Simitab v Isifu [2018] PGNC 13; N7076 (29 January 2018)

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ELECTIONS – PETITIONS – “bribery”: Organic Law on National and Local-level Government Elections, Section 215 – elements of offences of bribery (Criminal Code, Section 103) – relevance of adherence to customary practices and obligations during election campaign period.

The petitioner challenged the return of the first respondent as successful candidate on five grounds of bribery under Section 215(1) of the Organic Law on National and Local-level Government Elections. It was alleged that the first respondent committed bribery under Sections 103(a) (iii) and 103(d) of the Criminal Code. Four grounds alleged that three days before the scheduled polling day the first respondent went to four villages with his campaign team and at each village staged a campaign event which involved him promising a pig to the villagers and making a campaign speech in which he said that the villagers should eat the pig he was giving them and vote for him. The petitioner argued that on each of these occasions the first respondent was abusing a local custom to hide what he was really doing: providing an inducement to electors to vote for him, ie bribing them. The other ground alleged that the first respondent met with three of his campaign committee members and handed K5,000.00 cash to each of them and instructed them to go out and use the cash to buy votes.

Allan Ebu v Roy Aua Evara [1983] PNGLR 201
Benny Diau v Mathew Gubag (2004) SC775
Daniel Tulapi v Aiya James (2013) N5323
Jim Simitab v Kevin Isifu (2018) N7068
Paru Aihi v Peter Isoaimo (2013) SC1276
Peter Isoaimo v Paru Aihi (2012) N4921
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
Pila Niningi v Francis Awesa (2013) N5322
Powes Parkop v Wari Vele (No 3) (2007) N3322
Raymond Agonia v Albert Karo [1992] PNGLR 463
Robert Kopaol v Philemon Embel (2003) SC727
Sir Arnold Amet v Peter Charles Yama (2010) SC1064

This was the trial of an election petition disputing the validity of an election.

Albert Kongomori – first respondent witness # 5
Arapesh – language of But ring villages
Bruce Samban – former Premier, ESP
Caspar Miesi – petitioner witness #5
Chris Snowol – petitioner witness #10
David Saranduo – first respondent supporter
Electoral Commission – second respondent
Esther Igo – another candidate
Ezekiel Aki – first respondent supporter
Henry Wosem – first respondent witness #1
Jack Solomon – petitioner witness #1
Jackson Kwaigau – petitioner witness #8
Jacob Kwaigau – petitioner witness #9
James Seiyam – first respondent witness #12
Jeffery Bial – petitioner witness #4
Jeffery Blasagi – petitioner witness #2
Jim Simitab – the petitioner, witness #11
John Samut – village leader
John Tobi – petitioner witness #6
Joiclyn Blasagi – petitioner witness #3
Joseph Gabut – another candidate
Joyce Wato – first respondent supporter
Julius Aki – first respondent witness #6 aka Julius Wawojin
Kevin Isifu – the first respondent, witness #3
Lilian Kwaigau – first respondent witness #4
Moses Manwau – another candidate
Nancy Abial – woman referred to in evidence
Petrus Budul – first respondent witness #7
Robert Bagimeja – first respondent witness #8
Robert Ninikin – first respondent witness #2
Samson Kabu – petitioner witness #7
Sopa Chimi – first respondent witness #13
Stanley Mutz Samban – another candidate
Sylvester Pokojam – another candidate
Theo Wimbu – first respondent witness #10
Tobias Narun – first respondent witness #10
Tony Malafen – first respondent witness #9
Weihigin Naimini – first respondent witness #11

Places
Aitape – town, West Sepik Province
Arohimi – village re ground 4 of petition
Banak – village
Benjen – village in Boikin-Dagua LLG area
Boiken-Dagua – Local-level Government area
Boikin – village
Boutique Hotel – hotel in Wewak
But – village
But Ring – village group
Chamba – village in Boikin-Dagua LLG area
Dagua – village
Dogu – village
Hareng – village in Boikin-Dagua LLG area
Hawain – Local-level Government area
Hawanumbo – village
Karkar Island – island, Madang Province
Kauk – village
Kreer Heights – place in Wewak
Kuberem – village
Lowon No 1 – village re ground 2 of petition
Lowon No 2 (aka Poiam) – village re ground 1 of petition
Magobin – village
Maprik – town, District, East Sepik Province
Neimengua – village in Boikin-Dagua LLG area
Passam – place, Wewak District
Poiam (aka Lowon No 2) – village re ground 1 of petition
Pos – village
Sapauaim – village
Siro – village
Sowom – village, near Ex-servicemen’s settlement
Sowom Ex-servicemen’s settlement – place re ground 5 of petition
St Xavier’s – school
Supaim – village
Surenou – village
Surumba – village, polling place
Umamum – village re ground 3 of petition
Wainjo – village re ground 6 of petition
Wewak – town, District
Woginara No 1 – village
Yangoru – District, East Sepik Province
Yawasoro – village

This was the trial of an election petition disputing the validity of the election of the sitting member at a general election.

M Murray, for the Petitioner
A W Jerewai, for the First Respondent
H Nii & M Ninkama, for the Second Respondent

If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind—

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) on account of any person acting or joining in a procession during an election; or

(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,

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

Yupla olgeta kaikai displa pik na givim mi ol Namba wan vout bilong yupla l na ol Namba tu vout givim long Kevin Isifu.

[You can all eat this pig and vote me as your first preference and your second preference to Kevin Isifu.]

P1	Jack Solomon	Candidate, Lowon (No 1) village
Evidence: The first respondent said ‘eat this pig and give your number 1 vote to me, but if you have another candidate you can give your second preference to me’ – presenting a pig to the villagers was not part of the local custom of laying a stick to seek a passage to make a speech – that custom does not apply in the election campaign period – it was bribery. The first respondent was bribing people on the pretext that he was adhering to custom – he was not using the Selip custom properly as he is not a leader from that area. He (the witness) received the pig that was promised to him on 20 June at Poiam – he was put in an awkward situation by the first respondent who, by giving him a pig, bribed him to say to the Lowan No 1 villagers when the pork was distributed: ‘You can all eat this pig and vote me as your first preference and your second preference to Kevin Isifu.’ The first respondent had not sought his permission to give him the pig. He (the witness) was a candidate and he did not donate any pigs during his campaign – the first respondent was the only candidate to bribe electors with pigs in that area. Distributing the pork to the villagers was in itself bribery because when the villagers were eating the pork they were aware that the pig had been donated by the first respondent and it changed their mind about who to vote for – they felt obliged to vote for the first respondent. In cross-examination he reiterated that the custom that the first respondent purported to rely on did not apply in the campaign period as it only amounts to bribery. On the issue of whether Robert Ninikin spoke after laying the stick, the witness said ‘no, he did not’ – the first respondent did all the talking.
P2	Jeffery Blasagi	Campaign manager for Jack Solomon, Lowon (No 1) village
Evidence: He was present – there were about 200 people at the gathering – the first respondent said ‘eat this pig and give your number 1 vote to me, but if you vote for Jack Solomon you can give your second preference to me’ – presenting a pig to the villagers was not part of the local custom of laying a stick to seek a passage to make a speech – that custom does not apply in the election campaign period – it was bribery. Henry Wosem (a committee member for the first respondent) was present and gave him K1,000.00 for his wife’s pig – that was obviously a bribe as the pig was only worth K500.00.
P3	Joiclyn Blasagi	Wife of Jeffery Blasagi, Lowon (No 1) village
Evidence: She asked Henry Wosem to pay her K500.00 for her pig but he gave her (through her husband, Jeffery) K1,000.00 – she took the K1,000.00 but is of the view that it was a bribe – her pig was slaughtered on the polling day, 29 June – she gave her #2 vote to the first respondent and her #3 vote to the petitioner – she was not going to vote that way but because she had received cash and pork from the first respondent she changed her voting pattern – when her pig was slaughtered, Jack Solomon was present and he told the Lowon No 1 villagers to give their #2 votes to the first respondent as he had donated the pig.
P4	Jeffery Bial	Villager, Lowon (No 1) village
Evidence: He was present on 21 June – the first respondent was welcomed by a sing-sing group and carried on a chair to the grandstand – Robert Ninikin laid the stick and the first respondent did the talking – the first respondent said ‘eat this pig and give your number 1 vote to me, but if you have another candidate you can give your second preference to me’. Henry Wosem paid him K1,000.00 for his pig – it was not worth nearly that much as it was a very small pig – the witness indicated that the pig had a height of only 30 cm – the extra cash he received was a bribe and presenting a pig to the villagers was not part of the local custom of laying a stick to seek a passage to make a speech – that custom does not apply in the election campaign period – it was bribery.

R1	Henry Wosem		Campaign committee member for the first respondent
Evidence: Robert Ninikin laid the stick and made a short speech, calling out to the community to please accept the stick and allow the first respondent to take the stage – the village chief, John Samut, got the stick and welcomed the first respondent and invited him to speak – the first respondent did not tell the people to eat the pig and vote for him – he only told them if they agreed with his policies they should vote for him and if they had another candidate in mind then they could give him their #2 or #3 vote. He denied the claim by Joiclyn Blasagi that he paid her a bribe when purchasing her pig – he gave her the price she asked for – it was a big, mature pig, as it had to be as it was being used as part of custom, and it was worth K1,000.00. In cross-examination he reiterated that the custom the first respondent was using applied at all times, including during the campaign period – the first respondent was obliged to comply with custom, otherwise he would not have been allowed to give his speech in the village. He agreed that there was a custom called Selip but said that it is only used when a clan leader dies and a replacement needs to be appointed: that is when the pig is passed along the villages – Selip is different to the custom complied with by the first respondent, which is about clearing a passage to give a visitor or outsider the right to hold a gathering and speak.
R2	Robert Ninikin		Campaign manager for the first respondent
Evidence: He is a customary and community leader in the But Ring area – he was obliged to comply with the local custom and so was the first respondent – he had laid two sticks the previous day at Poiam, which were received by the village chief, Petrus Budul, who accepted them, and this paved the way for the first respondent to give his campaign speech. The same custom was followed at Lowon No 1 – he laid a stick and made a short speech seeking permission from the village chief, John Samut, for the first respondent to speak – the first respondent gave his campaign speech – the first respondent did not tell the people to eat the pig and vote for him – the first respondent only spoke about his policies. He ensured that the pig was provided to the village within a few days after their visit – he was not involved in slaughtering the pig or distribution of the pork. In cross-examination he reiterated that he and the first respondent were obliged to comply with custom – it was not a matter of providing a pig and expecting something in return, such as votes for the first respondent; it was a matter of compliance with custom – if they had gone empty-handed to these villages, the first respondent would not have been allowed to speak – he denied that he and the first respondent had devised this scheme of bribing voters on the pretext of complying with custom – he had no choice: if he did not comply with custom he would not have been allowed to bring his candidate into the village – the electors gave the first respondent their votes because of his policies, not because of the pig.
R3		Kevin Isifu	First respondent
Evidence: He relied on Robert Ninikin, his campaign manager for the But Ring area, to advise him on what had to be done to comply with local custom – Mr Ninikin explained that the local people do not accept people from outside easily, so Mr Ninikin arranged his visits to the villages and it was the job of Mr Ninikin to see that the customary rituals were followed – he (the witness) was not really interested in the customary rituals, he wanted to comply with them but his main focus was on his campaign – pigs are an important part of custom in all parts of East Sepik Province but in the But Ring area pigs are especially important, he was informed, as without promising a pig you will not go into a village to campaign – he did not at any stage tell the people to eat the pig and think of him or vote for him – he gave an awareness session on the limited preferential voting system as part of his speech and told the villagers how important it was to fill out their ballot papers with 1, 2 and 3. Mr Ninikin provided the pigs but he (the witness) is responsible for the ultimate cost of the pigs – in that sense it is true to say that he donated the pigs – he is very much aware of the law on bribery and if he thought that what he was doing was bribery he would not have done it – he consulted Mr Ninikin and other customary leaders who advised him on what had to be done to comply with custom – it was the only way for him to campaign in the But Ring area – he put to the villagers ‘if you agree with my policies, give me your #1, #2 or #3 votes’ but he made no reference to the pigs – he was not bribing anyone and it did not occur to him that what he was doing might be regarded by some people as vote-buying.

Did the first respondent commit bribery under Section 103(a)(iii) of the Criminal Code?

3 in order to induce any person to endeavour to procure the return of the first respondent at the election or the vote of any elector at the election.

100. Taking into account the seriousness of the offence of bribery and its serious adverse consequence on our society, and the purpose of enacting the provisions of Section 103 of the Criminal Code and Section 215 of the Organic Law on Elections, I am respectfully of the view that the decision and approach in Genia v Temu [EP 33 of 2002, 05.03.03, Los J, unreported] and Thompson v Pokasui [August 1989, unreported] are correct. Just because a culture or custom as come into existence, does not necessarily follow that it is right. It is time now to identify what kind of conducts or activities are acceptable in our country during election times and which kinds of conduct and behaviour are not acceptable. As noted campaigns outlining a candidate’s qualifications, experience preferably as managers as well as their good standing and integrity and what are their visions for their respective electorates and our nation as a whole should be encouraged. There should be an encouragement of debates on policies such those we often see take place in the USA and our closest neighbour, Australia.

101. There should be a total eradication of giving of any gifts or a throwing up of big feasts and parties around election and campaign periods. For regardless of how convincing an argument is presented to the contrary, most if not all of these are intended to promote the giver’s election. Those who seek elections know that if they do not give these so called gifts, parties and feasts or the so-called discharge of a customary obligation, they would not be elected. So their giving is because of the wish and desire to being elected. If it were not for that, they would not be engaged in such activities at the first place, unless they are under some sort of compulsion, which they should be required to establish by appropriate evidence. Then once elected because of the gifts and favours they have extended to people, there is always the temptation in the elected member looking for ways and means of recovering the substantial amounts of money he has outlaid to secure his election victory so much to the point of neglecting his electorate’s and his electoral duties. The end result unfortunately, is resulting in once upon a time, good local and district townships and government posts and even bigger towns and cities being neglected. Potholes, tall grass, broken down bridges and public buildings abound because no attention is being given to them by the elected leaders who are most of the time living outside their electorates. The whole system of public services from the headquarters in Port Moresby down to the rural communities appear not to be in existence save only for those who are able to bribe their way through. Voters have now smartened up, although something, we as a nation ought not to be proud of but denounce it in the strongest terms possible. The voters know that, once a person is elected, he or she would be careless about the people and hence the electorate’s needs and he or she would go and make their home in Port Moresby or elsewhere. Given that, it is quite commonplace now for electors to vote for whoever pays them the highest price.

102. Giving gifts and throwing up of big or small parties and feasts are good. However what makes them wrong is when they are employed to influence an election outcome in the case of an election setting. If people want to give gifts or throw up parties there should be no problem if they take place well before an election year and certainly not immediately before the issuance of writs, commencement and during campaigning and election periods. We should be encouraging better planning by those who wish to seek to lead our nation and allow for a clean election period where the integrity of those standing for elections and their policies or plans for their respective electorates and how they propose to achieve those plans should be left to be the focus during the election period. Allowing this so-called culture or custom of festivities, parties and giving of gifts will continue to allow for a muddying up of the election period and divert attention away from the important issues of a candidate’s, integrity, policies or plans for his electorate and how he or she proposes to achieve them. This is the only way to prevent what has fast become a cash based election where the more money a person is prepared to throw away in cash handouts, parties, festivities and other benefits, the more likely they are to get elected.

103. I appreciate that, our cultures and customs are preserved under our Constitution by virtue of Schedule 2.1(1). However, I note this is not an open licence. It is subject to Schedule 2.1(2) which qualifies that a custom that is inconsistent with the Constitution or a written law and the general principles of humanity is not to be adopted. In the case of the custom of giving of gifts, parties and festivities and other benefits with eyes fixed on being elected at an election during election periods are clearly outlawed by Section 103 of the Criminal Code and Section 215 of the Organic Law on Elections, for the serious impact this has against the development and advancement of our nation. This is thus not a good custom which is rightly being proscribed by the provisions in question.

111. The custom and practice of staging feasts, handing out gifts, pigs, shell monies or other forms of traditional wealth during ceremonies is an integral and entrenched part of culture in many of our traditional communities and societies. This custom is practised mainly during ceremonies such as marriage, death, mediation, compensation, initiation, etc. It had tremendous value and benefit to individuals, families, and clan groups and the larger communities and societies in general in terms of strengthening and harnessing relationships, peace and good order.

112. Unfortunately and sadly, with the advent of modernization and our desire for change and to adopt a new order in our constitutional system of government through the electoral system and process, some of our good culture, tradition and practice have been misapplied or misused. One such culture is the practice of the big man handing out goodies during ceremonies and festivities. Sadly, this culture has found roots and become entrenched during the electoral period.

113. A review of National and Supreme Court decisions relating to election petitions makes it plain that there are indeed many cases involving bribery, undue influence and illegal practice. It appears the number of these cases, in particular bribery cases, is on the rise following each election period. This is indeed a very worrying trend. In many of these cases the big man culture of handing out monies and other goodies during the election period continue to feature strongly and it seems despite the Court’s emphatic rejection and criticism of such practice, it continues to flourish and in some cases adopted new styles and forms. Such practice is a serious threat to a citizen’s right to participate in a free, fair and democratic electoral process. It has huge potential for diminishing the credibility and integrity of the election process. In this regard, I respectfully agree with Kandakasi J that such practice is inconsistent with the Constitution, the Organic Law and the Criminal Code and therefore should be condemned and rejected outright. In my view, unless the circumstances and context clearly suggest otherwise, a Court hearing a petition is entitled to form its own view based on the available evidence on such practice with a degree of suspicion and cynicism.

Did the first respondent commit bribery under Section 103(d) of the Criminal Code?

GROUNDS 3, 4 & 5: UMAMUM VILLAGE, AROHIMI VILLAGE AND SOWOM EX-SERVICEMEN’S SETTLEMENT

Yupla olgeta kaikai displa pik na givim mi ol Namba wan vout na sapos yu stap wantaim Jack Solomon orait givim ol Namba wan vout bilong yupla long em na ol Namba tu givim i kam long mi.

[You can all eat this pig and vote me as you first preference and if you are supporting Jack Solomon, then vote for him as your first preference and vote for me as your second preference.]

Did the first respondent commit bribery under Section 103(a)(iii) of the Criminal Code?

Did the first respondent commit bribery under Section 103(d) of the Criminal Code?

Yupla kisim moni na go baim Namba wan vout blong mi. Sopos yupla no nap baim Namba wan vout blong mi orait yupla mas baim Namba tu vout blong mi.

[You can take this money and go buy the number 1 vote for me. If you cannot buy the number vote for me then buy the second vote for me.]

Did the first respondent commit bribery under Section 103(a)(iii) of the Criminal Code?

Did the first respondent commit bribery under Section 103(d) of the Criminal Code?

Judgment accordingly.
____________________________________________________________

Murray & Associates Lawyers: Lawyers for the Petitioner
Jerewai Lawyers : Lawyers for the First Respondent
Harvey Nii Lawyers : Lawyers for the Second Respondent

National Court of Papua New Guinea

Simitab v Isifu [2018] PGNC 13; N7076 (29 January 2018)