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Airahui v Kenilorea [2020] SBHC 14; HCSI-CC 279 of 2019 (23 March 2020)

HIGH COURT OF SOLOMON ISLANDS


Case name:
Airahui v Kenilorea


Citation:


Date of decision:
23 March 2020


Parties:
James Airahui, Tony Aipuruiu and John Sunima V Peter Kenilorea Junior, Attorney General


Date of hearing:
2 to 4 March 2020


Court file number(s):
279 of 2020


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Bird PJ


On appeal from:


Order:
Allegation 1,2 and 3 against First Respondent is dismissed
Allegation 1against the Second and Fourth Respondents is dismissed
Allegation 2 against the Second and Fifth Respondent is dismissed
Mr. Peter Kenilorea Junior is the duly elected Member of Parliament for East Are ‘are Constituency
In accordance with section 111 (5) of the Electoral and Rule 35 (1) of the Electoral Petition Rules 2019, the court will give a certificate of its decision to the Electoral Commission, Governor General and the Speaker of Parliament in due course
Cost against the Petitioner


Representation:
Mr. M Hauri’i for the Petitioner
Mr. A Radclyffe for the First Respondent
Mr. S Banuve and Mrs V Muaki for the Second to Seventh Respondents


Catchwords:



Words and phrases:


Legislation cited:
Electoral Act 2018, s66 (1) National Parliament (Electoral Provisions) Act (87) (repealed), s138
Electoral Act 2018, s5, 9, 112, s126, Electoral Act 2018, s66 (1) and (2) (repealed ),s129 , Black’s Law Dictionary, Electoral Act 2018 , s112 (1) and (2), s 83 (3), s101 (2) (a), 82 (1), s 83 (1) (2) (3) (d), s108 (2), s111 (5), Electoral Petition Rules 2019, R35(1)


Cases cited:
Morgan and others v Simpson and others [1974] 3 ALL E R 722, Temahua v Vagara cc 282 of 2019, Lilo v Tanagada and Attorney General cc 281 of 2019

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION


Civil Case No. 279 of 2019


BETWEEN:


JAMES AIRAHUI, TONY AIPURUIU AND JOHN SUNIMA
Of East Are ‘are Constituency, Malaita Province


AND:


PETER KENILOREA JUNIOR
Of Are ‘are Constituency returned as being duly elected Member of Parliament for East Are ‘are Constituency in 2019 National General Election
First Respondent


AND:


ATTORNEY GENERAL
(Representing ELECTORAL COMMISSION, ELECTORAL MANAGER MALAITA PROVINCE, DENIS TAFEA and ROBERT HIRI
Returning Officer and Assistant returning Officer respectively Appointment Pursuant to Section 26 of the Electoral Act 2018)
Second Respondent


AND:


ATTORNEY GENERAL
(Representing APOLLOS TAHO Presiding Officer Tari’una polling station, appointed pursuant to Section 27 of the Electoral Act 2018)
Third Respondent


AND:


ATTORNEY GENERAL (Representing JOHN UIIPA’EWA KAMUARAENA
Presiding Officer Honoa polling station Appointment pursuant to Section 27 of the Electoral Act 2018)
Fourth Respondent


AND:


ATTORNEY GENERAL
(Representing ANDREW OROHANIMAE RANDY presiding officer for Rara polling Station, appointed pursuant to Section 27 of the Electoral Act 2018)
Fifth Respondent


AND


ATTORNEY GENERAL
(Representing JOHN BOSCO NAOHANE Presiding Officer for Potoani’u polling station, appointed pursuant to Section 27 of the Electoral Act 2018)
Sixth Respondent


AND:


ATTORNEY GENERAL
(Representing SAMUELE MAETARA Presiding officer for Sawarokau polling station, appointed pursuant to Section 27 of the Electoral Act 2018)
Seventh Respondent


Date of Hearing: 2 to 4 March 2020
Date of Judgment: 23 March 2020


Mr. M Hauri’i for the Petitioner
Mr. A Radclyffe for the First Respondent
Mr. S Banuve and Mrs Muaki for the Second to Seventh Respondents

JUDGMENT

  1. On 17th May 2019, the petitioners namely James Airahui, Tony Aipuruiu and John Sunima filed an election petition against Peter Kenilorea Junior and the Attorney General in their various representative capacities.
  2. In their election petition filed on 17th May 2019, the Petitioners alleged three instances of election bribery against the First Respondent.
  3. The first instance of election bribery was alleged to have been committed by the First Respondent by his agent or supporter at Manawai Village. This allegation is contained in paragraphs 13 and 14 of the election petition. The alleged bribery complained of was the giving of a solar kit (120 watts solar panel and accessories) to Mrs. Unity Ropori.
  4. The second instance of election bribery complained of by the Petitioners is contained in paragraphs 15 and 16 of the election petition. It was alleged that on 3rd April 2019, at Manawai Village, the First Respondent by his agent and supporter Mr. Rexley Horimae had given $300.00 to Allan Kiniwasia and directed him to vote for the First Respondent. It is alleged that in doing so, Mr. Horimae was guilty of bribery by corruptly giving the $300.00 to Allan Kiniwasia.
  5. Paragraphs 17, 18 and 19 of the election petition raised the third instance of bribery allegation against the First Respondent. It was alleged that on 2nd April 2019 at Rioa’oa’o Village, the First Respondent and his agent or supporter, Mr. Andrew Ainiwari was guilty of bribery by corruptly giving Walter Fugui the sum of $500.00 and directing him to vote for the First Respondent.
  6. In addition to the above, the Petitioners petition under paragraph 20 to paragraph 83 had raised a total of 9 allegations against the Attorney General were representing the Second to the Seventh Defendants.
  7. The first four allegations in paragraphs 20 to 56 is against the Second Respondent. The first one is contained in paragraphs 20 to 29 of the election petition. It was allegedly committed by the Second Respondent on 3rd April 2019 at Honoa Polling Station. The allegation was the accepting of ballot papers without the official stamp by the Assistant and Returning Officers.
  8. The second allegation is contained in paragraphs 30 to 39 of the petition that relates to Rara Polling Station whereby it was alleged that on 5th April 2019, the Returning Officer had altered the official record of the total votes cast at Rara Polling Station.
  9. The third allegation contained in paragraphs 40 to 49 of the petition alleges that the Returning Officer and Election Manager had erroneously allowed counting of Rara ballot box and ballot papers without the marked copy of register of voters used by the Presiding Officer.
  10. The fourth allegation as contained in paragraphs 50 to 56 of the petition alleges that on 3rd April 2019, the Assistant Returning Officer instructed and ordered the Presiding Officer in charge to close the Sawarokau Polling Station at 4.30pm, before 5pm.
  11. The fifth allegation is contained in paragraphs 57 to 60 of the petition and it is made against the Third Respondent. It is alleged by the Petitioners that on the 3rd April 2019, the Third Respondent, one Mr. Apollos Taho, an agent and supporter of the First Respondent had without lawful authority, deliberately impersonated, interfered and forged George Ohosioa by ticking the box for Peter Kenilorea Junior on the ballot paper and directed him to drop the ballot in the ballot box.
  12. The allegation contained in paragraphs 61 to 65 is made against the Fourth Respondent. It is alleged that on 3rd April 2019, the Presiding Officer at Honoa had without lawful authority failed to stamp the official mark on the ballot papers issued to the electors who voted at Honoa from 7.00 am to 12 pm.
  13. The allegation contained in paragraphs 66 to 73 was made against the Fifth Respondent. It was alleged that on 3rd April 2019, the Fifth Respondent had failed to use the proper voters mark list with photos for identification purposes at the Rara Polling Station.
  14. The allegations against the Sixth Respondent are contained in paragraphs 74 to 78 of the petition. It was alleged by the Petitioners that on 3rd April 2019, during the election process, the Presiding Officer was guilty of fraud when he allowed an unauthorised list of electors who were not in the published voters list to cast their votes at Potani’u Polling Station.
  15. The Petitioners allegation against the Seventh Respondent is outlined in paragraphs 79 to 83 of their petition. It was alleged by the Petitioners that on the 3rd April 2019, at Sawarokau Polling Station, the Seventh Respondent had unlawfully closed Sawarokau Polling Station before the statutory time of 5 pm.
  16. Subsequent to the filing of sworn statements by the First to the Seventh Respondents and disclosure of election documents by the Attorney General, an amended election petition was filed by the Petitioners on the 11th November 2019.
  17. In the amended petition, all of the allegations against the Fifth Respondent contained in paragraphs 11, 74, 75, 76, 77 and 78 were abandoned.
  18. Before the hearing was conducted in this matter, the Petitioners had further abandoned the allegations against the Second Respondent contained in paragraphs 29 to 38, paragraphs 49 to 55 and paragraphs 56 to 59.
  19. Likewise the Petitioners had also abandoned the allegations against the Third Defendant contained in paragraphs 56 to 59 of their petition.
  20. The allegations against the Seventh Defendant contained in paragraphs 73 to 77 were also abandoned by the Petitioners.
  21. From the above sequence of events, the petitioners had abandoned most of their allegations against the Attorney General except two. The two allegations that are maintained by the Petitioners against the Attorney General are in respect of the Second and Fourth Respondents official duties at Honoa Polling Station as well as the Second and Fifth Respondents official duties at Rara Polling Station.
  22. The Honoa allegations are contained in paragraphs 19 to 28 of the amended petition together with paragraphs 60 to 64 of the same.
  23. The Rara allegations are captured in paragraphs 39 to 48 of the amended petition as read together with paragraphs 65 to 72 of the same.

Preliminary issue- The effect of an omission of similar provision of Section 66 of repealed Act in the 2018 Electoral Act.

  1. A preliminary issue of law has been raised by Mr. Radclyffe of counsel for the First Respondent. It would be prudent for this court to deal with that issue first.
  2. He raised the issue of whether this court has power to declare an election result invalid if a candidate is proved to have bribed someone, in the absence of a provision in the Electoral Act 2018 like Section 66 (1) of the National Parliament (Electoral Provisions) Act (Cap 87) (repealed). I intend to deal with that issue before addressing the issues raised in the amended petition.
  3. The National Parliament (Electoral Provisions) Act (Cap 87) was repealed under Section 138 of the Electoral Act 2018. The Electoral Act 2018 was gazetted on 24 August 2018 and came into operation on 25 August 2018.
  4. Section 66 of the repealed Act provided:
  5. It is also noted that apart from the above section in the repealed Act, there is also the provision under Section 5 of the repealed Act. Section 5 provided. The election of members of the National Parliament shall be in accordance with the provisions of the Constitution and this Act.
  6. Section 9 of the repealed Act provided:
  7. There is no equivalent provision of Section 66 and Section 5 of the repealed Act in the current Act.
  8. The 2018 Act has extended the provisions of Section 9 of the repealed Act in its current Section 112. It provided
  9. Election bribery is codified under Section 126 of the 2018 Act. It provides
    1. A person commits an offence if:
    1. the person directly or indirectly promises, offers or gives a benefit to another person; and
    2. the person does so with the intention of influencing the other person to:
      1. vote or refrain from voting at an election; or
      2. vote in a particular way in an election; or
      3. influence a third person to vote, refrain from voting or vote in a particular way at an election.
Maximum penalty: 150,000 penalty units or imprisonment for 15 years or both.
  1. the person directly or directly solicits, accepts or receives a benefit for himself or herself, or another person; and
  2. the person does so with the intention that he or she will be influenced to:
    1. vote or refrain from voting at an election; or
    2. vote in a particular way in an election; or
    3. influence a third person to vote, refrain from voting or vote in a particular way at an election.

Maximum penalty: 150,000 penalty units or imprisonment for 15 years or both.

(4) A person commits an offence if the person gives another person money or any other item with the intention that the money or item be used as a benefit in the commission of an offence under subsection (1)
Maximum penalty: 150,000 penalty units or imprisonment for 15 years or both.
  1. Section 129 of the 2018 Act provides for the consequential effect of a conviction under Section 126. It provides
  2. To assist me in deciding the issue raised by Mr. Radclyffe, I am inclined to discuss the above provisions of the repealed Act and the current Act. In doing so, I am also inclined to discuss the comments by the Honourable Chief Justice in paragraph 42 of his decision dated 2 September 2019 in this present proceeding in which he said “Whether by design, purpose or not, it is not clear if the omission of key provisions similar to sections 5, 9 and 66 (1) and (2) in the repealed legislation were not included in the new legislation, thus leaving this important question open to the Court to determine. Perhaps this is something which Parliament should consider for review with the view to any amendments to be inserted to make the law clear”.
  3. I am also inclined to take cognisance of the comments of Justice Higgins on page 4 of his ruling in the case of Lilo v Tanagada & Attorney General- CC281/19. In his Lordship discussion absent the specific provision of section 66, he said inter alia “It is clearly arguable that the lack of the express provision in s. 166 (1) of the repealed Act was intended to confine the consequences of such conduct to that specified in s. 129 of the current Act”.
  4. The above comments by the Honourable Chief Justice and Honourable Justice Higgins confirm the uncertainty created by Parliament under the current Act. The Honourable Justice Higgins did not go further in his discussion because the issue was not raised by counsel before him. On that note, he respectfully agrees with the Chief Justice’s reasoning and conclusions.
  5. I wish to commence in stating that the repealed Act has a general compliance provision under section 5 that covers conduct of elections.
  6. The current Act deals with conduct of elections under Part 5. That part is divided into 4 divisions. Division 1 deals with key dates in the conduct of an election. Division 2 talks about candidates for election. Division 3 deals with arrangement for voting and division 4 deals with voting. In summary therefore, Part 5 is concerned with the conduct of elections commencing from the appointment and proclamation of the election date to the actual voting.
  7. The current Act does not have the same provision as the one in section 5 in the repealed Act. The only section that relates to the courts power to invalidate an election is that conferred by Section 112.
  8. There was a direct link of the electoral offences to the election process in the repealed Act. See section 66 of that Act.
  9. Part 9 of the 2018 Act deals with offences. This part is the offence creating provision and penalties. There is no direct connection of the Part 9 offences to section 112 of the Act.
  10. The only direct connection with section 126 is section 129 which provides for disqualification for 5 years. The convicted person would be so disqualified from being registered as an elector, from voting at an election and from being elected as a Member of Parliament.
  11. It is my respectful view that the omission by Parliament to include an equivalent to section 66 in the repealed Act is unexplained. That is a substantial omission.
  12. I respectfully say that it is not the duty of this court to step into the shoes of the legislature and make laws. The court’s duty is limited to use and construction of the laws.
  13. It is clear from the statements of the learned Chief Justice in his earlier ruling in this case that the omission by the legislature to include like provisions of sections 5, 9 and 66 of the repeal Act should be considered for review. This means that there is no clear answer to this issue.
  14. It is my respectful view that having regard to the relevant provisions in the repealed Act as well as the current Act, discussed above, I am of the view that this court cannot go further than what is provided for in section 129 of the current Act.
  15. It is further my respectful view that the court cannot and should not make laws. We use and construe the law as it is. If there are substantial omissions and mistakes in our laws, it is for Parliament to correct them.
  16. I have also noted the comments by the Honourable Chief Justice in paragraph 51 of his ruling. I have noted that paragraph but with respect, but I am of the view that upon conviction in a bribery allegation, the whole election process collapses. The wining candidate is automatically disqualified upon conviction. He/she is disqualified from being registered as an elector, from voting at an election and from being elected as a Member of Parliament for a period of five years.
  17. It is my respectful view that the Parliament had framed the current electoral laws to criminalise the allegations contained in Part 9 of the Act. That being that case, it is open to electors and candidates under our new legislation to either commence election petition cases or to commence criminal prosecutions. Either of these options will achieve the same results.
  18. In view of the above discussions, I hold that the allegations of bribery against the First Respondent even if proven, does not entitle this court to invalidate the election of the First Respondent.

The Allegations

  1. The court has noted that none of the Petitioners have given evidence in support of their amended petition. The Petitioners are not losing candidates in the East Are ‘are Constituency but have claimed to be registered electors of that Constituency.
  2. During the 2019 national general elections, the final results for the East Are ‘are constituency were as follows:-
    1. Peter Kenilorea Junior polled 4,200 votes,
    2. Andrew Manepora’a polled 2,755 votes, and
    3. Michael Toki polled 18 votes
    4. from those results, a total of 6,973 electors have exercised their right to cast their votes for the East Are ‘are Constituency.
  3. The Petitioners have alleged that the First Respondent have committed three instances of bribery against individuals during the 2019 national general elections for East Area ‘are Constituency.
  4. Bribery is defined in the Blacks Law Dictionary as the corrupt payment, receipt or solicitation of a private favour for official action. The Oxford Law Dictionary defines it as a promise, offer or to give something, often illegally, to a person to procure services or gain influence.
  5. At this juncture I wish to state that the burden of proof in respect of all election petition allegations is that the evidence adduced by the Petitioner must be to the entire satisfaction of the court. The court is guided by the comments by the learned Chief Justice on this issue in the case of Temahua v Vagara in CC 282/19.

Manawai Village allegation

  1. The first allegation of bribery against the First Respondent is alleged to have been committed on the 3rd April 2019 at Manawai Village. The allegation is contained in paragraphs 19 to 28 and paragraphs 60 to 64 of the amended petition.
  2. It is alleged that on 3rd April 2019 at Manawai Village, Rexley Horimae, an agent of the First Respondent met Allan Keniwasia and corruptly gave him $300.00. Mr Rexley Horimae directed him to vote for the First Respondent.
  3. The only witness in respect of the first allegation was Allan Keniwasia, the person that had allegedly received $300.00 from Mr. Horimae. Apart from saying that he received $300.00 from Mr. Horimae, he also stated that he was directed to vote for the First Respondent.
  4. The court had observed the demeanor of this witness in court and views him as an unreliable witness that could be easily swayed. He was evasive and uncertain about facts during cross examination.
  5. Apart from what was said by this witness, there is no evidence connecting the First Respondent to the allegation of bribery. The first allegation is therefore dismissed.

Rioaoaoa & Honoa Polling Station allegation

  1. The second allegation alleges on 2nd April 2019 at Rioaoaoa Village. It was alleged that Andrew Ainiwari, an agent and supporter of the First Respondent corruptly gave to Walter Fugui $500.00 and directed him to vote for the First Respondent. It was further alleged that on 3rd April 2019, Mr Ainiwari met Mr. Fugui at Honoa Polling Station and further directed him to vote for the First Respondent. He indeed voted for the First Respondent.
  2. The Petitioners evidence on this allegation came from Ramoni Soekini, Walter Fugui, and Stanley Fugui. However the only direct evidence that can show the giving of $500.00 by Mr. Ainiwari is from Walter Fugui. The allegation is denied by Mr. Ainiwari.
  3. It is for the Petitioners to prove the allegation to the required standard. The First Respondent need not prove anything.
  4. I have also observed the demeanor of Mr. Fugui in court. He was an over enthusiastic witness. He is a very young person and does not think before answering questions. In cross- examination, he even said that if he was offered money he will accept.
  5. Whatever had been said by these three witnesses, I am also unable to find that there is a connection between what Mr. Ainiwari was alleged to have done to the First Respondent. There is no evidence that the First Respondent was aware of and had accepted what was allegedly done by Mr. Ainiwari.
  6. I find that the Petitioners have not proved the second allegation of bribery against the First Respondent. The second allegation of bribery at Rioaoaoa and Honoa Villages are dismissed.

Solar kit allegation

  1. The third allegation of bribery against the First Respondent was alleged to have been committed on the 25th March 2019 at Manawai Village. It was alleged that the First Respondent by himself and or by his agent or supporter had corruptly given to Mrs Unity Ropori a solar kit (120 watts solar panel & accessories) to influence and induce her to vote for the said Peter Kenilorea Junior.
  2. There is no dispute that the First Respondent and members of his family had given a solar kit to Mrs. Unity Ropori. There is also no dispute that Mrs. Unity Ropori is the First Respondent’s grandaunt, being a sister to the First Respondent’s grandmother. In Solomon Islands context, grandaunts are normally called grandmothers.
  3. The Petitioners had called two witnesses in respect of this allegation. The witnesses were Mrs. Milita Rawai’a, Mrs. Unity Ropori’s daughter in-law and Mr. Jeff Takaramu who is one of her sons.
  4. The joint evidence of these two witnesses is that a solar panel was given to Mrs. Ropori. That at the material time, Mrs. Ropori had two other solar units, one was 20 watts and the other 40 watts. That Mrs. Ropori was not in need of a solar kit.
  5. In respect to the allegation, the First Respondent gave evidence admitting that his family had decided to give the solar unit as a gift to his grandmother Mrs. Ropori. It was not a custom gift but a gift to a family member.
  6. The issue that I must decide on is whether the giving of the solar kit by the First Respondent to his grandmother amount to bribery.
  7. The court had noted that in cross examination, Mrs. Rawai’a had stated that even if a solar was not given by the First Respondent to Mrs. Ropori, she would still vote for the First Respondent because she was his grandmother.
  8. Mrs. Ropori was never called to give evidence in court. The court does not know which of the candidates she had voted for. This is a bribery allegation in respect of Mrs Ropori. The evidence of Mrs Rawaia and Mr. Takaramu is hearsay and cannot be used against the First Respondent. The third allegation of bribery is also dismissed.

Allegations against the Second, Third, Fourth, Fifth and Seventh Defendants.

  1. As alluded to in paragraph 21 above, the only two allegations that are maintained by the Petitioners against the Attorney General are in respect of the Second and Fourth Respondents official duties at Honoa Polling Station as well as the Second and Fifth Respondents official duties at Rara Polling Station.
  2. In respect of allegations against the Attorney General, the court must take cognisance of the provision of section 112 of the Electoral Act 2018. That section provided:
    1. the registration of electors and the conduct of the election substantially complied with the Constitution, this Act and any other written law; and
    2. the matter mentioned in subsection (1) did not affect the result of the election.
  3. The matters raised in section 112 (1) of the Act are all procedural matters. They deal with failure to comply with time, omission or irregularity in filing, lack of or defect in appointing electoral officials and an absence of, mistake or omission or breach of duty by an electoral official before, during and after polling.
  4. Subsection (2) provides with two situations that the court must consider before deciding whether or not to declare the election invalid:
    1. The Court must be satisfied that the registration of electors and the conduct of the election substantially complied with the Constitution, any relevant Act and any other written law;
    2. The matter mentioned in subsection (1) did not affect the result of the election.

Honoa Polling Station allegation

  1. The Petitioners complaint is that on 3rd April 2019, between 7.00 am to 12 pm, the Presiding Officer at Honoa Polling Station had failed to ensure that all issued ballots were marked with the official mark pursuant to Section 83 (3) of the Electoral Act 2018.
  2. It was further alleged that on 5th and 6th April 2019, the Returning Officer decided to accept all ballot papers casted without official marks to be counted as valid contrary to Section 101 (2) (a) of the Electoral Act 2018.
  3. There was no dispute that between 7.00 am to 12 pm, the ballot papers casted at Honoa Polling Station were not stamped with the Electoral Commission stamp. Nonetheless they were all signed by the Returning Officer.
  4. There is also no dispute that objection was raised by losing candidates agents during counting of votes on 5th and 6th April 2019.
  5. That complaint was dealt with and it was decided that the unstamped ballot papers should also be counted. That decision was reached because those ballot papers were duly signed by the Returning Officer.
  6. With regard to this allegation, the issue for this court to consider is whether the casting of the unstamped ballot papers from 7.00 am to 12 pm, was done contrary to the Constitution, the relevant Act and any other written law.
  7. Section 82 (1) of the Electoral Act 2018 provides that it is the duty of a returning officer for a constituency to prepare a list of official marks. Subsection (2) further provides that the returning officer must give the list of official marks to the presiding officer for each polling stations in the constituency.
  8. In this case, there is no evidence adduced in court if Honoa Polling Station had a list of official marks prepared by the returning officer.
  9. Subsection (3) (d) provides that the presiding officer or a polling assistant’s duty is to mark the ballot paper with an official mark.
  10. My reading of the above provisions implies that there can be a number of official marks used at a polling station. Nonetheless, the use of a single official mark can also be valid pursuant to section 83 (3) (d). It is my respectful view that the use of the words ‘with an official mark’ implies singular.
  11. Official mark is not defined under the Act. The court was told during the hearing that an official mark could be the presiding officer’s signature or the Electoral Office stamp. The court had taken that to mean one of the other.
  12. The witness for the petitioners Mr. Henry Houtatana had said in court that he had successfully voted at Honoa Polling Station on 3rd April 2019. In that regard, the processes provided for under section 83 (1), (2) and (3) had been substantially complied with by the Fourth Respondent.
  13. On 5th and 6th April 2019, objections pursuant to section 101 (2) (a) of the Act were raised by the Petitioners agent at Auki. After due consideration was given to the objection, the votes at Honoa Polling Station were counted.
  14. For this allegation, I am also minded to take note of the provision under Section 112 (2) of the Act. Under that provision, the court is not obliged to declare an election invalid upon issues mentioned in s.112 (1) of the Act if the registration of electors and the conduct of the election substantially complied with the Constitution, this Act and any other written law.
  15. I have discussed the process stipulated under section 83 (1), (2) and (3) and from the evidence that I have heard in court, the processes stipulated above have been substantially complied with. Notwithstanding the hiccup between 7.00 am to 12 pm, the election process continued the whole day and every voter was able to cast his or her vote on Election Day.
  16. I adopt the statement of Stephenson, L.J., in the case of Morgan & Others v Simpson and Another [1974] 3 All E R 722 in which he stated inter alia that “the departure from the requirements of the electoral law in this case, in my view, was not so substantial as to make the ordinary man condemn the election as a sham or a travesty of an election by ballot.”
  17. So even if there was a departure from the requirements of the electoral law, (there is no such finding of fact in this case), that departure must be so substantial that an ordinary man condemns the election as a sham or a travesty of an election by ballot.
  18. In the present case, there is no departure from the requirements of the Constitution and the electoral laws. As I have found above, the official mark could be a single mark. The signature of the presiding officer was an official mark required under the Act.
  19. In light of my discussions above, the decision of the Second Respondents to allow the counting of the Honoa ballot box is valid.

Rara Polling Station allegation

  1. The second allegation was in relation to Rara Polling Station. It was alleged that the Presiding Officer at Rara Polling Station used an alternative voters list on 3rd April 2019.
  2. There is no dispute that an alternate list was used by the Returning Officer at Rara Polling Station. The Returning Officer had given evidence that they used a print out of the final list of voters on election day. That list was cross-checked with the display list of voters. The explanation was given was that the proper list was not included in the ballot box and in order for voting to proceed, a copy of the final voter’s list without photographs was used.
  3. The election process used on election day at Rara Polling Station was voters names were checked and a red pen was used to cross the names of voters as and when they vote.
  4. The petitioners witness Rueben Maeoriori said in evidence that an alternate list without photographs are used at Rara Polling Station on election day. The official voters list and the alternate list used by the Presiding Officer at Rara Polling Station were tendered in court as exhibits R1, R2, R3 and R4.
  5. Apart from the use of the alternate list, there was no actual complaint raised by any of the Petitioners or their agents on the date of election. The complaint was subsequently raised during counting of votes on 5th and 6th April 2019.
  6. The Court had noted that the processes provided for under section 83 (1), (2) and (3) were substantially complied with.
  7. The court had also noted that the exhibits R1, R2, R3 and R4 tendered in court as evidence on the allegation confirm that due process pursuant to the above provision was substantially complied with.
  8. Another issue that is worth mentioning is the fact that none of the Petitioners are registered voters for Rara Polling Station.
  9. Section 108 (2) of the Electoral Act 2018 provides for persons entitled to file an election petition. Subsection (2) provided:
  10. There is no evidence produced by the Petitioners in court that they were registered electors in Rara Polling Station. In this instance, it is the court’s view that none of the Petitioners could have raised issues about Rara Polling Station. There is no connection of their complaint to the allegation. Their voting rights could not have been breached or affected if they have no right to vote at that polling station at the first place.
  11. The court had also noted that from all of the evidence from the Petitioners, at no time were the witnesses able to state in court how the allegations could have affected the result of the election for East Are’are Constituency.
  12. The final results of the East Are’are Constituency are as follows:
    1. Peter Kenilorea Junior polled 4,200 votes,
    2. Andrew Manepora’a polled 2,755 votes, and
    3. Michael Toki polled 18 votes

From the above results, there is a difference of 1,445 votes.

  1. In the documents marked R1, R2, R3 and R4, the total number of voters for Rara Polling Station was 215. A question that could be raised therefore would be in what way could the complaint at Rara Polling Station have affected the result of the election for East Are ‘are Constituency?
  2. The Petitioner’s witnesses were asked in cross-examination as to how the exclusion or inclusion of the votes at Rara Polling Station could have affected the result of the election. The witnesses could not even say how the results could be affected. The court had noted that the vote difference is very high to have been affected.
  3. To put it another way, (and taking the numbers at its highest) even if the 215 votes from Rara Polling Station were excluded or included, it would not have affected the result of the election.
  4. I therefore hold that the allegation against the Second and Fifth Respondents is not made out to the required standard and is dismissed.

Orders of the court

  1. Allegation 1 against the First Respondent is dismissed.
  2. Allegation 2 against the First Respondent is dismissed.
  3. Allegation 3 against the First Respondent is dismissed.
  4. Allegation 1 against the Second and Fourth Respondents is dismissed.
  5. Allegation 2 against the Second and Fifth Respondents is dismissed.
  6. Mr. Peter Kenilorea Junior is the duly elected Member of Parliament for East Are’are Constituency.
  7. In accordance with section 111 (5) of the Electoral Act and Rule 35 (1) of the Electoral Petition Rules 2019, the court will give a certificate of its decision to the Electoral Commission, Governor General and the Speaker of Parliament in due course.
  8. Cost against the Petitioners.

THE COURT
Maelyn Bird
PUISNE JUDGE

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