Dear Editor – Allow me space to respond to Henry B. Kahui’s article in your Issue No 5628 (27/09/2014), wherein, he questioned Andrew Hanaria’s eligibility to contest the 2014 National General Elections (NGE).
Firstly, the government offices that Mr Kahui called upon to clarify the issue have already made known their views and advised that Hanaria can contest the 2014 NGE.
Advices from Electoral Commission and Attorney General’s Chambers were given out in April 2013.
If Mr Kahui is serious, he can collect copies from my office, Room 20, NPF Plaza, Honiara.
We have disseminated copies of the advices to East Are’ Are electorate, January 2014.
But even so, East Are ‘Are, people like Mr Kahui would not believe.
They are either stupid or smart, not to have heed the advices. The High Court, I am afraid does not give legal advice to the public.
Mr Kahui must not expect to hear from the High Court.
Secondly, Mr. Ha’apio brought an election petition against Mr Hanaria’s election in 2010, alleging election offences under the National Parliament Electoral Provisions Act (Cap 87) – NPEPA.
Ha’apio’s election petition (in a civil proceeding) was successful and Hanaria lost his parliamentary seat in December 2011.
Ha’apio’s petition was a civil proceeding seeking civil reliefs, one of which was for High Court to declare invalid Hanaria’s election victory.
Ha’apio succeeded and Hanaria’s election was declared invalid on 7/12/2011 under S.66 (1) of NPEPA.
In the judgment, the Court said “…the election of Andrew Hanaria Keniasina as a Member of Parliament for the constituency of East Are’ Are was not valid and that the said Andrew Hanaria Keniasina is not entitled to remain a member of Parliament”.
The petition against Hanaria was instigated by Ha’apio, invoking the High Court’s civil jurisdiction.
The state did not charge Hanaria for an election offense under NPEPA, invoking the High Court’s criminal jurisdiction.
The state did not instigate any “criminal proceedings” against Hanaria. The state did not secure a “conviction” for a “criminal charge” against Hanaria, for an election offense under the NPEPA.
And so, Hanaria’s eligibility to contest 2014 NGE, is not caught by Section 76 (a) and (b), that Mr Kahui made reference to.
Section 76 (a) (b) provided punishments for a successful criminal charge and conviction for election offense (s) under NPEPA – punishments been not eligible to be registered as a voter and not eligible to be elected at parliamentary elections for a period of 5 years from date of conviction.
But because Hanaria was not charged and convicted for any offense under NPEPA in December 2011, in a criminal proceeding, S.76 (a) and (b) of NPEPA, does not apply to prohibit Hanaria from being registered as a voter and from contesting at a NGE for a period of 5 years, from December 2011.
In support of my contention, Hanaria is already registered as a voter, at Rara, Ward 20, East Are ‘ Are (Provisional Voters List 2014).
We are not aware of any objection made by any person in East Are’Are, against Hanaria been registered as a voter, during the “objection and omission” period, on the basis of Section 76 (a) of NPEPA.
It follows therefore that Hanaria is eligible to contest the 2014 NGE and not caught under Section 76 (b).
Both punishments in Sections 76 (a) and (b) are inseparable, because of the use of the word “and”.
Now that no objection was made, Hanaria’s name as per the provisional voters list 2014, remain valid.
He will now vote at 2014 NGE. He will now also be eligible to contest the 2014 NGE. That is to say Hanaria’s eligibility to contest the 2014 NGE, is not caught by the criminal punishments provided for a criminal charge and conviction under S.76 (a) and (b), of NPEPA.
The reason been Hanaria was not charged and convicted of a criminal offense under NPEPA, in a criminal proceeding.
I suppose Mr Kahui is a retired police officer, and I suppose he can distinguish between what is a “civil proceeding” and what is a “criminal proceeding” under NPEPA, or in law generally.