Cases that provide for Bribery in the ELection process in PNG
The Organic Law on National and Local-Level Government Elections gives full recognition to the common law principle that the Parliamentary elections must be free. It provides that any petition that is brought to the court of Disputed Returns and if the Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election if he is the successful candidate shall be declared void. The people must be free to exercise their vote honestly, and to be able to go to the polls and give their vote without fear or intimidation. Section 215 of the Organic Law on National Elections provides that if the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election, if he is the successful candidate, shall be declared void.
Section 215 of the OLNLGE deals with voiding election for illegal practices. It states that:
(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.
Justice Injia (as he then was) discussed the effect of section 215(1) & (3) in Karo v. Kidu and the Electoral Commission  PNGLR 28 as follows:
“The effect of s 215 (1) & (3) is as follows. An election will be voided for illegal practices or bribery or undue influence (or attempted bribery or attempted undue influence) committed by the winning candidate. In such a case, it is not necessary for the Petitioner to show that the result of the election was likely to be affected. Likewise, under s 215 (3) (a), an election may be voided for bribery or undue influence (or an attempt thereof) committed by a person other than a winning candidate with the knowledge or authority of the winning candidate. In which case, it is also not necessary for the Petitioner to show the likelihood of the election being affected. An election may be declared void if the bribery or undue influence (or an attempt thereof) is committed by a person other than the winning candidate, but without the knowledge or other authority of the winning candidate provided the Court is satisfied that the result of the election was likely to be affected”.
Ebu v. Evara  PNGLR 201. This was a petition to the National Court contesting the validity of the election on the grounds of bribery and undue influence. The Petitioner alleges acts of bribery, undue influence and electoral irregularities by the officials which happened on 11th March 1982 and 15 March 1982. The respondent admits that these meetings did take place but they were on 11th March 1981 and 15th March 1981. Section 2 of the Organic Law onNational Election provides that unless the contrary intention appears, “candidate” in Pts II and XVII includes a person who within three months before the first day of the polling period announces himself as a candidate for election as a member of parliament. The court considered the respondents evidence as correct and found that whether the words uttered by the respondent amounted to undue influence or not, it cannot void that election because he was not a candidate at the time within the meaning s. 215.
Agonia v. Karo and the Electoral Commission  PNGLR 463. The first respondent applied to have struck out an election petition which challenged his return as the duly elected member for the Moresby South Open Electorate. The grounds were, first, the attesting witnesses did not supply their proper addresses contrary to s 208(d) of the Organic Law on National Elections; and second, the petition failed to set out sufficient relevant material facts to establish bribery on his part, contrary to s 208(a) of the Organic Law.
The Court held that:
- A charge of bribery is a serious allegation challenging the electoral process; therefore, the base facts constituting the crime of bribery must be pleaded with clarity and definition.
- Intention to induce a course of action of corrupt practice or interfere unlawfully in the free voting of elections by voters is an element of the offence of bribery under s 103 of the Criminal Code, and must be pleaded specifically in the petition along with the other elements of the offence.
- The paragraphs in the petition alleging bribery should be struck out for failure on the part of the petitioner to plead specific elements of the offence in the petition, contrary to s 208(a) of the Organic Law. The petitioner failed to plead the element of intention to interfere unlawfully in the free voting in elections by voters and/or failed to plead whether the persons named were voters or eligible to vote in the said electorate.
Togel v. Igio and Electoral Commission  PNGLR 396.On a petition disputing an election return, seeking a declaration that the election was void on the basis of bribery, the first respondent and sitting member for the electorate had allocated grants from discretionary funds to two groups in the electorate. The funds were drawn from the National Development Fund, available to all members of the Parliament, and were allocated on the basis of recommendations made by a committee established by the first respondent. The first respondent did not know the members of the recipient groups, several of whom were requested by the persons delivering the funds to “remember” the first respondent, and who therefore felt obliged to vote for him. Evidence of a witness for the petitioner about receipt of the funds, which was not the subject of cross-examination, was contradicted by a witness for the respondent.
In dismissing the petition the court held that:
1. An election will be declared void due to bribery, under s 215 of the Organic Law on National Elections, if a bribe is offered to a person:
(a) with the authority or authorization of the candidate; and
(b) with the intention of persuading him to vote for a particular candidate.
2. Payments made from discretionary funds available to members of Parliament to groups or individuals could amount to bribery, depending on the circumstances.
3. Payments from the discretionary fund had made members of the recipient groups feel obliged to vote for the first respondent, and, accordingly, could constitute bribery if made with his authority or authorization.
4. There being no evidence that the first respondent either knew the identity of members of the groups receiving the funds or authorized what was said when the funds were delivered, there was no evidence of authority or authorization by him.
5. A Court is entitled to disbelieve a witness who gives evidence of facts which have not been put to the relevant witness of the opposing party during cross-examination.
In Wasege v. Karani  PNGLR 132, the applicant disputed the election of the respondent as the Member. In the preliminary proceedings all the grounds of the petition were struck out except for ground three (3). Ground 3 was an allegation that the respondent’s campaign committee attempted to bribe some of the voters to influence them to vote for the respondent. In dismissing the petition, the Court held that the allegation of bribery is a criminal offence and requires strict proof of all the elements of the offence and where the applicant does not provide strong and credible evidence to prove the allegation of bribery the proceedings must be halted.
Micah v. Ling-Stuckey and the Electoral Commission  PNGLR 151. The petitioner challenged the election of the first respondent alleging bribery. The petitioner alleged that the first respondent had bribed an elector in the electorate to vote for him. At the start of the trial the first respondent took issue with the eligibility of the alleged voter to vote in the elections. The court allowed a voir dire hearing to determine this issue. In dismissing the petition, the Court held that in circumstances where a crucial supplementary issue is likely to affect a principal ground raised in an election petition case, the court can allow for a voir dire hearing into the supplementary issue. And where the identity of an elector is in issue in an election petition case, it is appropriate to determine the issue in a voir dire hearing.
Karani v. Silupa and the Electoral Commission  PNGLR 9. This is an election petition grounded on bribery, undue influence, illegal practices and errors or omissions by electoral officials. The respondent to the petition, Mr Silupa and the Electoral Commission object to the petition in the form it is. The objection was grounded on their claims that material facts have not been pleaded by the petitioner as required by s. 208 (a), s. 215 and other provisions of the Organic Law on National and Local-Level Government Elections (the Organic Law) and S. 100, 102, 103 and other provisions of the Criminal Code.
The Court in dismissing the petition held that by looking at all the paragraphs either individually or together, it is quite clear in my view that the allegations are too general, confusing and do not plead several material facts.
Mond v. Nape and the Electoral Commission  (Unreported National Court Judgment N2318, 14 January 2003).This was an election petition by the Petitioner against first respondent. The Respondents to the petition, Mr. Nape and the Electoral Commission object to the petition in the form it is. That objection is taken on their claim that material facts relied on by the Petitioner have not been pleaded with sufficient particulars, in terms of ss.208 (a) and 215, of the Organic Law on Provincial andLocal-level Government Elections and ss. 102 and 103 of the Criminal Code.
The court in dismissing the petition said:
- Where a petition is presented on a ground other than bribery or undue influence, it is necessary to plead in addition to specifying what the conduct is:
(a) How the conduct complained of was likely to affect the election result; and
(b) The difference between the winning and runner-up votes to determine whether the election result was likely affected.
This is necessary because the Court must be satisfied in addition to finding an illegal conduct, that "result of the election was likely to be affect”by the conduct complained of "and that it is just that the candidate should be declared not to be duly elected or that the election should be declare void."
- In the case of an election petition presented on the bases of a bribery or undue influence, it is necessary to plead that the person or persons allegedly bribed are voters or electors. This is necessary because to alleged bribery it is a serious matter. As such it is important that all the elements of the offence must be pleaded. A failure to plead all of the elements of the offence means a failure to state the facts in terms of s. 208 (a) and so therefore it cannot proceed to trial by reason of s. 210 of the Organic Law.
Lus v. Kapris and Electoral Commissioner  (Unreported National Court Judgment N2326, 6thFebruary 2003).It is alleged that prior to scheduled polling on 27th June 2002 for the Electorate, the First Respondent together with his servants and/or agents have committed or engaged in several acts of bribery and threatening with the knowledge and authority of the First Respondent to procure votes of the registered or eligible electors for the first Respondent, and with the intention to interfere unlawfully in the free voting in elections by voters, thereby contravening, inter alia, Sections 191 of the Organic Law on National and Local-Level Government elections.
The specific instances of allegations of bribery were that the campaign manager for the First Respondent, giving rice, tinned fish and sugar to the First Respondent’s supporters; and said to the voters "."Yupela kaikai dispela kaikai na votim Gabriel Kapris olsem open memba na mi olsem ward memba" and subsequently said "Yumi mas pulim ol lain bilong Sir Pita long kam na votim Gabriel na mi".
The Court in dismissing the petition said so far as the allegation of bribery is against a person other than the First Respondent, the Petition pleaded that the bribery was carried out with the knowledge and authority of the First Respondent but failed to plead any facts to support this allegation.
In the Matter of The Organic Law on National and Local-Level Government Elections, Lak v Wingti  (Un-reported National Court Judgment N2358, 25 March 2003).The Petition alleges several instances of bribery and undue influence. Counsel for the Respondent made an application to stop the trial on the basis that the evidence called has failed to prove the essential grounds to invalidate the election result. The court upheld the submission, stopped the trial and dismissed the Petition. The court in upholding the submission said:
“I set out my views in respect of this kind of application in Desmond Baira v KilroyGenia and Electoral Commission (Unreported Judgment of the Supreme Court dated 26th October 1998, SC579). I adopt what I said there and in particular the passage:
"...whether, or not, a judge should stop a case at the close of the petitioner's case is a matter entirely up to the discretion of the Court. In considering the exercise of this discretion it would be relevant for the Court to have regard to the terms of s 217 of the Organic Law. The Court should be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities. In my opinion it would be open to a judge having regard to the terms of s 217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election."
In the Matter of the Organic Law on National and Local-Level Government Elections, Karani v Silupa  (Unreported National Court Judgment N2385, 10 April 2003).This was an election petition by Petitioner against Mr. Yawa Silupa’s election as Member of Parliament for Lufa Open Electorate in the 2002 General Elections for the National Parliament. The petitioner alleges Bribery, undue influence, illegal practices and errors or omissions by electoral officers. The respondent to the petition, Mr Silupa and the Electoral Commission object to the petition in the form it is. That objection is grounded on their claims that material facts have not been pleaded by the Petitioner as required by s. 208 (a), s. 215 and other provisions of the Organic Law on National and Local-Level Government Elections (the Organic Law) and S. 100, 102, 103 and other provisions of the Criminal Code.
The court in dismissing the petition said:
“The law in respect of an allegation of bribery or undue influence in an election petition for the purpose of s. 208(a) is basically that the facts set out should support the elements of the offence of bribery, as it is constituted by s. 103 of the Criminal Code. Anything short of that will offend against s. 208(a) and therefore will be fatal. See Bourne v Voeto PNGLR, Palme v Mel PNGLR 808,Agonia vKaro PNGLR 463,Charles Luta Miru v David Basua and Others N1628, Ludger Mond v Jeffery Nape(14 January 2003), Miria Ikupu v Sir MekereMorauta (19 December 2002) EP 05/02, Moses Murray v Sir Michael Somare & OthersEP 36/2002, Francis Ali v Frank Oru & Others(EP 37/02)”.
In the Matter of The Organic Law on National and Local-Level Government Elections, Aihi v Avei & Electoral Commission  (Unreported National Court Judgment N2523, 26 March 2004).This was a petitioning alleging bribery by the first respondent. The First Respondent applies to strike out the remaining eight (8) grounds of the Petition set out in clause 6A, (h), (j), (k), (l), (M), (o), (q), and (u) on the grounds that they fail to plead or sufficiently plead some of the relevant facts required to be pleaded under s.208 (a) of the Organic Law on National and Local-Level government Elections. All these eight (8) grounds plead "bribery" as defined under S.103 of the Criminal Code as a ground for voiding the election. It is alleged that the First Respondent committed acts of bribery and undue influence during the elections for the Kairuku Hiri Open Electorate and accordingly his declaration and return as the duly elected Member be declared null and void.
In dismissing the petition, the court said “on the whole of the evidence on both allegations of bribery, I am not satisfied that the Petitioner has proven to the required standard, the first basic fact - of giving the property or benefit or making the promise by the First Respondent or Mr Igo Pautani. Once this first basic fact is not proved, it is unnecessary to consider the other elements of bribery and the other requirements of S.215 of the Organic Law”.
Dusava v Waranaka, Uone and Electoral Commission (Unreported National Court Judgment N3367, 19 March 2008).The respondents, pursuant to section 208(a) of the Organic Law, were challenging the competency of the petition on the basis that the petition does not set out the facts relied on to invalidate the election in that it does not properly plead facts establishing the essential ingredients of each allegation of bribery.
The Court in dismissing the objection to competency held that:
- The petitioner has specifically pleaded sections 103 (a) and (d). It is important to note that in an allegation of bribery under section 103 (a), it is not necessary to plead how the elector voted or acted on the money received from the candidate. There are two reasons for this.
- In the final analysis, this is merely a competency issue. The allegations may or may not be proved in the substantive hearing where the standard of proof is quite different. Any finding here, therefore, is without prejudice to any party.
- Be that as it may, there are substantial merits in the pleaded facts of the five allegations of bribery warranting a substantive hearing. The petition should proceed to substantive hearing on the five bribery allegations. The objection to competency is, accordingly, dismissed with agreed or taxed cost.
Dusava v Waranaka, Uone and Electoral Commissioner  (Unreported National Court Judgment N3368, 23 April 2008).The Petitioner alleges five instances of bribery and, consequently, seeks to void the election of the First Respondent, as the duly elected member. The First Respondent in defending his election. He contends that he did not bribe any elector and the petition should be dismissed.
The allegations are brought pursuant to Section 215(1) of the Organic Law in conjunction with section 103 (1) (a) and (d) of the Criminal Code Act, Ch. No. 262 (the Code). A finding of bribery has dire consequences for a successful candidate and the electors. It will automatically result in the voiding of his election and the electors will have no voice in Parliament until such time a by-election is held. Section 215 (1) of the Organic Law provides simply that 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." The provision is mandatory. The Court does not have any other option.
The Court in finding that the first respondent committed bribery and declaring that his elections void said:
- 1. It has to be determined whether the proven facts support the elements of bribery. On the facts, the First Respondent is guilty of having committed bribery. Time and date were not disputed. The amount of money given was not disputed. It has been determined that the money was given to Paringu.
- 2. The purpose for which the money was given is clearly evident from what the First Respondent said to Paringu. He wanted Paringu to vote for him and Paringu’s subsequent actions were consistent with the instructions from the First Respondent. Under section 103(1), therefore, a person who gives any person any property or benefit on account of anything done by an elector at an election in the capacity of an elector; or, 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 is guilty of bribery. I am satisfied, ultimately, that the First Respondent committed bribery when he gave K50.00 to Paringu with instructions for Paringu to support and vote for him in the 2007 General Elections.[The Supreme Court Judgment Below SC980 dismiss the bribery charge and reinstate him as the duly elected member).
Waranaka v Dusava and the Electoral Commission  (Unreported Supreme Court Judgment SC980, 8 July 2009). In the 2007 National General Elections, Mr. Peter WararuWaranaka won back his Seat in Parliament for the Yangoru-Saussia Open Seat. Mr. Gabriel Dusava, one of the unsuccessful candidates, filed a petition against Mr. Waranaka’s election victory. The National Court heard and determined the petition in favour of Mr. Dusava and ordered a bi-election. That was on the basis of one allegation of Mr. Waranaka bribing one of Mr. Dusava’s strong supporters by giving him K50.00. Being aggrieved by the decision of the National Court, Mr. Waranaka filed an application for review of that decision with leave of this Court. In support of his application, Mr. Waranaka claims essentially that the learned trial judge erred in: (a) not applying the correct and relevant principles governing the assessment of the credibility of witnesses; (b) failing to state and ensure that he was satisfied on the required standard of proof, namely proof beyond any reasonable doubt that the alleged offence of bribery was committed; and (c) failing to allow himself to be satisfied beyond reasonable doubt as to the intention or purpose for Mr. Waranaka giving an elector K50.00.
The Court in upholding and granting the review said that the decision of the National Court sitting as a Court of Disputed Return was quashed and confirm Mr. Waranaka’s election said:
“We are satisfied that Mr. Waranaka made out his case for the grant of his review. We therefore uphold and grant the review. Consequently, we would quash the decision of the National Court sitting as the Court of Disputed Returns for the Parliamentary Open Seat for Yangoru –Saussia in the 2007 National General Elections, dated the 23rd of April 2008 and confirm Mr. Waranaka’s election”.
By: Mek Hepela Kamongmenan LLB