent or persons under its authority, only 2,000 or so out of the total 15,000 eligible voters in Arawa voted in the election. The Second Respondent’s conduct amounted to a prima facie denial of the citizens right to vote as enshrined in the constitution.”

These grounds relate to the election in Arawa and are made against the Second Respondent.

To prove these allegations the Petitioner (who himself did not appear at the trial nor give evidence) relied on the evidence of Joseph Berenke part of which is in his affidavit – (Exh. A) sworn on 13 August 1997 and filed herein on 6 July 1998. The rest of Mr Berenke’s evidence appear in his cross-examination and re-examination.

Joseph Berenke’s affidavit evidence are as follows:

“1. ; I am enrolledaand am an e an eligible voter for Bougainville Regional electorate and Central Bougainville Open electorate.

.ټ&##160;; I am the chairman of the melanesian alliance party brty branch anch at Arat Arawa aawa and during 1997 election I co-ordinate the party campaign in Arawa and the Central Bougainville electorate elections.

3. ;ټ P60; Pollinglling commenced in Arawa on the 18^th June 1997 and that four polling booths were opened commencing at 8.00 am in the mornio the of mwledge the declaration of results of Ceof Centralntral Bougainville was on the 3^{rd July 1997.}

4. &##160;; H60; Howeverwever on the 18 June, the first day of polling there was an attack by rebels of the Bougainville Revolury Ar both Wakunai and Arawa and so polling was forced to close at 4.00 pm on that datt date.

5. Unlike in other arf s otraentral Bougainville electorate where polling was allowed to continue the next day, 19^th J1997,contiherea the ning er for the Electorate, Mathew Kusa, refusrefused toed to allo allow polw polling ling to reto reconvene in Arawa. This was so despite the fact that there was assurance from the Bougainville Revolutionary Army rebels that they will not disturb the orderly conduct of the election.

6. Soon after the refufal o rthe returning officer to conduct elections the following day, 20 June 1997, he left for Buka on the 19 June and never returned. His assistant Peter Siunai also left uka oJune and also never returneturned. Ind. In the the meantime the voting was continuing on at Wakunai beyond 18 June and well up to 23^rd June 1997. This was most unfair on the people of Arawa polling area.

7. ; Becausehof ttu returning oing officer’s reluctance to allow polling to recommence in Arawa just like in other areas of the electorate, the followi550 ele vowho arollethe common roll werl were dene denied tied the ophe opportuportunity to cast their vote. Details of the eligible voters and the names of their villages are listed as such in the Annex to this affidavit.

8. ـ҈ O60; On or a or about 19 June 1997 I complained to the returning officer at Arawa about the unfairness of the Electoral Commission in canceling electit Arat still conducting the elections at Wakunai. I al I also inso informed them that assurances of safety have been given by BRA and village chiefs.

9. ـ O60; On or about 19 June 1997 I went to Buka with Peter Mekea an eligible voter and a melanesian alliance party committee to complain to the Provincial Returning Officer, Mathias Pihei. We told him that assur of s of eons havs have beee been givn given however the elections were not continued. We then returned to Arawa on 21 June after getting advise from the returning officer to carry out further consultations also with the army regarding safety at the polling.

10. On or about discussaons esd despite such assurances the polling did not...... 21 June we held consultations again with army at Loloho but the commander, Tokam Kanene, said he did not have power regarding elections. With all this going back and forth no one made any decision and therefore the electors of Arawa area were denied their constitutional right to vote.

11. & As a Party lety leader in the Province, I believe strongly that the 1997 elections at Central Bougainville was not and fair. It was already difficult to hold elections throughout the Province and in denyingnying those areas allowed to have polling equal opportunity to vote was most unfair on the part of the Electoral Commission. There should be new elections and it must be conducted with fairness.

12. & All those depe deposed of in this my affidavit is true and correct to the best of my knowledge.”

But during cross-examination by Mr Sirigoi for the First Respondent, Mr Berenke reveals the following in rt of of names referrederred to i to in paragraph 7 of his affidavit:

“Q. &#1id yoe makt lhat list?

A. ټ Y60; Yes, I made it.

&p>Q. &#A60; had tas wde oa 18 .

Q.

Q. 1t0; A ptheingll/p>

A.&p>A. &#11as mn the following dayg day, that what was on the 20^th Friday.

.

Q

Q. ټ&#S60; u you sat doat down and listed 1550 names?

A. &&#1#1es, is t is t is corr correcorrect.

Q. ټ&#Y60; rou wrote thee them down on paper?

A. &&#Yes, te them down on papn paper.

Q. &##160   So list was osliously not not checked against the common roll?

<#160;;ټ&##160; was checked.

Q.&p>Q. #160;&#160 &##160; And thed these aese are list of people you think are eligible to vote in your opinion?

A. Yes.60&#1160&##160 And do you aghee to t ntheurthering wnducted because ouse of thef the security situation?

A. & We had assurarce from the the BRA and we wish to have polling to be nued.1;

“Q. & Now,were also also aware ware that there were roadblocks put up by BRA elements for stopping people coming into the polling are castr votp>

A. ـ Y6s.

Q.&#160 #160;&#160 &#160&##160& Would yold you please be aware that the BRA elements advised the people who came in to vote that if they get their hands or fingers painted and come back, they will have theirers cf?Q.&#>Q. &##160; Under those circumsrcumstanct is ble that many eligible voters in fear of their lives threatened by the BRA Elemenlements wots would not have come forward to cast their votes?

A.&ـ҈ B60; Becausecause wite without the commander’s notice, they would not do that but because the chiefs had made an arrangement for the clearance of the voters to come out and so there was no fear of all those things that BRA ordered to do.

Q. & J60; Just prior to the elections few days earlier, are you aware that there was an attack by the BRA onlians and a civilian was killed?

A. ҈& Y60; Yes, I s, I am clam clear on that but that was not related to the election.

Q. ҈ N60; No, not relatet to lee election. But you are aware that there was a killing prior to the electi/p> <#160; #1660;&##160; I 0; I am awam aware of that.

Q. & Unler aese circ circumstanmstances, you wagree me that the situation was very, very tense at that time?

A. < &1600; o o t responsiionsiies, d s, d madangement that vott voters aers are gore going to be freely coming to the polling booths. I think there was no tense because the chiefs and I myas a inato the chairman of n of the Mthe MA braA branch in Arawa, I made a clearance with the president, Francis Ona and requested him to withdraw his command to kill any voter who comes to the polling booth. So, he did listen to me and he cleared that and the voters were allowed by the commanders where they reached the message or received the message from the president. So, there was no fear after the 19^th and the rest of the polling days that was supposed to be in Arawa.

Q. & Y60; You agree that there was a standing order from the BRA Commander, Francis Ona, for eligible voters not to come and vote, and if thd thee goi be s/p> <#160; <
r0; Pusviohe had orad orad ordereddered.

.

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Q. ; There wss a inanding orderorder?

A. & T60; There was a standing order but on our request he withdrew that order and suredsafetthe v and ffice the poll polling. ing. He prHe promiseomised us d us that he is not going to do anything oing or he is not going to send his BRA’s to make roadblocks. So, with his request they opened up the roadblock at Kerei on the evening of 18^th June 1997. Therefore, we left with that message, we left Arawa for Buka on the 19^th to see Mathias Pihei if he could open up the election on the ground that we had assurance.

Q. ҈ Have you reached thed the assurance from Francis Ona into writing to at least put the electoral officials on notice that their safety was guaranteed?

A. ټ&# W a ve a vediscusiscussion wion with hith him anim and also he had radioed all the commanders around Arawa and they had received the message. And also the discn with the chiefs around Arawa and they had agreeagreed thad that commanders will guarantee the safety of polling officials and also the voters.

Q. ـ W60; When was the standing order from Francis Ona given to voters not to come and vote?

A. ; I60annoc recall the date date of his order but before the election, that he hadrder n 18/sup> June June 1997 1997 he withdraw his order.

Q. ـ W6s that order with withdrawn by Francis Ona before or after the shoot out?

A. ټ That order was give given before the shoot out.

Q. ҈&&#1thdrawn.

A.&p>A. Withdrawn before th2 af1; after the shoot out, late afternoon on the 18^th

A.ـ҈&&#160t washe 19^th after the shoot out, on the 18thup>th.

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Q. When did you do anuereqFrat Francis Ona to allow people to come to vote?

A. ټ T60; That wathe 1>th?

?

A

A.&#16. < &160; t&#After the shoot outt out

Q0;҈ ;&#16s, all right.

Polp>Polling ling was completed at about 4.30 pm becausecause thee there were no more voters around to castr vot thaticular day?

A.&p>A. ټ&##160; I60; I thinkthink there were few people at e at the polling booth because many voters were under roadblock at Kerei. Andy by the time Francis withdrew his order, polling booth was closed and the people did not have a chance of coming into polling booth.”

Evidence of Colonel Tokam Kanene who was called by the First Respondent is contained in his statement (Def. Exh. 1) as follows:

“1. I, Mr Tokam Kanene aformLily Lieutenant Colonel and Commanding Officer for the Bougainville Operations during 1996-97) hereby submit the following statement relatinthe sty sions ogainvprior to, during anng and aftd after ther the offe officialicial polling period. I was the Security Force’s Operations Commander on Bougainville and was also the chief adviser to the electoral official on Bougainville on all matters pertaining to security, my duties included:

1.1 recomme dingibosspole ng bing booth locations.

1.2 Recommending if polsing d ould be suspended due to general threat to the populace and in particular the polling officin anticulcation,

1.3 &ـ Ensuring that poll polling was conducted fairly and iand in an n an orderorderly maly manner and in accordance with the presc sequence, this was achieved by the provision of security force personnel at all polling bong booths.

2. ټ&#T60; ole followingowing is a general account of the security situation in Central Bougainville, all the information was relto methe sty force radio communication network throughout Bougainville and at allt all poll polling bing booths.

2.1 &#On thdayun5 Ju15 June 199e 1997 before the polling date for Central Bougainville, there was a shoot out at section 6 in Arawa Tod a lyoutheved to be from Paivare village just outside Arawa was shot dead.

2.2p>2.2&#160 ټ Following theg the Sunday killing in Arawa, there were sporadic shoot outs on Monday 16 June, Tuesday 17 June and early on Wednesday (18 June) morningday oling at Arawa and Central Bougainville.

2.

2.3 &##160;as repo repo reporteported on Wednesday that there was a shoot out at Wakunai station and that the Wakunai District Office was burnt down, I tasked the Security Force Commander at Wakunaieep mormed of developmelopments ents there where I continue to monitor the situation at Arawa. I was informed later that there was no further incidents at Wakunai and the chiefs were now negotiating with all parties for polling to continue.

2.4 ҈ te the tthe tense snse situation in Arawa, polling continued as per normal, security forces in Arawa reported to me at appr pm tituation was normal and that there was not many people left to vote. Polling offi officialscials in Arawa kept the polling stations opened until about 5 pm, by then there were nobody waiting to cast their votes.

2.5 & The one day pday polling in Arawa and Loloho was declared closed at the close of polling on Wednesday, this decision was based on the fact that there noelse queuing up to cast vote at both pollinolling stations and we assumed that everybverybody wody who needed to cast their vote have already done so.

3. ҈ O60; On Thursday mo ning vome village chiefs form (sic) around Arawa reported to my office at Loloho and requested my permission to conduct polling that day. I remember telling them that I will not recommenther f polbased osed on then the foll following:

3.1 &#I wasrmefothat that therethere were nobody at the polling booths late yesterday (Wed 18 June) that would warrant the polling officials to continue voting today.

3.2 &#1hat twas cnt shoo shoot outt outs in s in Arawa and the lives of the people living at the care centres including polling official and public ses werrisk,

3.3 Iy wish to pursuit the mate matter tter furthfurther ther then they should talk to the Provincial Electoral officials at Buka, my job was to advise the electoral staff of security situation in any particular area and the ultimate decision was made by the Provincial Electoral Officer. And that my advise to the electoral officials in Buka is that polling in Arawa should not continue based on the above to reasons.

He was not shaken on cross-examination.

The evidence of Laurie Patrick, another witness called by the First Respondent is contained in his affidavit sworn on 17 August and filed on 18 August 1998 but to the extent that he does not depose to cancellation or reasons thereof, I do not propose to recite its contents.

In considering the allegations in paragraphs 10, 11 and 20, I remind myself not to be misled by the picture Joseph Berenke paints of the actions of electoral officers through his affidavit but that I should make my decision based on evidence.

In paragraph 7 of his affidavit he refers to 1,550 eligible voters whose names are annexed to his affidavit. From his answers in cross-examination, it is clear that those names were supplied to him by chiefs from various villages. He said that he checked their names against the common roll but the onus being on the Petitioner, he should have produced the common roll in evidence. Otherwise the petitioner should have applied to the court to order its production which he failed to do so it is not clear whether those names were in fact on the common roll and therefore eligible voters.

Assuming that their names were on the common roll, which meant that they were eligible voters, none of them has given evidence to the effect that he or she turned up between 19 and 23 June 1997 to vote but did not do so because polling was cancelled. This evidence is crucial in my view.

Joseph Berenke also says that after the shoot out at Arawa on 18 June 1997 he went and saw Francis Ona and he (Mr Ona) withdrew the standing order to attack people who come out to cast their votes. If that was the case, no eligible voters let alone anyone from the 1550 names contained in the list obtained by Mr Berenke has come forward to say that he turned up to vote or he wanted to vote but did not do so due to cancellation of voting. Not even a chief out of the chiefs whom Mr Berenke said he took names of eligible voters from the various villages has come forward and given evidence that his people did not vote because of the cancellation. So all we have are mere assertions by Mr Berenke that people did not vote because of the cancellation.

There is also the evidence that the BRA put up road-blocks which prevented people from coming to vote. So it is quite clear that it was not only because of cancellation that people did not vote. People could have decided not to come to vote out of concern for their personal safety.

The onus being upon the petitioner, I am not satisfied that he has discharged that onus. I accordingly dismiss grounds 10, 11 and 20 of the petition.

The end result of all these is that the entire petition is dismissed with costs to the respondents to be taxed if not agreed.

Lawyer for the Petitioner: Narokobi Lawyers.

Lawyer for the First Respondent: Thirlwall, Aisi & Koiri

Lawyer for the Second Respondent: Nonggor & Associates