DEAR EDITOR – I believe the question of whether the High Court has the power to invalidate an election petition on proof of bribery under the Electoral Act 2018 was considered by the Chief Justice Sir Albert Palmer in the case of James Airahui and others v Peter Kenilorea (Jr) and others.
In his judgment the Chief Justice concluded in paragraphs 50 and 51 as follows;
Paragraph 50 “Although there is no equivalent, of section 66 (1) and (2) and sections 5 and 9 (of the repealed Act), to be found in the new Act, that is no bar for the Court to find that an election is invalid. Once an election bribery offence has been proven against a candidate elected or his agent, the court is obliged to declare an election invalid. To do otherwise, would be to condone the election of a candidate who had committed bribery by himself or his agent, and uphold an election that has been conducted not in accordance with the principles of the Act”.
Paragraph 51“To put it in another way, if bribery as an election offence under section 126 of the Act, on conviction, can result in a fine or imprisonment and disqualification for 5 years from the date of conviction, but not avoidable election, that result could be described as bizarre.”
The Chief Justice used the words proof of bribery offence against a candidate or his agent. He did not use the word conviction.
As a layman my interpretation is, the conviction is for criminal offence under the Act and proof of bribery is for a civil matter such as an election petition under section 108 of the same Act.
Obviously there are two different processes of dealing with election offences.
First, as a Criminal offence, this may result in a fine or imprisonment and disqualification and second as an election petition, this may result in invalidation of the election results.
My layman’s reading of the judgments is that in the case of Sikua v Vokia, Justice Kouhota simply followed precedence by citing paragraphs 50 and 51 of the Chief Justice’s judgment in the Airahui v Kenilorea (jr) case.
I believe as a Junior Judge he was obliged to follow the Chief Justice’s decision.
The question of invalidating an election was settled by the Chief Justice and as a matter of curtsey, he does not need to consider it again but relies on the precedence.
So Mr. Sasako where does the Judge used section 66(1) and 66(2) to invalidate Mr. Vokia’s election as you repeatedly stated in all your articles?
The Registrar had explained the court’s position two times but Mr. Sasako continues to say the same thing over and over.
In so doing Mr. Sasako makes himself look like a fool.
I know Justice Kouhota used to be the Chairman of the Leadership Code Commission (LCC) some years back and he instigated a case of Misconduct in Office against Mr Sasako who was then the Member of Parliament for East Kwaio constituency after Sasako took off with another man’s wife to Brussels to be Sir John Kaputini’s press secretary.
The LCC investigation resulted in Mr. Sasako been sacked from his job in Brussels only after a month on the job.
Few months after being sacked Mr. Sasako returned and contested the Parliament election for East Kwaio constituency.
He lost to Mr. Sofu and continued to lose every parliament election for East Kwaio constituency until now.
Not only that but he also continues to lose every election petitions he filed against Mr. Sofu. It seems his only supporter now is Martin Housanau.
I believe Mr. Kouhota’s investigation seriously hurts Mr. Sasako so isn’t that the reason why Mr. Sasako keeps repeating his misleading and defamatory remarks against this particular judge?
The most recent was his article under the heading “High Court Judge facing election petition bribery hears another case” is a case in point.
What Mr. Sasako implied in his article is that the judge is corrupt and bias and will not do justice in the petition case that is now before him.
I believe that the article is highly defamatory and would not be surprised if a defamation suit is in the pipeline.
I am not a lawyer. I am just passionately curious.