N7234

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 4 OF 2017

IN THE MATTER OF A DISPUTED RETURN FOR THE 
TARI-PORI OPEN ELECTORATE  

BETWEEN
JOHNNY P POKAYA
Petitioner

AND
JAMES MARAPE 
First Respondent

AND
ELECTORAL COMMISSION
Second Respondent

Waigani : Cannings J
2018: 25, 26, 27, 30 April &2, 3 May 

ELECTIONS – PETITIONS – “BRIBERY”: Organic Law on National and Local-level Government Elections, Section 215 – elements of offences of bribery (Criminal Code, Section 103). 

The petitioner filed a petition disputing the election of the first respondent in the 2017 general election. The petition contained 13 grounds, all relating to alleged acts of bribery or undue influence. A determination of objections to competency of the petition resulted in 10 of the 13 grounds being stuck out. Three grounds of the petition remained for trial.  Two of those grounds were 
dismissed at the trial, upon the Court upholding a no-case submission by the first respondent after the close of the petitioner’s case. One ground (No 1) remained. The petitioner argued that the election of the first respondent should be declared void under Section 215 of the Organic Law on National and Local-level Government Elections in that three types of bribery offences were committed by the first respondent or by another person with the first respondent’s knowledge and authority,  arising from the first respondent giving K10,000.00 cash to a local-level government president with instructions that the cash be distributed to voters to procure votes for the first respondent. The three alleged offences were: (a) bribery by the first respondent contrary to Section 103(a)(iii) of the Criminal Code; (b) bribery by the first respondent contrary to Section 103(d) of the Criminal Code; and (c) bribery by another person with the knowledge and authority of the first respondent contrary to Section 103(a)(iii) of the Criminal Code. The first respondent denied committing or having knowledge of or authorising any such offences.  

Held:

(1)	The election of a candidate will be declared void under Section 215(1) of the Organic Law if the Court finds that he has committed bribery, and may be declared void under Section 215(3) of the Organic Law if the Court finds that another person has committed bribery with his knowledge or authority. 

(2)	“Bribery” in Section 215 means one of the offences of bribery in Section 103 of the Criminal Code. The petitioner must prove “to the entire satisfaction of the Court” that at least one of those offences was committed.  

(3)	The petitioner failed to prove that either of the alleged offences (a) or (b) was committed by the first respondent as the evidence of the principal witness that the first respondent had given K10,000.00 to another person (a witness for the first respondent) to distribute at the rate of K100.00 to voters in a polling area and to tell the voters to vote for him (the first respondent), and that the first respondent indicated that he would pay a commission for that happening, was unconvincing, uncorroborated and not credible, and, as the first respondent’s witnesses denied the factual allegation, the Court was not entirely satisfied as to essential elements of the offence (‘giving’ of ‘property’).    

(4)	The petitioner failed to prove that offence (c) was committed by the alleged offender as that person did not give evidence and the evidence of the witnesses who testified receiving K100.00 to vote for the first respondent was largely hearsay (as to the source of the money and establishing a connection with the first respondent).  Further, even if it were found that the alleged offender committed bribery, there was insufficient evidence that he did so with the knowledge or authority of the first respondent. 

(5)	The petitioner failed to make out a case for declaring the election void under Sections 215(1) or (3) of the Organic Law. The petition was dismissed with costs. 

Cases cited:

The following cases are cited in the judgment:

Aide Ganasi v Sali Subam (2013) SC1277
Benny Diau v Mathew Gubag (2004) SC775
Jim Simitab v Kevin Isifu (2018) N7068
John Warisan v David Arore (2015) SC1418
Johnny Pokaya v James Marape (2018) N7152
Peter Isoaimo v Paru Aihi (2012) N4921
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
Robert Kopaol v Philemon Embel (2003) SC727
Sir Arnold Amet v Peter Charles Yama (2010) SC1064

TRIAL

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

Terminology and dates

In this judgment:

•	‘the Organic Law’ refers to the Organic Law on National and Local-level Government Elections
•	dates refer to the year 2017 unless otherwise indicated.

Counsel:

J Haiara, for the Petitioner
R Leo, for the First Respondent
L Okil, for the Second Respondent

3rd May, 2018

1.	CANNINGS J: The petitioner Johnny Pokaya filed a petition disputing the election of the first respondent James Marape as member for Tari-Pori Open in the 2017 general election. He seeks orders that the first respondent was not duly elected, that the election be declared null and void and that a by-election be held. 

2.	The petition contained 13 grounds, all  relating to alleged acts of bribery or undue influence, some allegedly committed by the first respondent, some allegedly committed by other persons. The petitioner argued that the election of the first respondent should be declared void under Section 215 (voiding election for illegal practices) of the Organic Law on National and Local-level Government Elections. 

3.	A determination of objections to competency of the petition resulted in 10 of the 13 grounds being stuck out. Three grounds of the petition, numbers 1, 4 and 7, remained for trial (Johnny Pokaya v James Marape (2018) N7152).  

4.	Grounds 4 and 7 were dismissed at the trial, upon the Court upholding a no-case submission by the first respondent in respect of those grounds. A no-case submission in respect of ground 1 failed. It is the sole surviving ground of the petition. 

GROUND 1 OF THE PETITION

5.	The gist of the allegations in ground 1 is that two days before the polling:

•	the first respondent gave K10,000.00 cash to the president of Tebi Local-level Government, Tawi Pulumaya, in the presence of five other persons, and told them to distribute the cash at the rate of K100.00 per voter to voters in the Kuku 2 polling area and to tell the voters to vote for him (the first respondent); and 

•	the first respondent indicated that he would pay a commission for that happening; and 

•	one of the persons present, David Hangube, was given K2,000.00 of the K10,000.00 cash and he used at least K800.00 of the K2,000.00 to give to his family members to get them to vote for the first respondent. 

6.	The full text of ground 1, as stated in the petition, is:

(a)	On Sunday 25 June 2017, at about 12 noon, the First Respondent at Paipali village, Tari-Urban Local Level Government (herein LLG”) gave K10,000.00 in cash to Tawi Pulumaya, the President of the Tebi LLG in the presence of Moses Minai, Howard Hamono, John Aipe, Kep Parila (the Assistant presiding officer for Kuku Ward 2) and David Hangube and said the following words to them in the process:

(i)	The First Respondent when giving the monies then uttered words to the effect that “give this money K100 to yourselves and each person especially to your family members and relatives and voters from Kuku 2 and tell them to vote for me, this is secret don’t tell anyone else”.

(ii)	In addition, the First Respondent further clarified his instructions when he uttered words to the effect that , “give K100 to each person per head from the K10,000.00 for about 100 votes and after the polling, there will be commission from me for you all in this room after the polling”.

(iii)	After Mr Pulumaya had received the monies and distributed the monies totalling K2,000.00 each to each of Mr Minai, Mr Hamono, Mr Aipe, Mr Parila and Mr Hangube the First Respondent then uttered words to the effect that, “two candidates running in this election challenging me are lawyers and should any word go out to them and if this matter goes to court, you will cut my neck and you will explain to my relatives.”

(b)	On the same day, Tawi Pulumaya in the presence of the First Respondent and with his knowledge and authority gave the said cash monies as follows:

(i)	K2,000.00 to Moses Minai, an elector from Kuku No 2 Ward;
(ii)	K2,000.00 to Howard Hamono, an elector from Kuku No 2 Ward;
(iii)	K2,000.00 to John Aipe, an elector from Kuku No 2 Ward;
(iv)	K2,000.00 to Kep Parila, an elector from Kuku No 2 Ward; and
(v)	K2,000.00 to David Hangube, an elector from Kuku No 2 Ward

(c)	On the same day in the night at around 11 pm, David Hangube then visited each of his family members and gave each of them K100 each. Amongst those Mr Hangube gave monies to were Julian Firman, Jessica Firman, Angai Dilape, Tomai Dilape, Nagai Dilape, Elawi Dilape, Kepa Piwa and Hinai Haguago. Each of these persons are eligible voters for Pendali village, Kuku 2 Ward, Tebi Local Level Government.

(d)	The First Respondent gave the K10,000.00 cash to Tawi Pulumaya in the presence of the said electors to induce the electors to vote for him.

(e)	The First Respondent gave the K10,000.00 cash to Tawi Pulumaya in the presence of electors with the intent to corruptly induce them, being persons registered on the common roll for Tari-Pori open electorate, to secure the return of the First Respondent in the Tari-Pori Electorate in the 2017 General Elections.

(f)	The First Respondent is alleged to have committed bribery pursuant to Section 103 of the Criminal Code Act Chapter 262 (herein “the Criminal Code”) and Section 215 of the Organic Law.

THREE ALLEGED BRIBERY OFFENCES

7.	Mr Haiara for the petitioner submitted that ground 1 alleges three types of bribery offences committed by the first respondent or by another person – David Hangube – with the first respondent’s knowledge and authority. Mr Haiara submitted that the petitioner had presented sufficient evidence to prove that: 

(a) an offence of bribery was committed by the first respondent contrary to Section 103(a)(iii) of the Criminal Code; 

(b) another offence of bribery was committed by the first respondent contrary to Section 103(d) of the Criminal Code; and 

(c) bribery offences were committed by David Hangube with the knowledge and authority of the first respondent contrary to Section 103(a)(iii) of the Criminal Code. 

SECTION 215 OF THE ORGANIC LAW

8.	Under Section 215 of the Organic Law “undue influence” and “bribery” are grounds on which a successful candidate’s election can be declared void. Section 215 (voiding election for illegal practices) states:

(1)	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.

(2)	A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3)	The National Court shall not declare that a person returned as elected was not duly elected or declare an election void—

(a)	on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
(b)	on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

 “BRIBERY”

9.	It is settled law that “bribery” in Section 215 of the Organic Law means one of the offences of bribery created by Section 103 of the Criminal Code (Robert Kopaol v Philemon Embel (2003) SC727, Benny Diau v Mathew Gubag (2004) SC775, Peter Wararu Waranaka v Gabriel Dusava (2009) SC980, Sir Arnold Amet v Peter Charles Yama (2010) SC1064).

10.	Section 103 (bribery) of the Criminal Code states:

A person who—

(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,

is guilty of a misdemeanour.

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

METHOD 

11.	I will now consider, in turn, the three types of bribery offences allegedly committed by or on behalf of the first respondent.

(A) BRIBERY ALLEGEDLY COMMITTED BY FIRST RESPONDENT CONTRARY TO SECTION 103(a)(iii) OF THE CRIMINAL CODE 

12.	Mr Haiara argued that this allegation is anchored in paragraph (a)(i) of ground 1 of the petition, which states:

(a)	On Sunday 25 June 2017, at about 12 noon, the First Respondent at Paipali village, Tari-Urban Local Level Government (herein LLG”) gave K10,000.00 in cash to Tawi Pulumaya, the President of the Tebi LLG in the presence of Moses Minai, Howard Hamono, John Aipe, Kep Parila (the Assistant presiding officer for Kuku Ward 2) and David Hangube and said the following words to them in the process:

(i)	The First Respondent when giving the monies then uttered words to the effect that “give this money K100 to yourselves and each person especially to your family members and relatives and voters from Kuku 2 and tell them to vote for me, this is secret don’t tell anyone else”.

13.	Mr Haiara submitted that the first respondent, by giving K10,000.00 cash to Tawi Pulumaya, in the presence of five other persons and telling them to distribute the cash at the rate of K100.00 per voter to voters in the Kuku 2 polling area and to tell the voters to vote for him, committed an offence of bribery under Section 103(a)(iii) of the Criminal Code. 

14.	As I explained in Peter Isoaimo v Paru Aihi (2012) N4921, to prove an offence under Section 103(a)(iii) the petitioner must prove that the first respondent:

1	gave, conferred or procured, or promised or offered to give or confer, or to procure or attempted to procure, to, on, or for, any person; and 

2	any property or benefit of any kind; and 

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

15.	The question is whether the petitioner has proven the existence of all these elements. At this point I digress to address the standard of proof. In Isoaimo I said that the petitioner must prove his case according to the criminal standard of proof of beyond reasonable doubt. I said the same thing recently in Jim Simitab v Kevin Isifu (2018) N7076. Mr Leo, for the first respondent, submitted that I should take the same approach here. However Mr Haiara alerted me to the recent decision of the Supreme Court (Gavara Nanu J, Yagi, & Poole J) in John Warisan v David Arore (2015) SC1418, which says something different. The Court said that the criminal standard should not be insisted on and that the relevant standard of proof is “to the entire satisfaction of the Court”. As that appears to be the most recent Supreme Court decision on this point, I feel obliged to follow it. So the petitioner must prove all elements of the offence to the entire satisfaction of the Court. 

Elements 1 and 2: did the first respondent give K10,000.00 cash to Tawi Pulumaya?

16.	The first two elements run together, so the question is whether the petitioner has proven to the entire satisfaction of this Court that the first respondent gave K10,000.00 cash to Tawi Pulumaya.

17.	Evidence for the petitioner on this question consisted of affidavit and oral evidence by Howard Hamono, one of the persons named in the petition as being present when the first respondent gave the cash.  He testified that he went with five other persons to the first respondent’s house at Paipali village and was present when the first respondent gave the cash to Tawi Pulumaya and issued instructions on what to do with the cash. It was to be used to buy votes for the first respondent. K100.00 was to be given to each voter, who upon receipt of the cash was expected to vote for the first respondent. The witness said that the first respondent promised him and the others present that if the cash was used as instructed and they successfully gave K100.00 to each of 100 voters to vote for him, they would each receive a commission from him. The witness said that he received K1,000.00 (not K2,000.00 as alleged in the petition) of the K10,000.00. He did not state what he did with the cash.

18.	In cross-examination the witness agreed that he had been a supporter of the first respondent in the 2012 and 2017 general elections but had switched allegiance to the petitioner and given evidence for the petitioner as the first respondent had not kept to his promise to pay a commission to him for following his instructions about the use of the cash. 

19.	Evidence for the first respondent on this question was given by the first respondent and by Tawi Pulumaya. Both flatly denied that the first respondent gave K10,000.00 as alleged. Both denied that there was a gathering at the first respondent’s house, as alleged, on 25 June 2017. Both denied that the first respondent gave any money to Tawi Pulumaya for the purpose of vote-buying. 

Findings 

20.	Having weighed the competing evidence and submissions, I find that I am  not entirely satisfied that the first respondent gave K10,000.00 cash or any amount of cash to Tawi Pulumaya on 25 June 2017 at Paipali or at any other time or any other place, for the following reasons:

•	Howard Hamono was not an impressive witness. Though he gave details of the alleged incident the manner in which he gave his evidence and his demeanour were not convincing. He did not clearly give the impression that he was telling the truth. He was really giving evidence of his own involvement in a criminal enterprise and admitting that he had switched allegiances because he had not been paid off what had been promised to him. This sort of evidence impaired his credibility and created an impression that he was not an honest person who would always tell the truth in court, even after swearing to do so. His evidence was uncorroborated. Though he stated, consistently with the petition, that other persons were present when the cash changed hands, none of them gave evidence. And there was no circumstantial evidence to support his evidence. There was no evidence, for example, that the first respondent was at his house on the day and at the time alleged and that certain persons were seen entering the house at that time. Furthermore, Howard Hamono’s evidence that he received K1,000.00 was inconsistent with the petition, which alleged that he received K2,000.00. His evidence was vague and begged the obvious question: what did he do with the K1,000.00 he was given? Was it used to buy votes for the first respondent? 

•	There was competing evidence from the first respondent which was straightforward, flatly denying that any cash changed hands in the manner alleged. I thought that Tawi Pulumaya was not a particularly convincing witness. But nor was he obviously untruthful. The first respondent was an impressive witness. He gave evidence of his electoral record. He stated that he had announced publicly that he would not be paying money to anybody to get them to vote for him.  

21.	The petitioner has therefore failed to prove the first two elements of the offence under Section 103(a)(iii) of the Criminal Code.

Element 3: was the “property” (the cash) given 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? 

22.	Strictly speaking it is unnecessary to address this element as the first and second elements have not been proven, which means that no offence can be established. However as counsel made submissions on this element, I will make some observations. The first point is that this element provides two alternatives. Only one need be proven. Either that the property was given in order to induce any person to endeavour to procure “the return of any person at an election”. Or that it was given in order to induce any person to endeavour to procure “the vote of any elector at an election”.

23.	Mr Haiara relied on the first of the two alternatives and argued that the alleged K10,000.00 cash was given to Tawi Pulumaya in order to induce him to endeavour to procure the return of the first respondent at the election. Mr Haiara submitted that it was unnecessary to prove that Tawi Pulumaya was an elector or that any of the persons Tawi Pulumaya passed the money to, were electors. I agree with that submission. Mr Leo and Mr Okil, for the second respondent, argued that to prove any offence under Section 103 it must be proven, in every case, that the person allegedly bribed was an elector. They relied on the decision of the Supreme Court (Davani J, David J, Kassman J) in Aide Ganasi v Sali Subam (2013) SC1277 in support of that argument. However, I think that they have over-generalised what the Court was saying. In my view the Court was not saying that whatever type of offence is alleged under Section 103, it must be proven that the recipient of the property or benefit was an elector. Each case is different. Much depends on which particular offence is being relied on by the petitioner. Here, it is the first of the alternative parts of paragraph (iii) that is relied on. It makes no mention of the term “elector”. If I had found the first two elements of the offence proven, and accepted the petitioner’s evidence, I would have had no difficulty in concluding that the cash had been given to Tawi Pulumaya in order to induce him to endeavour to procure the return of the first respondent at the 2017 general election. And an offence under Section 103(a)(iii) of the Criminal Code would have been proven. 

24.	I add that if the alternative part of paragraph (iii) had been relied on, it would have been necessary for the petitioner to prove that Tawi Pulumaya was an elector. This would have been difficult to prove. There was evidence given by two Electoral Commission officials (Grace Badira, Enrolment Manageress, and Jack Walara, Returning Officer) as to the common Roll used for Tari-Pori Open in the 2017 general election. The name “Tawi Pulumaya” does not appear on the Roll. There was evidence that Tawi Pulumaya uses another name, “Thomas Jape”, which is on the Roll. But I would have found – if it was necessary to make a finding – that that evidence was insufficient to show that Tawi Pulumaya was an “elector” in the relevant sense.

Conclusion re first alleged bribery offence 

25.	The petitioner has failed to prove that the first respondent gave K10,000.00 cash to Tawi Pulumaya at the time or place or in the manner alleged. He has failed to prove the first two elements of the offence. He has therefore failed to prove that the first alleged bribery offence was committed by the first respondent.   

(B) BRIBERY ALLEGEDLY COMMITTED BY FIRST RESPONDENT CONTRARY TO SECTION 103(d) OF THE CRIMINAL CODE 

26.	Mr Haiara argued that this allegation is anchored in paragraph (a)(ii) of ground 1 of the petition, which states:

(a)	On Sunday 25 June 2017, at about 12 noon, the First Respondent at Paipali village, Tari-Urban Local Level Government (herein LLG”) gave K10,000.00 in cash to Tawi Pulumaya, the President of the Tebi LLG in the presence of Moses Minai, Howard Hamono, John Aipe, Kep Parila (the Assistant presiding officer for Kuku Ward 2) and David Hangube and said the following words to them in the process: …

(ii)	In addition, the First Respondent further clarified his instructions when he uttered words to the effect that , “give K100 to each person per head from the K10,000.00 for about 100 votes and after the polling, there will be commission from me for you all in this room after the polling”.

27.	Mr Haiara submitted that the first respondent, by giving specific instructions as to how the K10,000.00 cash given to Tawi Pulumaya was to be used, advanced money for the use of other persons with the intent that it be used for improper purposes, in particular to procure his return at the 2017 general election, and therefore committed an offence under Section 103(d) of the Criminal Code. 

28.	As I explained in Peter Isoaimo v Paru Aihi (2012) N4921, to prove an offence under Section 103(d) the petitioner must prove that the first respondent:

1	. advanced or paid any money to or to the use of any other person; and 

2	.  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.  

Findings 

29.	The question is whether the petitioner has proven the existence of both these elements. The answer is driven by my findings of fact regarding the first alleged bribery offence. The petitioner has failed to prove that the first respondent gave any cash of any amount at any time or any place, let alone that he gave him K10,000.00 cash at Paipali on 25 June 2017. He therefore has failed to prove the first element. And it follows that he has failed to prove the second element. 

Conclusion re second alleged bribery offence 

30.	The petitioner has failed to prove that the second alleged bribery offence was committed by the first respondent.   

(C) BRIBERY ALLEGEDLY COMMITTED BY DAVID HANGUBE WITH KNOWLEDGE AND AUTHORITY OF FIRST RESPONDENT CONTRARY TO SECTION 103(a)(iii) OF THE CRIMINAL CODE
	
31.	Mr Haiara argued that this allegation is anchored in paragraph (c) of ground 1 of the petition, which states:

(c)	  On the same day [25 June 2017] in the night at around 11 pm, David Hangube then visited each of his family members and gave each of them K100 each. Amongst those Mr Hangube gave monies to were Julian Firman, Jessica Firman, Angai Dilape, Tomai Dilape, Nagai Dilape, Elawi Dilape, Kepa Piwa and Hinai Haguago. Each of these persons are eligible voters for Pendali village, Kuku 2 Ward, Tebi Local Level Government.

32.	Mr Haiara submitted that David Hangube, who was present at the gathering on 25 June 2017 when the first respondent gave K10,000.00 cash to Tawi Pulumaya and who received K2,000.00 of that K10,000.00, committed at least four bribery offences under Section 103(a)(iii) of the Criminal Code by giving K100.00 to each of Julian Firman, Elawi Dilape, Jessica Firman and Agai Dilape and telling them that the money was coming from the first respondent and that they should vote for him at the election. Mr Haiara focussed on those four, out of the eight persons alleged in the petition to have received K100.00 from David Hangube, as they each gave oral evidence at the trial.  

33.	As explained earlier, under Section 103(a)(iii) the petitioner must prove that the first respondent:

1	gave, conferred or procured, or promised or offered to give or confer, or to procure or attempted to procure, to, on, or for, any person; and 

2	any property or benefit of any kind; and 

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

34.	The question is whether the petitioner has proven the existence of all these elements, to the entire satisfaction of the Court. 

Elements 1 and 2: did David Hangube give K100.00 cash to the four petitioner witnesses?

35.	The first two elements run together, so the question is whether the petitioner has proven to the entire satisfaction of this Court that David Hangube gave K100.00 to any one or more of the four petitioner witnesses.

36.	Evidence for the petitioner on this question came from Julian Firman, Elawi Dilape, Jessica Firman and Agai Dilape.  They each testified that they received K100.00 cash from David Hangube who told them that the cash was coming from the first respondent and that they should vote for him.

37.	Evidence for the first respondent on this question was given indirectly by the first respondent and by Tawi Pulumaya. Both flatly denied that the first respondent gave K10,000.00 to Tawi Pulumaya, in the presence of David Hangube as alleged. Both denied that there was a gathering at the first respondent’s house, as alleged, on 25 June 2017. Both denied that the first respondent gave any money to Tawi Pulumaya for the purpose of vote-buying. 

Findings 

38.	Having weighed the competing evidence and submissions, I am  not entirely satisfied that David Hangube gave K100.00 cash or any amount of cash to any of the petitioner witnesses on 25 June 2017 or at any other time, for the following reasons:

•	Though the petitioner witnesses were not clearly unimpressive, their evidence was difficult to believe as David Hangube did not give evidence and there was no evidence linking David Hangube to the first respondent. I have already concluded (in relation to the first alleged bribery offence) that there is insufficient evidence to find that a gathering took place in the manner alleged, in which David Hangube was given K2,000.00 of the K10,000.00 given to Tawi Pulumaya. Furthermore the evidence of the four witnesses who testified receiving K100.00 to vote for the first respondent was largely hearsay (as to the source of the money and establishing a connection with the first respondent).  

•	There was competing evidence from the first respondent which was straightforward, flatly denying that any cash changed hands in the manner alleged. 

39.	The petitioner has therefore failed to prove the first two elements of the offence under Section 103(a)(iii) of the Criminal Code. 

Element 3: was the “property” (the cash) given 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? 

40.	Strictly speaking it is unnecessary to address this element as the first and second elements have not been proven, which means that no offence can be established. However as counsel made submissions on this element, I comment that if I had found the first two elements of the offence proven, and accepted the petitioner’s evidence, I would have had no difficulty in concluding that the cash had been given to the four petitioner witnesses in order to induce them to endeavour to procure the return of the first respondent at the 2017 general election. And an offence under Section 103(a)(iii) of the Criminal Code would have been proven. 

Conclusion re third type of alleged bribery offence 

41.	The petitioner has failed to prove that David Hangube gave K100.00 cash to the four petitioner witnesses to get them to vote for the first respondent. He has failed to prove the first two elements of the offence. He has therefore failed to prove that any of the third type of alleged bribery offences was committed by David Hangube.

42.	I add that if such offences had been proven, this sub-ground of the petition would still have failed as there was insufficient evidence that any such offences were committed by David Hangube with the knowledge or authority of the first respondent. The requirements of Section 215(3) of the Organic Law would not have been met.

CONCLUSION

43.	All grounds of the petition have failed. That is a just and sufficient reason, pursuant to Sections 212(1)(i) and 212(3) (powers of court) of the Organic Law, to dismiss the whole petition. Costs will follow the event: the petitioner will pay the respondents’ costs. 

ORDER

44.	The formal orders of the Court are:

(1)	The petition is wholly dismissed.

(2)	The petitioner shall, subject to any specific order for costs made during the course of the proceedings, pay the respondents’ costs of the petition.

(3)	The Registrar shall forthwith refund to the petitioner the security for costs deposited under Section 209 of the Organic Law on National and Local-level Government Elections.  

(4)	The Registrar shall under Section 221 of the Organic Law on National and Local-level Government Elections promptly forward to the Clerk of the National Parliament a copy of this order.  

Judgment accordingly.

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Haiara’s Legal Practice: Lawyers for the Petitioner
Leo Lawyers: Lawyers for the First Respondent 	
Kimbu & Associates Lawyers: Lawyers for the Second Respondent