Friday, September 17, 2010

Election petitions lodged to be 'tested' by the courts.

The local media in Solomon Islands has reported a record number of election petitions lodged before the High Court.

SIBC and Solomon Star have reported that by the deadline of 3:30pm of the 16th September (Thursday) a total of 18 petitions were lodged. In the history of Solomon Islands this has been the highest number of petitions lodged so far at one time. These petitions were submitted mainly by losing candidates of the recent elections.

Interestingly, according to SIBC reports, the number of election petitions have been shared equally between the government and the opposition, with nine petitions going against each side respectively.

The MPs whose wins have been challenged include MP for Maringe/Kokota, Varian Longamei; Central Kwara'ae's Jackson Fiulaua, West Honiara, Namson Tran; South Vella La Vella's Lionel Alex, North Guadalcanal's Martin Soaghe, Temotu/Pele's Martin Maga, East Honiara's Douglas Ete, Ranogga/Simbo - Charles Sigoto, and Central Honiara, John Moffat Fugui, MP for Lau Baelelea, Walter Folotalu; West New Georgia, Vona Vona's Silas Tausinga; Fataleka's Steve Abana, East Are'are's Andrew Hanaria, West Are'are's John Maneiaru, North East Guadalcanal's Derek Sikua , Malaita Outer Islands' Martin Kealoe, Small Malaita's Rick Hou, and West Kwara'ae's Samuel Iduri.

In the short history of Solomon Islands politics, the record of successful election petitions is very low. I therefore could not help but ponder on the thought that if there is indeed corruption during elections by candidates, then why is it that a majority of petition cases have not been successful in the courts? Thinking through this situation even makes me to become quite sceptical of the justice system we have, especially in relation to election petitions, or even in relation to Members of Parliament in general.  

Part of me however, reminded myself that may be the low success rate of elections petitions is partly due to the fact that it is often very difficult to substantiate 'proof' and 'evidence' against winning candidates, especially given the dire socio-economic situation our country is currently experiencing. Ordinary people who may have benefitted from corrupt election  practices, contrary to section 66 (2) of the Electoral Provisions Act, would be very reluctant to testify against winning candidates, knowing very well that making such a move involve incalculable risks. Social and economic insecurity therefore plays a very big role in people's reluctance to provide significant 'evidence'.

Indeed the courts value first hand witness acounts as vital. However in many occassions people who are directly involved in such actions are supporters of winning candidates who are alleged to have committed these acts. So they would not be willing to testify against a person they support, who in most cases would be their relative. Hence, unless they are offered 'greener pasture' by petitioners - an act which in itself is, to a certain extent, also corrupt - the nature of substantial evidence, as viewed by the courts would always be doubtful.

The absence of proper systematic recording systems also play a very big role in the lack of 'evidence' supporting election petitions. In many cases, acts of corruption,  misconduct and misdemeanour during elections are trully committed by the respondents of election petitions. However, in the absence of proper recording systems and due to the courts insistence on 'black and white' as 'hard evidence' if substantial first-hand witness accounts are unavailable,  it is always very difficult to 'prove beyond resonable doubt' that such transactions have occurred.

The socio- political and economic dynamics of Solomon Islands society as we know are  very complex and interwined. People relate to the 'world' beyond them based on their surroundings, world view and cultural prejudice. In Solomon Islands the social, economic and political decisions people make are still very much embedded to their social environment. For instance, in relation to practices of bribery and corruption there is often difficulty in trying to divorce cultural prejudice from the social justification of dubious actions such as gift giving, which in other societies would be regarded as bribery and corruption. The treatment of 'truth' and 'evidence' by courts therefore differs greatly from what an ordinary person may percieve to be sufficiently a matter of 'evidence'. So looking at the whole situation from the outset, it to me indicates that there is a certain degree of 'mis-marriage' between our justice system and socio-political environment.  

The above situation is worsened by continuous government failure leading to decay of confidence in the relationship of the people with the state. When this occurs people would not regard their actions of accepting bribes and 'gifts' during elections as illegal. To them it is a means of making immidiate returns from a system that has failed them for so long. When this mentality is developed over time, it becomes a culture almost impossible to change. So even when they are aware of corruption during elections, there will be no urge from them to try and ensure justice is served accordingly.

The case of Gigini v Notere of 2002 was one of the very few election petition cases that have gone through our court system successfully, where Eric Notere was the winning candidate and respondent accused of electoral corruption and William Gigini, one of the losing candidates and petitioner. In the case the petitioner claimed that two of the supporters of the respondent were invloved in dubious activities, in the set up of a financial scheme, during the campaign period aimed at luring people to vote for the respondent (Notere) on the condition that if Notere wins their financial contributions will be repaid but will be multiplied by a hundred.

In his defence, while not denying the existence of the scheme, the respondent argued that he was not involved in the activities and that there were no existence of any reciepts to substantiate his involvement. His argument was that the activity was undertaken by his supporters, not him and that he has no prior knowledge of the scheme's existence.

In reaching its decision the court dwelled extensively on the presence of reciepts as 'substantial evidence'  providing prove to the case and how that have impacted on the outocme of the elections in Gao-Bugotu. In the end the court  found Notere guilty and the election result void and a by-election was held. The petitioner however was also unsuccessful in the by-elections that followed.

In another case, Haomae v. Bartlett of 1989, despite eyewitness accounts, the Court dismissed the peition on the grounds that the respondent  (Bartlett) gave money to a person and the money was a 'gift' given in response to a request from the reciepient. The court also acknowledged that practice of gift-giving is customary in Solomon Islands soceity.

In the judgment the presiding judge mentioned that: "In an election, any candidate will be subject to customary pressures to make gifts which he will feel he is obliged to observe. However, the giving of money is always likely to be misconstrued. In this case the sum was not large but, in the context of an old village man who had little other access to cash, its effect could be substantial. No hard and fast rule can be read into the provisions of section 70 but any candidate would be wise to try and avoid any gifts of money during an election campaign and, in all cases where the circumstances of the giving themselves do not do so, he should make it clear that the gift is made in custom and ensure it is appropriate in scale to such gifts."

It is therefore clear that in relation to election petitions the standard of proof is high and stricter as compared to other criminal or civil matters. This is could be clearly seen in Justice Muria's ruling in the case of John Maetia v. Charles Dausabea in 1993, drawing from a previous case ( Alisae v. Salaka) and cited at paclii website: "From these observations, I am of the view that the test in Alisae v Salaka is the test to be followed in Solomon Islands when allegations of corrupt practices such as bribery, treating or undue influence are raised in an election petition. That required standard of proof is stricter in that the allegations must be proved to the entire satisfaction of the court. The evidence must be clear and unequivocal in order to enable the court to be entirely satisfied that the allegation of corrupt practices are made out and not simply on the mere balance of probabilities which is a test that is appropriate to the other allegations of breaches of the election laws."

For current cases filed before the High Court, if it is for the betterment of Solomon Islands, we hope that they will pass the test of the courts.  

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