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Kibeto v Soloma [2023] PGNC 201; N10422 (3 August 2023)

N10422

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 60 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
OKAPA OPEN ELECTORATE

SIMEON KIBETO
Petitioner

V

SAKI HACKY SOLOMA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Berrigan J
2023: 14^th, 15^th, 19^th, 20^th & 28^th June; & 3^rd August

ELECTION PETITION – BRIBERY – Organic Law on National and Local-level Government Elections – Section 215(1) and (3)(a) of the Organic Law on National and Local-level Government Elections – Sections 103(a)(i), (a)(iii), and 103(d) of the Criminal Code – Elements of Offences – Petition dismissed.

The Petitioner alleged that the First Respondent conducted a large campaign rally at his village of Yakaraisa in Okapa District during the campaign period at which food and money was given to Jericho Auyana by Hayes Ane, in the presence of the First Respondent and with the instruction that he must vote for the First Respondent, following which Jericho Auyana immediately shook hands with the First Respondent who told him that having taken the money, he must now give him his preferences.

Held:

(1) The evidence failed to establish that Hayes Ane personally gave any cash to Jericho Auyana, or that either Hayes Ane, the First Respondent, or any other person, told Jericho Auyana that he must vote for, or give his preferences to, the First Respondent.

(2) The gathering at Yakaraisa was customary in nature, for the purpose of saying “sori” to the First Respondent following a violent attack against him and his supporters on the day of his nomination a few weeks earlier. Food and cash presented to the First Respondent as part of custom was redistributed at his direction in accordance with the same custom. The evidence failed to establish that it was done with the intention of inducing Jericho Auyana or any other person to vote for the First Respondent.

Petition dismissed.

Cases Cited

Simeon Kibeto v Saki Hacky Soloma (2023) N10173
Kopaol v Embel (2003) SC727
Diau v Gubag (2004) SC775
Isoaimo v Aihi (2012) N4921
Aihi v Isoaimo (Decision on Petition) (2023) N10368
Leonard v Wesley (2014) N6552
Neville Bourne v Manasseh Voeto [1977] PNGLR 298
Peter Waranaka v Gabriel Dusava (2009) SC980
Aide Ganasi v Sali Subam (2013) SC1277
Maraga v The State (2009) SC968
James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173
Aihi v Isoaimo (2013) SC1276

References Cited

Section 215, Organic Law on National and Local-level Government Elections
Sections 7 and 103, Criminal Code

Counsel

C Copeland, for the Petitioner
C Mende, for the First Respondent
L Tangua, for the second respondent

DECISION ON PETITION

3^rd August, 2023

1. BERRIGAN J: This is a decision following trial on the allegation made in a petition filed by the Petitioner and unsuccessful candidate, Simeon Kibeto, disputing the election of the First Respondent, Saki Hacky Soloma, as the successful candidate for the Okapa Open Electorate in the 2022 National General Election (NGE).
   
2. The Petitioner seeks declarations that the election is absolutely void and that the First Respondent was not duly elected, together with an order that the Electoral Commission, the Second Respondent, conduct a by-election.
   
3. Objection to the competency of the petition was dismissed: Simeon Kibeto v Saki Hacky Soloma (2023) N10173.
   

THE PETITION

4. The petition filed on 12 September 2022 contained two grounds. The second ground was withdrawn, with leave, over objection.
   
5. The remaining ground alleges bribery:
   

A person other than the First Respondent, namely Hayes Ane, with the knowledge and authority of the First Respondent, on 22 July 2022, committed an illegal practice, namely bribery, within section 215(3)(a) of the Organic Law on National and Local-level Government Elections. The conduct relied on is set out in the Facts above, sub heading Bribery Case and constitutes the offence of bribery under section 103(1)(d) of the Criminal Code. The facts relied on are paragraphs 1 to 17 above.

6. In particular that:
   

Hundreds of people attended the campaign gathering. Whilst Jericho Auyana was there, food and money were distributed by First Respondent and his people from Ward 09, East Okapa LLG, by calling out the ward names and presenting them food and money.

A male leader, Hayes Ane, from Oradatu Village, Ward 9, West Okapa LLG with the help of some of First Respondent’s electoral officers took part in the distribution.

At around 3.00pm to 5.00pm, the announcement was made for Ward 02, East Okapa LLG, to come forward and receive food and money. Since Jericho was present at the location, he was told to collect two lamb flaps cartons and K1, 000.

All the while, whilst the event was taking place, First Respondent was present, witnessed the whole event and was fully aware of the distributions of food and the cash moneys.

Hayes Ane in the presence of First Respondent gave Jericho Auyana K1, 000 and said to him, ‘yu mas vote lo Saki’. Immediately after the K1, 000 was given to Jericho Auyana the First Respondent shook hands with Jericho Auyana and told him, ‘mi save olsem yu gat candidate pinis tasol yu kisim money pinis, yu mas givim tu na tri vote lo me’.

Jericho Auyana understood that the First Respondent said, he, the First Respondent knew that Jericho Auyana supported another candidate but because he, Jericho Auyana, had received the K1, 000, he should cast his second and third votes for First Respondent.

Jericho Auyana, understood that by taking the K1, 000 and two lamb flaps cartons he needed to vote for the First Respondent.

Hayes Ane gave Jericho Auyana the K1, 000 to induce him to vote for the First Respondent, and this was done with the knowledge and authority of the First Respondent.

Whilst Jericho Auyana was there in Yakaraisa village, he saw many people in attendance, including Kalabe Yabaimanta, Kepi Anako, Enos Patrick Osborne, Zaukave Yokom, Moses Mosko, Vincent Amai, and Chris Pito, who were all from various wards in East Okapa LLG present at Yakaraisa on that day.

The above said conduct of the First Respondent’s agent, Hayes Ane (paragraph 6) in giving the K1, 000 and two lamb flaps cartons to Jericho Auyana, in the circumstances and accompanied by the words as set above, constituted bribery within the meaning of section 103(d) of the Criminal Code (Schedule 1, Criminal Code Act Chapter 262).

The said bribery was committed by Hayes Ane with the First Respondent’s knowledge and authority pursuant to section 215 (3)(a) of the Organic Law on National and Local-level Government Elections.

7. It is not in dispute that the Petitioner and the First Respondent were both candidates in the 2022 National General Election for Okapa Open Electorate, for which writs were issued on 12 May 2022.
   
8. It is also not in dispute that there was a gathering of hundreds of people at Yakaraisa Village on 22 June 2022 and that during that gathering food and cash was distributed to representatives from each of the 25 or more wards of Okapa District present that day.
   
9. In short it is the Petitioner’s case that this was a campaign rally hosted by the First Respondent at which food and money was physically handed over to Jericho Auyana by Hayes Ane in the presence of the First Respondent and with the instruction that he must vote for the First Respondent, following which Jericho Auyana immediately shook hands with the First Respondent who told him that whilst he knew that he had another candidate, he had taken the money and must now give him his second and third preferences.
   
10. It is the First Respondent’s case that the gathering was principally a customary gathering organised by his community and campaign committee to say “sori” to him following a violent attack against him and his party by supporters of other candidates on the day of his nomination, a number of weeks earlier, on 27 May 2022. Gifts of food and cash were presented to the First Respondent and then redistributed in accordance with custom. He denies that he was present when Jericho Auyana received K1000 cash, that he shook hands with him or told him or anyone else to give him his preferences. Hayes Ane denies that he physically gave cash to Jericho Auyana or told him or any person to vote for the First Respondent.
    

GOVERNING LAW

Section 215

11. Section 215 (voiding petition for illegal practices) of the Organic Law states (emphasis mine):
    

(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.

12. It is settled that “bribery” in s 215 of the Organic Law means one of the offences of bribery created by s 103 of the Criminal Code: Kopaol v Embel (2003) SC727, Diau v Gubag (2004) SC775, Isoaimo v Aihi (2012) N4921 at [8].
    

S 103(a)(i), 103(a)(iii) and 103(d) of the Criminal Code

13. Section 103 of the Criminal Code provides:
    

A person who–

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind–

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) on account of any person acting or joining in a procession during an election; or

(iii) 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; or

(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph

(e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,

is guilty of a misdemeanour.

14. Section 103 of the Criminal Code is a complex section, by which I mean that it creates multiple offences not only across but within each of its subsections: Aihi v Isoaimo (Decision on Petition) (2023) N10368 at [108].
    
15. The petition expressly alleges an offence contrary to s 103(d) of the Criminal Code. Whilst not stated expressly, the petition also effectively alleges offences against s 103(a)(i) and (a)(iii) of the Criminal Code, on the part of Hayes Ane, with the knowledge or authority of the First Respondent for the purpose of s 215 of the Organic Law, or by the First Respondent as a party to the offences by Hayes Ane, pursuant to s 7(b)(c) or (d) of the Criminal Code: see Aihi v Isoaimo (Decision on Petition) (2023) N10368 at [155] to [162] for a discussion of the operation of s 7 in this context.
    
16. The elements of s 103(a)(i) of the Criminal Code are that a person:
    
    1. gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure;
    2. to, on, or for, any person;
    100. any property or benefit of any kind;
    4. on account of anything done or omitted to be done, or to be done or omitted to be done;
    5. by an elector at an election in the capacity of an elector.
       
17. The elements of s 103(a)(iii) of the Criminal Code are that a person:
    
    1. gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure;
    2. to, on, or for, any person;
    100. any property or benefit of any kind;
    4. 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.
       
18. The elements of s 103(d) of the Criminal Code are that a person:
    
    1. advances or pays any money;
    2. to or to the use of any other person;
    100. with the intent that the money will be applied for any of the purposes referred to in s 103(a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose.
         
19. I remind myself that the standard of proof to be applied is to the entire satisfaction of the Court and that is equivalent to or just short of the criminal standard of proof, namely proof beyond reasonable doubt: Leonard v Wesley (2014) N6552, applying Neville Bourne v Manasseh Voeto (1977) PNGLR 298; Peter Waranaka v Gabriel Dusava (2009) SC980; Aide Ganasi v Sali Subam (2013) SC1277, amongst others.
    

PETITIONER’S CASE

20. The principal witness for the Petitioner is Jericho Auyana. He is from Ilasa Village and is an elector for the East Okapa Rural LLG Ward 2 Awarosa. His evidence is that after hearing that the First Respondent would be holding an election campaign gathering he travelled with people from Awande Village on 21 June 2022 in a truck to Yakaraisa village where he spent the night. The following morning he went to the venue for the gathering, a field. In the centre of the field hundreds of people had gathered to participate in a campaign rally. The First Respondent is from West Okapa LLG and had a lot of his people there. At the centre of the field was a podium, on which there were people, including the First Respondent. Chris Pito was coordinating East LLG’s participation. Chris asked if there were people from each ward present to collect food and money. He told Chris Pito that he was there from Ward 2, East Okapa Rural LLG, and Chris told him that when they called his ward he was to go up to the podium and collect food and money. He found a place amongst the crowd and watched representatives go up to the podium to accept food and cash starting with West Okapa LLG and then East Okapa LLG.
    
21. When his ward was called, between 3 and 5 pm, he went up to the podium. On the podium was Hayes Ane, the First Respondent and other men sitting on a form, all close together. Hayes Ane took cash from an envelope, counted it and gave it to him, saying “Yu mas vote lo Saki”. Hayes Ane indicated he was also to take two cartons of lamb flaps.
    
22. He took a few steps to shake hands with the First Respondent who said “Mi save olsem yu gat candidate pinis tasol yu kisim money pinis, yu mas givim tu na tri vote lo mi”. He returned to sit with the crowd and watched the remaining wards for East Okapa LLG receive their share of food and money.
    
23. Late in the afternoon the event concluded and the delegates vacated the field. He was not able to go home that day because he had no transportation to return to Awande Village, so he overnighted at Yakaraisa. He travelled back the following day, where he gave K200 to his in-laws, together with the lamb flaps.
    
24. Timon Tubisa, of Awande Village, East Okapa LLG, was called to corroborate. He said in his affidavit that he was also at the gathering on 22 June 2022 at Yakaraisa. He saw Hayes Ane, a supporter of the First Respondent, and some men actively taking part in organising the speeches, food and cash. He saw the distribution of food and cash in large amounts by Hayes Ane and other appointed persons. He saw Jericho Auyana called by his LLG to collect food and cash. Hayes Ane called out his own ward, Ward 10, East Okapa LLG, so he walked up to the podium and received K2000 in cash. Hayes Ane shook his hand and he proceeded to shake the hands of the other men on the podium including the First Respondent who said: “mi save u gat candidate blo u, tasol u kisim money pinis, u mas tingim mi lo vot tu na tri blo u”; and “Yumi win pinis”. He says that whenever there is a gathering Hayes Ane is with the First Respondent. At around 5pm the event came to an end, so he travelled back on the truck to Awande village.
    
25. The final witness for the Petitioner was Saki Mafe, of Ward 4, Kripaga Village. He said in his affidavit that he too was at the gathering. Everyone’s attention was centred on the podium where all the delegates were seated, among them was the First Respondent. He knows Hayes Ane as a supporter and staffer of the First Respondent and has seen him at numerous other gatherings with him. Hayes Ane was actively organising speeches, and the distribution of food and cash to the representatives of each ward in East and West Okapa LLG. He saw the distribution of food and cash in large amounts by him and other appointed persons. He saw Hayes Ane sitting next to the First Respondent. He saw representatives called by individual wards according to their LLGs and they came and took cash and food from Hayes Ane and shook hands with the delegates seated on the podium, including the First Respondent. He saw a representative from his ward, Benjamin Ohio, receive their share of money and food. He saw Benajmin walk down from the podium afterwards and walk to where he and other boys from his ward were seated. Benjamin Ohio gave him K300 and said: “yu na ol mangi blo yumi skelim moni blo Saki na, yupla mas timgim em lo vote tu na tri blo yupla”. The gathering finished at 4 or 5 pm the same day and he travelled by road on a truck back to Goroka.
    
26. The witnesses for the Petitioner failed to impress me. Having heard and observed them whilst giving evidence I am unable to accept any of them as a witness of truth. I make these findings having regard to the content of their evidence by itself and in the context of the case as a whole, and bearing in mind that I may accept or reject any part of a witness’ evidence: Maraga v The State (2009) SC968; James Pari & Bomai Tine Kaupa v The State [1993] PNGLR 173.
    
27. The key witness, Mr Jericho Auyana, was particularly unimpressive. He was at times hesitant and defensive. His evidence lacked detail and was contradictory or contrary to common sense.
    
28. His affidavit refers to a podium no less than six times. In oral evidence he was given ample opportunity to explain himself and repeatedly referred to there being a “stage”, “cube” or “box” in the centre of the field on which Hayes Ane and the First Respondent were seated. I am satisfied having regard to the other evidence in the case that there was no such podium.
    
29. He also described those on the podium as sitting very closely together on a form, made out of wood, when there is no evidence from any other witness to support his evidence that there was any such form.
    
30. When given a final opportunity to clarify his evidence in re-examination he described a podium as a little fence in the middle of the village with platforms around for people to sit on. There is no evidence of any such platforms from any other witness in the case.
    
31. I reject his evidence that there was a podium, that the First Respondent sat on it on a wooden form, or that there were any platforms around it.
    
32. A lot was made of the fact that it was not put to Jericho Auyana in cross-examination that he was already a coordinator for the First Respondent before he attended the gathering. The Petitioner was on notice that Jericho Auyana was recorded as being one of those whose name appeared on a list of persons who had given their names for the purpose of being a coordinator. Jericho Auyana gave no evidence at all about that matter or whether or not he was already a coordinator. Hayes Ane’s evidence was that the call was made because supporters had “scattered” after the incident at Okapa Station. In my view it is highly like that many of the 216 persons listed were already coordinators at that stage of the election process. Furthermore, I accept the evidence of Chris Pito that Jericho Auyana was a coordinator for the First Respondent prior to 22 June 2022. But all of this is beside the point. The First Respondent does not dispute that Jericho Auyana received cash on 22 June 2022 only that he physically received it from Hayes Ane, in the immediate presence of the First Respondent, and with instructions from either of them to vote for the First Respondent.
    
33. Critically, Jericho Auyana’s evidence about Hayes Ane was unreliable. In his affidavit he identified the person who personally or physically handed him the cash as Hayes Ane without any qualification. He did not say, for example, that he was given cash by a person whom he later came to know as Hayes Ane. Nor did he immediately clarify this evidence when given an opportunity in oral testimony. He insisted under initial cross-examination that it was Hayes Ane. When it was put to him that Hayes Ane would say that he was not personally distributing cash he said that Hayes Ane was lying and reiterated that it was Hayes Ane who gave him the cash. He also maintained that it was Hayes Ane who told him that he must vote for the First Respondent. It was only when it was put to him that another person, Oromo Avigi, would give evidence that he was the one who was actually handing out cash to the respective wards that he said that he did not know if it was Hayes Ane or Oromo Avigi who was giving the cash out but “lots of guys said that Hayes Ane was giving out the cash so I said Hayes Ane”. This seriously undermines his credibility, particularly when taken with the other deficiencies in his evidence.
    
34. Timon Tubisa was equally unimpressive.
    
35. He maintained that there was a podium, or in his words “a grandstand”, with flowers, food and decorations and that the speakers were standing on top of it. As I have said, I don’t accept that there was a podium having regard to all of the evidence.
    
36. In his affidavit Timon Tubisa said that whenever there is a gathering at a village in Okapa, Hayes Ane is with the First Respondent. Under cross-examination he too initially maintained that Hayes Ane was present and the one physically distributing money. But his evidence as to whether he knew Hayes Ane personally was evasive and he eventually agreed that he did not know Hayes Ane but that “they were calling his name” and that is how he knew his name. Who “they” were and when they called his name was not made clear.
    
37. Moreover, when it was put to him that the First Respondent would deny that he told anyone to vote for him he said that it was “only Hayes Ane” who told him to give the First Respondent his second and third vote. This is in stark contrast with his affidavit, however, in which he said that it was the First Respondent himself who told him to give him his second and third votes using words which it is observed almost mirror the words that Jericho Auyana said in his affidavit that the First Respondent said to him. In addition, the witness was evasive when pressed for detail, ultimately saying that whatever he had to say he had said it already.
    
38. Furthermore, I accept the evidence of Winnie Parun, 38 years old, that Timon Tubisa was not present that day, or at least did not receive any food or cash on behalf of Ward 10. Her evidence is discussed further below but in short, she is from the same village as Tubisa, is like a mother to him, and was one of the two representatives who did receive food and cash on behalf of Ward 10. I accept her evidence that if he was there he would have stayed with the people from his village. Putting that aside, she would hardly have failed to observe him collect cash and food for her ward if he had done so. She impressed me as truthful and her evidence is consistent with the evidence of Oromo Avigi, 38 years old, a community leader from Karamasu Village, Ward 9, who gave evidence that there were two distributions for Ward 10, and that they were collected by Winne Parun and another person by the name of Jim Arusa.
    
39. The evidence of the Petitioner’s final witness, Saki Mafe, was also contradictory and unconvincing. He maintained that he knew Hayes Ane but was unable, despite being given the opportunity at different times during his evidence, to explain how he knew him, other than to say that he knew him “on the politics side”. When the Court asked Saki Mafe how long he had known Hayes Ane he could say only that he had come to know him “during the election time”. Contrary to his affidavit evidence that the First Respondent and others were seated on a podium, he initially said during oral testimony that there was no podium and that the leaders were standing close together on the ground with a rope tied around to make it look like a grandstand. In response to the very next question, however, as to what the rope was tied around he said that “they did not tie a rope around but that the leaders were there, running the program, standing there”.
    
40. I also reject his evidence that Benjamin Ohio told him and the other boys present from Ward 4 that they must give their preferences to the First Respondent.
    
41. Benjamin Ohio was summoned by the First Respondent. He was an impressive witness. He gave clear evidence in a straightforward manner about what happened that day and about custom. He was able to recall various details when called upon to do so. He was not guarded. He agreed that the gathering was both “custom work and election work”, a matter I will return to below. I accept his evidence that he is from the same village as Saki Mafe and that Saki Mafe was not there that day, or at least that he did not give him K300 or say anything to him.
    
42. It follows from the above findings that the Petitioner’s case is hopelessly flawed.
    
43. In summary, the witnesses were so lacking in weight and credibility that the Petitioner has failed to establish to my entire satisfaction, or at all, that the cash and lamb flaps were given to Jericho Auyana by Hayes Ane, or that Hayes Ane, or Oromo Avigi or any other person for that matter, said to him that he must vote for the First Respondent, or that any such thing took place in the presence of the First Respondent. The evidence also fails to establish that the First Respondent spoke to Jericho Auyana after he received the cash and lamb flaps, or at any time, and told him to give him his second and third preferences.
    
44. I do wish, however, to set out briefly my findings as to the events at Yakaraisa on 22 June 2022.
    

First Respondent’s Case

45. The First Respondent gave evidence and called four witnesses whose affidavits were admitted, together with a number of photographs and other documents.
    
46. The First Respondent and each of those witnesses impressed me as witnesses of truth. Their affidavits read consistent with them being translated from their own words, reflecting their various levels of education and experience. The evidence of each was generally consistent with the First Respondent’s case as a whole but not such that it appeared to have been contrived. The evidence of each was clear and in keeping with common sense. It contained expected detail and each were readily able to respond to questions in cross-examination and from the bench about matters not previously raised.
    
47. With particular respect to Hayes Ane, the alleged principal, he was an impressive witness. His evidence was corroborated by the First Respondent’s other witnesses. I reject the suggestion that his evidence under cross-examination that he did not personally give cash to someone from East Okapa Ward 2 is a recent invention or inconsistent with his affidavit evidence. His affidavit describes what he did that day. He expressly says in the affidavit that he did not give any money specifically to any person for any specific purpose.
    
48. It is the case that Oromo Avigi did not mention in his affidavit that it was he who personally distributed the cash at the gathering. His affidavit was in somewhat general terms describing what the organising committee or “we” did rather than particular members of it. But his oral evidence was clear and convincing and consistent with the evidence as a whole. I accept it.
    
49. A further witness, Benjamin Ohio, was summoned by the First Respondent and did attend to give evidence. He did not provide an affidavit but it appears that a summons was issued during the pre-trial stage process and no additional time to prepare cross-examination was sought. As above, I found him credible.
    
50. Returning to the case itself, the evidence from the First Respondent and Chris Pito, 50 years of age, from Keakasa Village, Ward 8, East LLG, Okapa District, and Oromo Avigi, about the events at Okapa Station on 27 May 2022, was straightforward and compelling. There was no real challenge to it by the Petitioner.
    
51. I find that on 27 May 2022 the First Respondent was heading into Okapa Station accompanied by a large group of supporters on vehicle and on foot to make his first public appearance to launch his campaign when they were attacked by, it is reasonable to infer, supporters of other candidates with sticks, stones, rubber guns and sling shots. A fight broke out and the First Respondent and his supporters ran for their lives in different directions. The First Respondent himself was chased into the bush with a number of supporters, including Chris Pito, until they could go no further and prepared to surrender before they were rescued by some members of the Seventh Day Adventist Church who blocked the attackers and took them to their church until they could return to their respective villages.
    
52. After the attack it was reported to the First Respondent that several people had sustained very serious injuries with many others suffering minor injuries. Two high school girls were reportedly kidnapped and raped. Six vehicles were reportedly burnt out.
    
53. On the evidence of the First Respondent, Chris Pito, Oromo Avigi and Hayes Ane I find that the First Respondent was traumatised, at least in lay man’s terms, by the attack. He did not leave the house and was not campaigning.
    
54. Hayes Ane, who is an executive member of the First Respondent’s campaign team decided with other members of the team that they should hold a gathering at Yakaraisa, the First Respondent’s village. I am satisfied for the reasons outlined below that the primary purpose of the gathering was to say sorry to the First Respondent in accordance with custom following the events at Okapa Station.
    
55. Word was sent out across Okapa District through the First Respondent’s supporters and people from about 25 of the 34 wards of Okapa District attended, some travelling one or two days to do so. At least some, like Winnie Parun and Benjamin Ohio, arrived one or two days beforehand and stayed overnight, in their local groups, whilst others arrived the morning of 22 June 2022. According to Benjamin Ohio they slept outside in accordance with sori custom.
    
56. The sori ceremony started on the morning of 22 June 2022. It was chaired by Hayes Ane, who held a loud hailer or mega phone and welcomed the First Respondent’s supporters in their respective ward groups to the gathering. The ceremony was conducted in the middle of the new dirt road. There were five or six green plastic chairs on which the First Respondent was seated with others, including at least at one time, two other candidates for Okapa Open, Job Odimi and Jimmy Wario.
    
57. Some women wore black clothing and covered their faces in mud to show that they were in mourning. Representatives from the wards came forward to shake hands or embrace the First Respondent and some cried with him. All but a few wards presented gifts. In total about 100 pigs, two goats, much garden food, like kau kau, taro, banana, and yams, together with more than K71,000 in cash was given to the First Respondent.
    
58. Members of the First Respondent’s executive committee received the gifts and one of them, Buison Sami, was tasked with keeping a record of contributions.
    
59. As above, Winnie Parun was one of those who attended from Ward 10, Okapa District, East LLG. She is the Women’s Representative on the District Development Authority. Her evidence about Okapa Station is hearsay but I accept her understanding that her brother was one of those attacked and that his vehicle was destroyed. She and 33 people from her village, including her brother, attended the gathering at Yakaraisa, arriving two days beforehand and bringing with them one pig, kau kau, banana and K1020 in cash. She was also among the two or three representatives from each of the wards that were allowed by the organisers to express their sorrow to the First Respondent in person. She and her brother hugged the First Respondent and cried with him. Ms Parun became emotional when recalling that part of the event and I accept that her emotion was genuine.
    
60. Speeches were made by representatives of all the wards that attended.
    
61. In addition, three candidates for Okapa Open District, namely Job Odimi, Jimmy Wario and Bruce Java attended, together with Eastern Highlands Regional candidate Robert Kembil. They told him that they wanted to say sorry for the way that other Okapans had treated a leader and wanted to show their sorrow. They presented money, food and some pigs.
    
62. The First Respondent then addressed the crowd. According to his affidavit he thanked everybody especially his committee and all supporters who came to share their sorrow and grief with him and his family and in doing so had given him tremendous strength and confidence to look forward to tomorrow and the days ahead. He also told the crowd that he forgave all those who attacked him and his supporters causing pain and misery, and that the attack shows that there are still sections of the society who are not happy with his leadership despite what he delivered over a vast land mass with limited resources. He assured his supporters that if they win in the next term he will try his best to reach out to those who have rebelled against his leadership. He said sorry to those who fell victim during the attack and extended his sorry to their family and community and thanked them for their continued support. He thanked all supporters for his win in 2017 and told them that he felt encouraged with the enormous support shown in the gathering and asked them to be steadfast as they go into polling. He outlined everything he had done in the last five years of his term. Finally, he thanked everyone again, and wished them good luck and told them he cannot eat everything so told his committees to redistribute everything so that they all part take in the ceremony. He told them to take the food home and use the cash for their transport costs and to buy soap and to wash the mourning and sorrow mud from their faces.
    
63. To the gifts the First Respondent and his family contributed store-bought food including rice, sugar, tea, coffee and noodles. He told his committee and family to redistribute everything to all the wards that came to the ceremony having regard to the number of people present from each ward so that there was fairness in the distribution.
    
64. Redistribution started sometime after 12 pm. The evidence about where everybody was situated at various times during the day could have been clearer but it does establish that the distribution of food and money took place at least 15 to 20 metres, possibly more, from where the First Respondent was seated.
    
65. As chairman, Hayes Ane coordinated the redistribution. He was standing up at the time and called wards forward one at a time. Representatives collected cash from Oromo Avigi who was holding it in a green bag. Food was collected from where the working committee was sitting, which appears to have been close by. Hayes Ane was standing about 15 to 20 metres from where Oromo Avigi was.
    
66. Apart from being consistent, the evidence of the First Respondent’s witnesses is in keeping with common sense.
    
67. A physically large amount of food had been given to the First Respondent, not to mention 100 or more pigs and a couple of goats. All of this was with the committee who took charge of and was tasked with dividing it up. As one would expect, Hayes Ane, as the person responsible for coordinating the distribution of food and cash to representatives from about 24 wards, amongst a total crowd of hundreds of people, was standing up at the time, and holding a loudspeaker. He was not sitting down immediately beside the First Respondent, counting and retrieving cash from what one can only imagine on Jericho Auyana’s affidavit must have been an oversized envelope.
    
68. It also makes sense that the ward representatives would be directed to receive cash from another person, namely Oromo Avigi, who retrieved it from a bag that he was holding, in amounts determined by the committee.
    
69. Whilst it is the case that the First Respondent personally received the gifts and embraced ward representatives as part of the ceremony in the morning it is also in keeping with common sense that the redistribution process took place some distance from the First Respondent and that during that time he was with his security team, particularly given the events at Okapa Station.
    
70. In addition, the evidence establishes that distribution commenced with wards from West Okapa before progressing to East Okapa and took several hours, at least until 5pm. The First Respondent went back to his house during the afternoon and whilst it is not necessary to my finding, it is highly likely that by the time Jericho Auyana’s ward was called, the First Respondent was already back in his house.
    
71. As above, I have already found that the Petitioner has failed to prove the allegation particularised in the petition.
    
72. The more interesting question, which was not raised by the Petitioner and was not directly addressed by the parties, was whether the First Respondent’s own evidence and that of his witnesses established that the mere fact that food and cash was given to Jericho Auyana by Oromo Avigi as part of the redistribution, which took place at the direction of the First Respondent, was intended to induce him to vote for the First Respondent.
    
73. I don’t accept as a matter of law that a supporter cannot be bribed: Aihi v Isoaimo (Decision on Petition) (2023) N10368 at [114] to [123]. Nor do I accept the submission by the Second Respondent that a bribe must by its nature be concealed. The offences under s 103(a) of the Criminal Code do not require that, only that the benefit is given or promised with the requisite intent. The fact that a benefit is conferred on a supporter or in public might suggest, on an evidentiary basis, a lack of intention but generalised propositions like that are unhelpful and as for any offence the presence of the elements must be determined on the facts and circumstances of the case at hand.
    
74. Furthermore, the Courts have made it clear that a candidate must not distribute benefits under the guise of customary practice with the intention of inducing any elector to vote for them: Aihi v Isoaimo (2013) SC1276, amongst others.
    
75. The First Respondent and his witnesses maintained that the gathering was not a campaign rally but a customary gathering the purpose of which was to say sorry to the First Respondent for what had happened at Okapa Station. They were, however, candid in their affidavit and oral evidence that the gathering was also intended to bring the First Respondent’s supporters together and consolidate his campaign before polling started. Hayes Ane went so far to say that many supporters had lost confidence in the First Respondent following the attack. The speeches which the First Respondent set out in some detail in his own affidavit, referred to above, demonstrate that there was a political element to the gathering.
    
76. As does the fact that there was a call for campaign coordinators.
    
77. It is also the case that other candidates attended the event. Chris Pito agreed that it is not uncommon for candidates in the Eastern Highlands to campaign together with a view to securing their rival’s preferences.
    
78. Regardless of those matters I am satisfied that the gathering at Yakaraisa was first and foremost customary in nature.
    
79. The First Respondent, Hayes Ane, Chris Pito, Oromo Avigi, Winnie Parun and Benjamin Ohio all gave evidence about the customary practice, which was essentially consistent and to the effect that according to Okapa custom a person who suffers a life threatening or near-death experience is said to have their spirit taken away, to be “a dead person alive”. The family and community of that person go into mourning. They slaughter a pig and bring food and gifts to the affected person to show them that they are sorry for what has happened, or to share their grief or sympathise with them in other words. In addition, they sing songs of sorrow for the mountains and the rivers to summon the affected person’s spirit and restore their peace of mind.
    
80. Oromo Avigi and Winnie Parun described how the custom was practised in their own community, for Oromo himself and for Winnie’s brother, respectively, following the incident at Okapa Station. The gathering at Yakaraisa was for the First Respondent, a leader, and so it follows it was very large.
    
81. There may have been a political aspect to the gathering but that is because the First Respondent and his supporters were attacked in the context of the election campaign.
    
82. Moreover, the food and money distributed at the event was not distributed with the intention that it induce anyone to vote for the First Respondent. It was given to the First Respondent by those who attended the gathering in accordance with custom and was returned to them by him in accordance with the obligations of the same custom.
    
83. Oromo Avigi explained the custom in simple but effective terms: “The custom is like this. Those people who came to say sorry to us, we must also say thank you to them. To hold back the things and not to say sorry is not the way of our custom. So our custom is also to say sorry and thank you”.
    
84. The evidence of the First Respondent, Hayes Ane, Chris Pito, Winnie Parun and Benjamin Ohio was consistent with this. Each were able to describe the custom without difficulty, in their own words.
    
85. The Petitioner made no real attempt to challenge the existence of the custom. The Petitioner submitted that no independent witness was called by the First Respondent to give evidence as to the custom. But it was the Petitioner’s case to make. The burden was on him to establish the case against the First Respondent to the Court’s entire satisfaction. The Petitioner is from Okapa. He has been on notice of the First Respondent’s case since the affidavits were filed in November last year and yet he failed to call any witnesses to dispute the custom. On the other hand the First Respondent’s case was clear and consistent.
    
86. Furthermore, I accept the evidence that the attack at Okapa Station was an attack against the First Respondent and all of his supporters, several of whom had been directly affected. The redistribution was to acknowledge that, thank them for their support, and for not taking the law into their own hands in retaliation. That seems entirely reasonable regardless of custom. I accept the First Respondent’s evidence that there was enormous pressure from some quarters to retaliate.
    
87. In addition, redistribution marked the end of the ceremony, or in the First Respondent’s words “we say rausim haus krai”, and in this case “Go and tell your family that the member is okay, not to krai any more but to go into the election and let the police deal with the matter”.
    
88. Moreover, in general terms the food and money was restored to those who gave it, albeit there was some redistribution having regard to the fact that perhaps one or two wards did not bring any gifts, and the First Respondent contributed some additional store-bought goods. There is nothing to suggest that the addition of those goods or the redistribution according to the numbers of those present in each ward was unreasonable in all the circumstances. There were hundreds of people present, many of whom had travelled a significant distance to be there and stayed at least one night. The fact that there may have been opportunists like Jericho Auyana who took advantage of the customary gathering to personally benefit was unavoidable and was not likely nor intended to assist the First Respondent secure votes. Or in other words, the ceremony was not a cynical attempt to obtain goods and cash from supporters and give them to potential supporters with the intention of inducing the latter to vote for the First Respondent.
    
89. It is possible that some of those who received the food or cash were induced to vote for the First Respondent but I am not satisfied that that was the intention of the First Respondent, Hayes Ane or Oromo Avigi.
    
90. It is also possible that the candidates who attended sought by their presence to win the preferences of the First Respondent’s many supporters present. But there is no evidence that they made political speeches and their contributions were in keeping with the ceremony. I see nothing wrong with them showing solidarity with a fellow candidate who had been attacked.
    
91. In conclusion, I am not satisfied that Hayes Ane or Oromo Avigi sought to manipulate or use custom to distribute benefits with the intention of inducing Jericho Auyana or any person to vote for the First Respondent, or give preferences to the First Respondent, or otherwise to endeavour to procure the return of the First Respondent, for the purpose of s 103(a)(i) or (a)(iii), Criminal Code, or that the First Respondent aided, did an act for the purpose of aiding, or counselled or procured them to do so pursuant to s 7 of the Criminal Code, or that the First Respondent advanced or paid money with the intent that the money be applied for any of the purposes of s 103(a), contrary to s 103(d) of the Criminal Code, or that he knew or authorised them to do so for the purpose of s 215 of the Organic Law.
    
92. That is not to say that I do not think that the sori ceremony at Yakaraisa Village on 22 June 2022 did not effectively relaunch the First Respondent’s campaign which had ground to a halt following what can only be described as an appalling attack not just on the First Respondent and those directly affected but on all those in Okapa who were entitled to exercise their democratic right to participate in the election process without fear or intimidation.
    
93. It is unclear what happened to those responsible at Okapa Station. Without diminishing the harm suffered by those attacked, perhaps there is some consolation in the fact that those who sought to intimidate the First Respondent and his supporters through violence failed. I am quite sure that the sori gathering at Yakaraisa had the effect of consolidating support for the First Respondent and may well have played a part in his ultimate success. There is perhaps some justice in that.
    
94. The petition is dismissed.
    

ORDERS

95. I make the following orders:
    
    • (1) The petition is dismissed.
    • (2) The Petitioner shall pay the costs of the First and Second Respondent, on a party-party basis, to be taxed if not agreed.
    • (3) The security deposit of K5000 shall be paid equally to the First and Second Respondent.
      

_____________________________________________________________
Simpson Lawyers: Lawyers for the Petitioner
Wantok Legal Group: Lawyers for the First Respondent
Tangua Lawyers: Lawyers for the Second Respondent