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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS No.405 of 2012
BETWEEN:
WESLEY KOKE & 20 others whose names are listed in the Schedule attached to the Originating Summons
Plaintiffs
AND:
TOM KIAP - the Returning Officer for Mul Baiyer Lumusa Electorate
First Defendant
AND:
ANDREW S. TRAWEN - the Electoral Commissioner
of Papua New Guinea
Second Defendant
AND:
PAPUA NEW GUINEA ELECTORAL COMMISSION
Third Defendant
Mt. Hagen: David, J
2012: 11 & 12 July
GENERAL ELECTIONS TO PARLIAMENT – application for enforcement of constitutional right – right to vote – polling not conducted at Kulimbu 1 & 2 and Mandawasa 1 & 2, Mul Baiyer Lumusa Electorate, Western Highlands Province as scheduled on date scheduled - criminal elements destroyed all four ballot-boxes allocated for polling – ballot-papers and other electoral documents and equipment not destroyed – no positive or favourable response received to pleas to electoral officers for Western Highlands Province and Electoral Commission to re-poll with new ballot-boxes at Kulimbu 1 & 2 and Mandawasa 1 & 2 – right to vote – qualified right – compliance with requirements of Constitution and Organic Law on National and Local-level Government necessary before right can be exercised – onus on plaintiffs to prove right infringed – standard of proof on balance of probabilities – right of some plaintiffs infringed - powers of Electoral Commission – powers of National Court - application refused.
Cases cited:
SCR No 2 of 1982; Re the Organic Law on National Elections (Amendment) Act 1981 (No 1) [1982] PNGLR 214
Re The New Ireland Provincial Constitution [1984] PNGLR 81
William Dihm v Returning Officer for Moresby South Electorate & Anor [1992] PNGLR 377
Thomas Negints v Electoral Commissioner (1992) N1072
SCR No 4 of 2002; Special Reference Pursuant to Section 19 Constitution, Reference by Francis Damem, Attorney-General (2002) SC689
Electoral Commission & 3 Ors v Pila Niningi (2003) SC710
Oscar Pomaleu & 2 Ors v William Skate Jnr and Anor (2006) SC838
Dr Clement Waine v Andrew Trawen (2007) N3132
Counsel:
Paul J. Othas, for the plaintiffs
RULING ON MOTION
1. DAVID, J: The plaintiffs commenced the substantive proceedings by ordinary originating summons filed on 6 July 2012 seeking a couple of declarations which in essence constitutes their application pursuant to Section 57 of the Constitution. They claim that the right to vote accorded to every citizen guaranteed under Section 50 of the Constitution has been infringed. By notice of motion filed on 6 July 2012, the plaintiffs seek the following principal orders:
"1. The strict requirement of service be dispensed with pursuant to Order 1 Rule 7 of the National Court Rules and Section 155 (4) of the Constitution on the basis of the nature of the orders sought herein.
2. The defendants issue four (4) new ballot boxes with new tags and serial numbers to the affected polling areas of Kulimbu 1 & 2 and Mandawasa 1 & 2 of Mul Baiyer Lumusa Electorate, Western Highlands Province forthwith pursuant to Sections 57 and 155 (4) of the Constitution.
3. The First Defendant be directed by the Second and Third Defendants to conduct polling in the affected polling areas specified in term 2 of this Order within 24 hours pursuant to Sections 57 and 155 (4) of the Constitution.
4. The defendants, their servants, agents or officers be restrained from proceeding with the counting of ballot papers or votes for the entire Mul Baiyer Lumusa Electorate of Western Highlands Province pending the polling in the affected areas specified in term 2 of this Order or until further orders of the Court pursuant to Section 155 (4) of the Constitution."
2. On 12 July 2012, I gave an extemporary judgment refusing the application and undertook to give an amplified judgment containing my full reasons later. This I now do.
3. The requirement for service of documents on the first defendant was dispensed with for the purposes of this application. The Second and Third Defendants were served with documents constituting this application.
4. Leave was granted for the plaintiffs to move their motion ex-parte.
5. At the hearing, Mr. Othas of counsel for the plaintiffs indicated that the relief sought in item 4 of the notice of motion would not be pursued.
6. In support of the application, the plaintiffs rely on thirty affidavits. These are:-
7. Apart from Paul J. Othas, Steve Paka, Namba Lamoa, Pius Mukali, Peter Kelya Jack, Saupingi Mapiso, Peter Pampen, and Mark Neta Pyawa all other deponents are the plaintiffs themselves and an elector whose name appears on the Electoral Roll for ward 25 (Kulimbu 1) namely, Samuel Wari.
8. Paul J. Othas is the counsel for the plaintiffs. Steve Paka and Namba Lamoa are the presiding officers appointed to conduct polling at Kulimbu 1 and 2 respectively. Pius Mukali and Peter Kelya Jack are the presiding officers appointed to conduct polling at Mandawasa 1 and 2 respectively. Reserve Police Constable Saupingi Mapiso and Reserve Police Sergeant Peter Pampen were two of the four policemen assigned to provide security at Kulimbu 1 and 2 and Mandawasa 1 and 2. Mark Neta Pyawa, is a para-legal employed by Paul Othas Lawyers who effected service of the originating process, the notice of motion, an undertaking as to damages signed by all plaintiffs filed on 6 July 2012 and all affidavits supporting this application, but for his, at the Office of the Electoral Commission, Port Moresby on 10 July 2012. The undertaking as to damages was not relied on at the hearing seemingly because the relief sought in item 4 of the notice of motion was not pursued.
9. The facts from the affidavit evidence are pretty much straight forward and I find the relevant facts to be these. The plaintiffs come from Kulimbu 1 and 2 and Mandawasa 1 and 2 villages in the Mul Baiyer Lumusa electorate in the Western Highlands Province. These villages are situated in Wards 25, 26, 27 and 28 respectively. According to the recently updated Electoral Roll summary made up to 7 June 2012 for the Mul Baiyer Lumusa electorate, a copy of which is annexed to Wesley Koke's affidavit as annexure "B", there are 2,349 registered electors from these four villages combined. Kulimbu 1 has 532 electors and Kulimbu 2 has 373 electors. Mandawasa 1 has 912 electors and Mandawasa 2 has 532 electors. Copies of the Electoral Rolls for Wards 25, 26, 27 and 28 made up to 7 June 2012 which are annexed to the affidavit of Samuel Wari as annexures A, A1, A2 and A3 confirm these figures. The plaintiffs claim that all their names are on the Rolls.
10. The date fixed for the one day polling for the current general election to Parliament for the Western Highlands Province was 3 July 2012.
11. On the date of polling, polling officials with electoral materials, documents and other equipment to be used in the polling at these villages including four ballot-boxes and ballot-papers arrived at the Mandawasa Community School at Mandawasa 1 at around 8:00 o'clock in the morning accompanied by four security personnel comprising four policemen in a maroon-coloured Toyota Land Cruiser, open back bearing registration number HAJ 722. Before the polling officials could set up, criminal elements numbering about eight males armed with bush knives and axes rushed out from the nearby bush, threatened polling officials, security personnel and people gathered to vote, took the four ballot boxes earmarked for polling at Kulimbu 1 and 2 and Mandawasa 1 and 2 from the vehicle and destroyed all of them before fleeing into the bush. Other electoral materials, documents and equipment including ballot-papers were not taken, destroyed or tampered with.
12. Polling could not be conducted in these villages with the damaged ballot-boxes. The damaged ballot-boxes and all other electoral material, documents and equipment including ballot-papers were taken to the District Office at Baiyer River and stored away.
13. The plaintiffs by themselves and through their lawyers have pleaded to the defendants including the Assistant Returning Officer for the Mul Baiyer Lumusa electorate and the Election Manager for the Western Highland Province to re-poll in these villages with new ballot-boxes, but they have not received any positive or favourable response from any of them. The plaintiffs numbering 21 and 2,328 other eligible voters have not been accorded a reasonable opportunity to exercise their right to vote as a result.
14. Two main issues arise from this application for my consideration and determination. The first is, whether each plaintiff has been deprived of the right to vote? The second is, if the answer to the first issue is in the affirmative for any of the plaintiffs, whether the right should be enforced by way of the reliefs sought in the motion?
15. Mr. Othas for the plaintiffs basically submits that the failure by the defendants to accede to the plaintiffs' pleas for a re-poll amounts to a breach of their fundamental right to vote. The plaintiffs therefore seek orders against the defendants in the terms that they have pleaded at items 2 and 3 in the motion to enforce their constitutional rights pursuant to Section 57 of the Constitution.
16. The particular right alleged to have been infringed is a basic right accorded to every citizen of Papua New Guinea who is of full capacity and has reached voting age by Section 50 of the Constitution, i.e., the right to vote. That provision states:
"50. Right to vote and stand for public office.
(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—
(a) is under sentence of death or imprisonment for a period of more than nine months; or
(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph,
has the right, and shall be given a reasonable opportunity—
(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and
(e) to hold public office and to exercise public functions.
(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind."
17. The right to vote and stand for public office is amongst seventeen other rights conferred by the Constitution and can be protected or enforced in the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of Parliament under Sections 57 and 58 of the Constitution either on the initiative of the court or on application by a person who has an interest in the protection or enforcement of the particular right: see also Rule 6, Human Rights Rules 2010.
18. The other seventeen rights are; right to freedom (Section 32); the right to life (Section 35); freedom from inhuman treatment (Section 36); protection of the law (Section 37); proscribed acts (Section 41); liberty of the person (Section 42); freedom from forced labour (Section 43); freedom from arbitrary search and entry ( Section 44); freedom from conscience, thought and religion (Section 45); freedom of expression (Section 46); freedom of assembly and association (Section 47); freedom of employment (Section 48); right to privacy (Section 49); right to freedom of information (Section 51); right to freedom of movement (Section 52); protection from unjust deprivation of property (Section 53); and equality of citizens (Section 55).
19. Of these eighteen rights, only the right to life, freedom from inhuman treatment, and protection of the law are regarded as fundamental rights given they are expressed in unqualified terms. The rest are qualified rights.
20. The rights conferred by Sections 43, 44, 45, 46, 47, 48, 49, 51 and 52 can be regulated or restricted by a law that complies with Section 38 of the Constitution. The rest of the rights are not so expressed.
21. Section 50 (2) of the Constitution states that the exercise of the rights in sub-section 1 may be regulated by a law that is reasonably justifiable for the purpose in a democratic society.
22. Section 126 (1) of the Constitution states that elections to Parliament must be conducted in accordance with an Organic Law, by the Electoral Commission. Section 126 (2) of the Constitution states that general elections must be held in accordance with Sections 105 (general elections) and 106 (by-elections) of the Constitution. Section 126 (7) of the Constitution states that an Organic Law shall make provision for and in respect of; the appointment, constitution and procedures of the Electoral Commission, and for safeguarding its independence; the electoral system; safeguarding the integrity of elections; and appeals to the National Court in electoral matters.
23. It is convenient to set out Section 126 below.
"126. Elections
(1) Elections to the Parliament shall be conducted, in accordance with an Organic Law, by an Electoral Commission.
(2) General elections shall be held in accordance with Sections 105 (general elections) and 106 (by-elections), as required.
(3) The members of the Parliament (other than the nominated members) shall be elected under a system of universal, adult, citizen suffrage in accordance with Section 50 (right to vote and stand for public office) and the other Constitutional Laws, and the voting age is 18 years.
(4) A citizen's right to vote in an election to the Parliament is as provided by Section 50 (right to vote and stand for public office).
(5) No non-citizen may vote in an election for the Parliament.
(6) The Electoral Commission is not subject to direction or control by any person or authority.
(7) An Organic Law shall make provision for and in respect of—
(a) the appointment, constitution and procedures of the Electoral Commission, and for safeguarding its independence; and
(b) the electoral system; and
(c) safeguarding the integrity of elections; and
(d) appeals to the National Court in electoral matters.
(8) An Organic Law relating to provinces or provincial government may confer or impose on the Electoral Commission powers, functions, duties or responsibilities in relation to provincial elections."
24. The Organic Law on National and Local-Level Government Elections (the Organic Law) is the law enacted to implement Section 126 of the Constitution.
25. The right to vote is regulated or restricted by the Organic Law. In SCR No 2 of 1982; Re the Organic Law on National Elections (Amendment) Act 1981 (No 1) [1982] PNGLR 214, the Supreme Court held that a law relating to the exercise of rights to vote and stand for elective public office, may, pursuant to Section 50 (2) of the Constitution regulate or restrict the rights, but not prohibit them: see also Re The New Ireland Provincial Constitution (1984) PNGLR 81.
26. The National Court decision in Dr Clement Waine v Andrew Trawen (2007) N3132 is one other case that discusses the right to stand for elective public office which is the right lumped together with the right to vote specified under Section 50 (1) of the Constitution: see also Re The New Ireland Provincial Constitution [1984] PNGLR 81 and William Dihm v Returning Officer for Moresby South Electorate & Anor [1992] PNGLR 377. His Honour, Sevua, J observed that that right to stand for elective public office is regulated or restricted by the Organic Law.
27. In Dr Clement Waine, the plaintiff was an intending candidate for the Simbu Provincial seat during the 2007 general elections to the Parliament. Writs for the general elections were issued on 4 May 2007. Nominations opened the same day and closed on 10 May 2007. The plaintiff was out of the country engaged in employment in the USA at the time therefore he was not physically present in Kundiawa on the last day fixed for nomination to end. With the consent of the plaintiff, his brother signed the nomination form in Port Moresby, had it witnessed by a cousin brother and faxed it from a lodge in Port Moresby to a third party in Kundiawa who then had it delivered in the company of supporters to the Provincial Returning Officer for Simbu before close of nominations. A draw was conducted by the Provincial Returning Officer to determine the order of candidates to be printed on a candidate poster and the plaintiff was allocated the number 14 spot. The Provincial Returning Officer was later instructed by the Electoral Commissioner to remove the plaintiff's name from the official list of candidates for the Simbu Provincial seat.
28. The threshold issue raised in that case for determination was whether the plaintiff nominated according to law? The Court stated that that issue needed to be resolved first before other issues such as whether the defendants, and the Electoral Commissioner breached the plaintiff's right to stand for elective public office under Section 50(1)(d) of the Constitution when they removed the plaintiff's name from the list of candidates for the Simbu Regional Seat after the close of nomination? The Court held that having not fulfilled all the requirements for nomination under the Organic Law and the Regulation, including nominating in person, the result was that the plaintiff did not nominate at all. The Court went on to hold that without a valid nomination, the plaintiff could not claim the right to stand for elective public office, particularly in an election to Parliament, had been breached.
29. In order to assist me determine the two main issues, I need to determine one secondary issue, i.e, who can exercise the right to vote conferred by Section 50 (1)(d) of the Constitution?
30. The right to vote can be exercised by a person who meets five of the following requirements:
31. The use of the word "or" after the semi-colon in Section 50 (1)(a) of the Constitution allows for either of the fourth and fifth requirements to be established. It is therefore not necessary that both the fourth and fifth requirements need to be established.
32. The burden of proof is on the plaintiffs. This follows from the general rule that the burden of proving an allegation or fact in a civil case is upon a party who alleges it and the standard of proof is on the balance of probabilities.
33. Have the plaintiffs complied with the necessary requirements? I will answer this question in the order of the requirements I have set out above.
34. As to the first requirement, Wesley Koke, Samson Melepa, Paul Trambuwa, Mali Pyale, Luke Kiap and Cr. Terry Kiap are all from Mandawasa 1. Cr. Simon Kolalyo, Joe Ponga, Lai Kareyok, Misi Napili and Simon Ponga are all from Mandawasa 2. Yalu Yanda, Jeffery Kundi, Paka Nanowa, Luke Nanowa and Douglas Kilipi are all from Kulimbu 1. Simon Ontege, Iki Pora, Poo Yanda, Rote Rapura and Pawa Lakapuwa are all from Kulimbu 2. I am satisfied that the plaintiffs are all citizens of Papua New Guinea.
35. As to the second requirement, the plaintiffs do not depose in their respective affidavits that they are all of full capacity. However, they all say in their respective affidavits that the statements contained in them were to the very best of their knowledge true in every particular. This is an indication that when they signed their affidavits, they were all of sound mind, memory and understanding. I am satisfied therefore that the plaintiffs are all of full capacity.
36. As to the third requirement, the plaintiffs do not specifically state their ages in their respective affidavits. The Electoral Rolls of wards from which the following plaintiffs come from give their dates of birth as follows:
37. I am satisfied that these plaintiffs are all over the voting age of 18 years.
38. The names of Douglas Kilipi, Yalu Yanda, Rote Rapura, Luke Kiap, Joe Ponga and Simon Ponga do not appear on Electoral Rolls from the wards they are from. They could have used other names by which they are known, but that matter was not brought to my attention. I am unable to figure out the dates of birth of these plaintiffs from other material produced before me. It is therefore uncertain whether or not these plaintiffs are of voting age.
39. From all the material before me, I am satisfied that fifteen of the twenty one plaintiffs identified above are over the voting age of 18 years.
40. As to the fourth requirement, each plaintiff deposes that he went to cast his vote at designated polling areas at Kulimbu 1 and 2 and Mandawasa 1 and 2 only to find that polling could not be conducted at these places because criminal elements had destroyed the four ballot-boxes earmarked for polling there. This can only mean that on 3 July 2012, none of the plaintiffs was in prison either under sentence of death or for any term of imprisonment. Otherwise, they would have all been in prison where the right to vote would only be exercised by prisoners serving sentences of less than nine months. This requirement has been satisfied.
41. As to the fifth requirement, none of the plaintiffs has deposed that he has not been convicted within the period of three years before polling on 3 July 2012. This requirement has not been satisfied.
42. As to the sixth requirement, the plaintiffs depose in their respective affidavits that they are all registered electors in the villages where polling was to have been conducted. That is not true. I am satisfied that except for Douglas Kilipi, Yalu Yanda, Rote Rapura, Cr. Terry Kiap, Luke Kiap, Joe Kiap and Simon Ponga, the rest of the plaintiffs are enrolled on Electoral Rolls of wards their villages fall under.
43. Fifteen plaintiffs namely, Jeffery Kundi, Paka Nanowa, Luke Nanowa, Poo Yanda, Iki Pora, Pawa Lakapuwa, Simon Otenge, Wesley Koke, Cr. Terry Kiap, Samson Melepa, Paul Trambuwa, Mali Pyale, Cr. Simon Kolalyo, Lai Kareyok and Misi Napili have established five of the six requirements on the balance of probabilities. They have established the first, second, third, fourth and sixth requirements. I am satisfied that the right to vote accorded to each of these plaintiffs has been infringed.
44. The remaining six plaintiffs namely, Douglas Kilipi, Yalu Yanda, Rote Rapura, Luke Kiap, Joe Ponga and Simon Ponga have established three of the six requirements on the balance of probabilities. They have established the first, second and fourth requirements. They are not enrolled on the Electoral Rolls for wards 25 (Kulimbu 1), 26 (Kulimbu 2), 27 (Mandawasa 1) and 28 (Mandawasa 2) contrary to what each of them has deposed. I am satisfied that the right to vote accorded to each of these plaintiffs has not been infringed.
45. Having resolved the first main issue in the manner above, I now address the second main issue, i.e, should the Court enforce the right to vote of each of the fifteen plaintiffs identified already by granting the reliefs sought in the motion? This depends on my determining the question whether or not I have power to interfere in the election process? I will have regard to the Constitution, the Organic Law, the Electoral Law (National Elections) Regulation 2007 (the Regulation) and case law in dealing with the issue.
46. According to Section 15 of the Organic Law, the primary responsibility for organising and conducting all elections to the National Parliament in the country is given to the Electoral Commission. The Electoral Commission is constituted by the Electoral Commissioner: Section 5 (2) of the Organic Law.
47. Section 3 of the Electoral Law (National Elections) Regulation 2007 (the Regulation) provides that the Electoral Commissioner has the overall charge of elections unless otherwise stated by the Organic Law and all other electoral officers and officers including Election Managers, Returning Officers, Assistant Returning Officers, Poll Clerks and other polling and scrutiny officials are subject to the direction and control of the Electoral Commissioner on all matters relating to or connected with elections.
48. Section 126 (6) of the Constitution provides that the Electoral Commission is not subject to direction or control by any person or authority.
49. However, the Electoral Commission in its discretion can delegate to an officer all or any of its powers and functions pursuant to Section 18 of the Organic Law. These officers would include; an Election Manager, Returning Officer, and an Assistant Returning Officer. The delegation is made by an instrument in writing and can be revoked in writing at will. Moreover, notwithstanding the making of a delegation, it is my respectful view that the Electoral Commission is not prohibited from exercising the powers and functions it has delegated. Schedule 1.10 (3) of the Constitution appears to supports that view.
50. Section 18 of the Organic Law states:
"18. Delegation.
(1) The Electoral Commission may, by instrument in writing, delegate to an officer all or any of its powers and functions under this Law (except this power of delegation and any prescribed power and function), so that the delegated powers or functions may be had, exercised and performed by the delegate in relation to such electorate or electorates, or to such matters or class of matters, or to the whole of the country or such part of the country, as is specified in the instrument of delegation.
(2) Every delegation under Subsection (1) is revocable, in writing, at will.
(3) No delegation under this Section prevents the exercise or performance of a power or function by the Electoral Commission."
51. Schedule 1.10 (3) of the Constitution states:
"(3) Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a Court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision."
52. An Election Manager is the administrative and management representative of the Electoral Commissioner in a province. He is given such powers as are delegated to him by the Electoral Commissioner: see 18 of the Organic Law and Section 4 of the Regulation.
53. A Returning Officer for each electorate is appointed by the Electoral Commission pursuant to Section 19 of the Organic Law by publication in the National Gazette. The requirement is mandatory. His primary function is to ensure that the provisions of the Organic Law are complied with when conducting elections within the electorate he is responsible for, subject to any direction of the Electoral Commission. The tasks a Returning Officer is responsible for are set out in Section 118 of the Organic Law and Section 5 (1) of the Regulation. Some of the tasks, to name a few, are; maintaining the Electoral Roll for the electorate; supervising officers and electoral officers junior to him including Assistant Returning Officers, presiding officers, poll clerks and other polling and counting officers; and conducting elections in the electorate including appointing presiding officers, assistant presiding officers, poll clerks and door-keepers.
54. An Assistant Returning Officer is appointed by the Electoral Commission pursuant to Section 20 of the Organic Law. His responsibilities are set out at Section 6 of the Regulation, but generally to assist the Returning Officer in conducting elections in the electorate the Returning Officer is responsible for.
55. What this all boils down to is that, the ultimate authority for organising and conducting all elections to the National Parliament in the country is the Electoral Commission. The Electoral Commission has wide powers and discretions in relation to the conduct of polling. The electoral officers and officers delegated with powers and functions of the Electoral Commission can exercise or perform them, subject to the directions of the Electoral Commission.
56. Having found that the right to vote of each of the fifteen plaintiffs identified already has been infringed; is this a case where the Court should intervene in the electoral process so that the right to vote of these plaintiffs is enforced? This issue was considered in Thomas Negints v Electoral Commissioner (1992) N1072 where Woods, J at page 2 held:
"The Organic Law is amongst other matters to provide for the holding of National Elections. It sets out the method and procedures for the holding of elections. And it provides in s.206 for a method of challenging an election where the circumstances may warrant it and in s.212 the National Court may amongst other things declare an election void where it considers it just to do so...
The Organic Law itself makes no reference to the National Court stepping in and making orders for the carrying out of the election however it does provide the Electoral Commissioner with fairly wide powers and discretions to act in s.147 to adjourn the polling for any cause or in s.178 to extend the time for polling where he considers it necessary.
The Electoral Commissioner therefore has fairly wide powers for dealing with problems. This is an area of Executive Government and Administration. The National Court of course has wide powers to make such orders as are deemed necessary see s.155 (4) of the Constitution but that does not mean that it should exercise such powers too freely. The Electoral Commissioner is the expert in the running of elections, he is the person with the responsibility to ensure elections are run properly, a Court should be very careful before it steps in to overrule the discretions and powers of the Commissioner. He must realise that if something goes wrong during an election there may be grounds for the voiding of the election afterwards and that may prove costly but he is the man with the power to correct matters or face a costly by-election afterwards. ....
I am satisfied that the Constitutional right to vote and the right to be elected to public office is adequately protected by the discretions granted to the Electoral Commissioner in the Organic Law and by the procedure to challenge an election in s.206."
57. The view expressed in Thomas Negints has been endorsed by subsequent decisions of the Supreme Court: see for example SCR No 4 of 2002; Special Reference Pursuant to Section 19 Constitution, Reference by Francis Damem, Attorney-General (2002) SC689; Electoral Commission & 3 Ors v Pila Niningi (2003) SC710; Oscar Pomaleu & 2 Ors v William Skate Jnr and Anor (2006) SC838. That is settled law now. I will adopt and apply the law here.
58. The actions of the criminal elements coupled with the conduct of the defendants in not acceding to pleas to re-poll may also have deprived other electors on Electoral Rolls for Wards 25, 26, 27 and 28 in the Mul Baiyer Lumusa electorate of their right to vote. However, they do not have any application for enforcement of their right to vote before this Court. These plaintiffs do not represent those electors.
59. Moreover, I think this is not a case where the Court should commence proceedings on its own initiative by virtue of Section 57 of the Constitution and Rule 8 of the Human Rights Rules basically because I would be interfering with the wide powers and discretions of the Electoral Commission specifically vested in it by the Constitution and Organic Law to conduct elections to Parliament more particularly on the question of a re-poll.
60. The failure to conduct polling at Kulimbu 1 and 2 and Mandawasa 1 and 2 was not due to the dereliction of duty, gross or otherwise, on the part of polling officials. The efforts of the Third Defendant through electoral officers to provide an opportunity for electors on the Electoral Rolls of wards 25 (Kulimbu 1), 26 (Kulimbu 2), 27 (Mandawasa 1) and 28 ((Mandawasa 2) to exercise their right to vote was thwarted by the conduct of about eight uncivilised criminal elements.
61. It is common knowledge that scrutiny for all electorates in the Western Highlands Province has already commenced at the Kimininga Police Barracks here in Mt. Hagen and all writs issued for these general elections to Parliament in 2012 will need to be returned in accordance with constitutional requirements. Only the Electoral Commission has authority to decide whether or not there should be a re-poll. Factors such as; the fact that polling has officially ended; scrutiny has already started for all electorates in the Western Highlands Province; whether there is sufficient time to conduct a re-poll and have ballot-boxes brought in for scrutiny soon thereafter; and writs for the current general election to Parliament in this province will have to be returned through the Electoral Commission to the Head of State soon after the declarations of results of the scrutiny for each electorate here are made, may come into consideration when the Third Defendant through the Second Defendant decides how to exercise its powers and discretions in relation to the question of a re-poll.
62. There is no evidence before me to suggest when the writs for these general elections will be returned, however, according to Section 80 (1) of the Organic Law, the date fixed for the return of writs must not be more than twenty one days after the end of the polling period. One day polling in the province was conducted on 3 July 2012, so that means the writs for this province need to be returned by 24 July 2012 or thereabouts. I also note however that subsection (2) of Section 80 vests in the Electoral Commission discretion to extend the period where special circumstances require by notice in the National Gazette.
63. Whilst the Court is vested with an inherent power under Section 155 (4) of the Constitution to make such orders as are deemed necessary to do justice in the circumstances of a particular case, I do not propose to interfere with the wide powers and discretions specifically vested in the Electoral Commission by law to deal with election–related matters such as polling or re-polling or even to have an election declared a failure pursuant to Part XIA of the Organic Law (Sections 96A-97). I will not interfere with the electoral process. Hence, I will refuse to enforce the right of the fifteen affected plaintiffs.
64. For all these reasons, I will refuse the reliefs sought in the plaintiffs' motion, more particularly items 2 and 3.
Ruling accordingly.
______________________________________________________
Paul Othas Lawyers: Lawyers for the plaintiffs
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