Leadership Tribunal verdict in the matter of Hon. Bryan Kramer MP
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PAPUA NEW GUINEA
[In the Leadership Tribunal appointed under Section 27(2)(a) of
Law on the Duties and Responsibilities of Leadership]
In the matter of a Reference by the Public Prosecutor under s.
27(7) of the
Organic Law on Duties and Responsibilities of Leadership
In the matter of the HONOURABLE BRYAN KRAMER MP.
Member for Madang Open Electorate
Waigani: Justice Lawrence Kangwia ML (Chairman)
Principal Magistrate Josephine Nidue (Member)
Magistrate Edward Komia (Member)
2023: 28 February
P. Kaiuwin & H. Roalokono & D. Kuvi for the Referrer
M. Giruakonda & Sir Arnold Amet assisting the Leader.
Constitutional Law — Leadership code – Leadership Tribunal — Role of
Onus and Standard of Proof — Member of National Parliament — Twelve
allegations of misconduct in office – Scandalising the Judiciary —
police operational matters — Engaging associate companies to benefit
District Services Improvement programme (DSIP) funds –
(DSIP) funds to make payments to unauthorised purposes — Creating a
within Madang District Development Authority without approval from
Personnel Management — Abuse of power – whether evidence sufficient
Cases cited; Hon Patrick Pruaitch v Chronox Manek (2009) N3903; Sir
Somare v Chronox Manek (2011) 5C1118; John Mua Nilkare v Ombudsman
Commission (1995) N1344; Hon Solan Mirisim MP (2021) N9315; SCR No 2
1992 Re Leadership Code  PNGLR 336; Re James Eki Mopio 
416; Re: Michael Pondros, MP (1983) N425; Re Kedea Uru (1988-89)
No 3 of 1984; SC Reference No 1 of 1978 in Re Leo Morgan 
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Ex Parte Rowan CaHick and Joe Koroma (1985) PNGLR 67.
Constitution; s 27 (7) (e), 29 (1)
Organic Law on Duties and Responsibilities of Leadership; s13, 17
(d), 20 (4),
s27 (2) & (7) (e), s17 (d), s20 (4), 27 (1) & s28.
District Development Authority Act of 2014.
Public Finance Management Act; DSIP Guidelines, Finance instructions
National Procurement Act.
BY THE TRIBUNAL: This Tribunal was appointed pursuant to s27 (7) (e)
Organic Law on Duties and Responsibilities of Leadership (Organic
enquire into certain allegations of misconduct in office by the
Kramer MP, (the leader) within the meaning of s 27 of the
The Ombudsman Commission originally referred 13 allegations of
office by the leader to the Public Prosecutor pursuant to s29 (1) of
Constitution and s 17 (d), s 20 (4) and s 27 (1) of the Organic Law
On 30 September 2022 the Public Prosecutor pursuant to s 27 (2) of
Law formally referred the Honourable Brian Kramer to the Leadership
by presenting 13 allegations. By operation of s 28 of the Organic
Law the leader
was suspended from official duties.
On 14 October 2022 the Tribunal formally read the charges to the
denied all allegations levelled against him. On 24 October 2022 the
Prosecutor presented the statement of reasons accompanying the
through the Chief Ombudsman Commissioner.
In the process of the hearing allegation 10 was discontinued for
the trial proceeded with 12 allegations. During the trial thirteen
were called by the referrer while the leader called three (3)
Each witness was subjected to examination, cross examination, and
examination. At the conclusion of the trail proper the hearing was
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to 20 February 2023 for parties to prepare submissions on verdict.
On the date fixed for submissions, the leader proposed that the
consider a preliminary constitutional issue seeking to dismiss the
proceeding. It was intimated that the threshold issue related to the
the Ombudsman Commission to afford him the right to be heard when it
refused to provide him the relevant evidence sought to be relied on.
on the case of Hon Patrick Pruaitch v Chronox Manek (2009) N3903 and
Michael Somare v Chronox Manek (2011) SC1118 as conferring authority
the Tribunal to consider any question of interpretation and
application of a
Constitutional nature that may arise concerning the investigation by
In view of the necessity to accord the right to be heard at any
stage of the
proceeding the tribunal granted leave for the leader to incorporate
in its submissions on verdict to be determined separately. The
effect of the
grant of leave was that if the Preliminary issue was in favour of
the leader the
proceeding could stand dismissed. If the preliminary issue was
decision on verdict would be delivered.
This is the decision from that preliminary issue. The leader’s
that by the refusal to provide him the evidence sought to be relied
on by the
Ombudsman Commission he was denied a fair and reasonable opportunity
respond to the allegations as intended by s 20 (3) of the Organic
Law on Duties
and Responsibilities of Leadership. If he had been provided the
evidence constituted of 20 volumes containing 8,488 pages of the
breaches, he would have offered an explanation or clarification that
have dispelled the allegations leading to a no prima facie case.
Without exercising due diligence and giving him the opportunity to
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the Ombudsman Commission made a deliberate decision to refer him to
Public Prosecutor which was a breach of his Constitutional right,
Tribunal should dismiss all charges.
He relied on the cases of John Mua Nilkare v Ombudsman Commission
N1344 and the findings by the Tribunal in the Hon Solon Mirisim MP
N9315 as authority supporting his proposition.
The referrer while contending that the leader was accorded the right
heard by the Ombudsman Commission submitted that the issue raised
belated. The leader had the opportunity to raise it as a preliminary
the Tribunal hearing commenced and not after evidence had been
completed. On the case of Solan Mirisim cited by the leader it was
that the circumstances of that case were different to the present
and not relevant.
We agree with the law and case authority on the right to be heard. A
be heard generally remains with a person to the grave so to speak.
to be heard by a leader facing misconduct allegations must be
accorded a fair
hearing and given the opportunity to respond or challenge what is
However, we have reservations on the view that a leader should be
for an interview. An allegation by its very nature is an allegation
yet to be
proved and a leader should not be subjected to an interview akin to
a felon in
a criminal case at a police station. There is a basic presumption
are expected to know and do what is right and do it properly for
necessary attributes, they should not hold leadership positions in
In the present preliminary application by the leader, our view is
with the position of the referrer. The issue raised is far belated.
It is in essence
asking the tribunal to disband without considering the evidence
before it. There was nothing preventing the leader from raising the
issue as a
preliminary or competency issue when the Tribunal first commenced
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hearing. The only preliminary issue that parties were invited to
address at the
commencement of hearing was the composition of the Tribunal members.
Even then, because the leader’s application involved Constitutional
proper remedy in our view lay in a judicial review as was in the
case that the leader referred to.
From the evidence before us the leader was not completely deprived
right to be heard. The unchallenged evidence is that on 3rd
the Ombudsman Commission served the leader the right to be heard.
Annexed to the letter was the statement of reasons on the 13
allegations in a
291 paged document sought to be relied on. The leader on 4th
by letter sought an extension of 21 days to respond and further
copies of the evidence sought to be relied on. On 20 December 2021
Ombudsman Commission granted an additional 21 days and refused to
provide any evidentiary documents.
Because the leader was not provided the evidentiary documents, the
deemed it unfair and saw no utility in responding to the right to be
When no response was received after the extension period lapsed the
Ombudsman Commission on 14 February 2022 by letter notified the
that it would refer the leader to the Public Prosecutor for not
made a deliberate finding of prima facie guilty of misconduct in
office. On 15
March 2022 the Ombudsman Commission referred the leader to the
Prosecutor. The referral to the Public Prosecutor included the 20
evidence that was refused to be served on the leader.
This case was not a situation like the case of Solan Mirisim. In
that case the
right to be heard was given some years after the allegations arose
leaders was referred to the public prosecutor 6 years thereafter.
by the Tribunal was based on denial of a fair hearing.
In the present case the leader was not denied a fair hearing. He was
the opportunity to exercise his right to be heard by the Ombudsman
Commission soon after it completed its investigation. The refusal to
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the documentary evidence did not extinguish his right to be heard.
He was still
possessed of the right. The assertion that had he been given the
evidence he would have provided a proper and better explanation
would have found a basis for a no prima facie case is in our view
He did not do that when he was accorded the right to be heard in the
He pleaded not guilty to the allegations when put to him. When he
not guilty, he was deemed to have accepted what transpired thereby
in motion the hearing proper to proceed.
The trial proper proceeded therefrom without any challenge as to its
propriety, competency, or lack of jurisdiction. Even then the leader
possessed of the right to be heard if he is not satisfied by any
the Tribunal makes.
For those reasons we decline to grant the orders sought by the
We now deliver the unanimous decision of the Tribunal from the
We start with the notion reposited in SCR No 2 of 1992 Re Leadership
 PNGLR 336 that the thrust of the Leadership Code is to
people of this country from misconduct by its leaders. That private
not conflict with public responsibility as a leader. Leaders subject
Leadership Code are those classified under s 26 of the Constitution.
can be either earned or given. Either way the leader is accountable
misconduct while in office.
To safely hold a leader guilty of misconduct in office, factual
allegations must be
proved before a determination is made as to whether the proven facts
constituted a breach of the duties enumerated under s 27 of the
In a Tribunal there is no legal onus to prove but the basic
principle of law is that
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any person who alleges an illegal act, practice or conduct bears the
proving what he or she alleges, and Leadership Tribunals enjoy no
the grounded principle, the minimum being the practical onus to
principles of natural justice at every stage of the proceeding.
By the very nature of the alleged misconduct in office created by
Constitution and implemented through the Organic Law on the Duties
Responsibilities of Leadership, it will require a high standard of
Case law embrace the view that standard of proof in a leadership
be high and nearer to the criminal standard of proof beyond
This requirement is well founded in this jurisdiction as in the
case of Re James
Eki Mopio  PNGLR 416 where the Court illuminated the
“There is no absolute degree of standard of proof to be applied by
Tribunal. The Tribunal must be reasonably satisfied of the truth of
allegations, and it must.give full weight to the gravity of the
misconduct in office
by a person subject to the leadership code to the adverse
may follow and to the duty to act judicially and in compliance of
the principle of
natural justice. Such satisfaction in matters so grave can never be
achieved on a
mere balance of probabilities”. (See also Re: Michael Pondros, MP
Re Kedea Uru (1988-89) N425)
By the requirement for a high standard of proof the Tribunal is
restricted to the
allegations as pleaded in the referral by the Public Prosecutor.
allegation is withdrawn by the referrer the tribunal must make a
finding on each
In the present case there is no dispute that between 27 July 2017
and 27 July
2022 the Hon Bryan Kramer MP was, a leader by virtue of s 26 (1)
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(c) & (d) of the
Constitution in his capacity as member for Madang Open. By virtue
of that office,
he became the Chairman of the Madang District Development Authority
(Authority) pursuant to s 12 (1) (a) of the District Development
(the Act). He was returned to the same leadership post in the 2022
Elections. He is therefore subject to the responsibilities of
under s 27 of the Constitution.
From the 12 categories of allegations referred to the tribunal 07
of them were
alleged to have breached responsibilities of office under s 27 (5).
(b) of the
Constitution while 05 related to misappropriation of funds of Papua
under s 13 of the Organic Law. it was the duty of the Tribunal to
and determine, whether the 12 categories of allegations breached
imposed by s 27 (5) (b) of the Constitution relating to
responsibilities of office
and s 13 of the Organic Law which relates to misappropriation of
funds of Papua
New Guinea to constitute misconduct in office.
Since s 27 (5) (b) of the Constitution subsumes all the preceding
reproduce the entire provision along with s 13 of the Organic Law.
The provisions state as follows;
27. Responsibilities of office.
(1) A person to whom this Division applies has a duty to conduct
such a way, both in his public or official life and his private
life, and in his
associations with other persons, as not—
(a) to place himself in a position in which he has or could have a
interests or might be compromised when discharging his public or
(b) to demean his office or position; or
(c) to allow his public or official integrity, or his personal
integrity, to be called
into question; or
(d) to endanger or diminish respect for and confidence in the
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government in Papua New Guinea.
(2) In particular, a person to whom this Division applies shall not
use his office
for personal gain or enter into any transaction or engage in any
activity that might be expected to give rise to doubt in the public
mind as to
whether he is carrying out or has carried out the duty imposed by
(3) It is the further duty of a person to whom this Division applies
(a) to ensure, as far as is within his lawful power, that his spouse
and any other persons for whom he is responsible (whether morally,
legally or by
usage), including nominees, trustees, and agents, do not conduct
a way that might be expected to give rise to doubt in the public
mind as to his
complying with his duties under this section; and
(b) if necessary, to publicly disassociate himself from any activity
of any of his associates, or of a person referred to in paragraph
(a), that might
be expected to give rise to such a doubt.
(4) The Ombudsman Commission or other authority prescribed for the
purpose under Section 28 (further provisions) may, subject to this
Division and to
any Organic Law made for the purposes of this Division, give
generally or in a particular case, to ensure the attainment of the
objects of this
(5) A person to whom this Division applies who-
(a) is convicted of an offence in respect of his office or position
or in relation
to the performance of his functions or duties; or
(b) fails to comply with a direction under Subsection (4) or
otherwise fails to
carry out the obligations imposed by Subsections (1), (2) and (3),
is guilty of
misconduct in office.
13. Misappropriation of funds of Papua New Guinea
A person to whom this law applies who
(a) Intentionally applies any money forming part of any fund under
control of Papua New Guinea to any purpose to which it cannot be
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(b) Intentionally agrees to any such application of any such
is guilty of misconduct in office.
The combined effect of those provisions is to deter abuse of power
for personal benefit or gain as enunciated in SC Reference No 1 of
1978 in Re Leo
Morgan  PNGLR 460. The extent of responsibilities and the type
conduct expected of a leader by s 27 in his public and personal life
is high, wide,
and varied. There is no precise definition of conduct. We adopt and
opinion of the Tribunal in the Matter of Solan Mirisim MP (2021)
said, “In our opinion s. 27 is an all-encompassing law that covers
all forms of
leadership breaches constituting misconduct in office by leaders”.
We now deal with the categories of allegations this way. Allegations
1, 2, and 4
will be considered together as they overlap and relate to the 03
on the leader’s Facebook account. All the 3 allegations deem the
leader as guilty
of misconduct in office under s 27 (5) (b) of the Constitution.
Allegation 1. Scandalising the Judiciary by posting articles on his
account and insinuating a conflict of interest by the Hon. Sir Gibbs
Justice of Papua New Guinea.
Under this category the referrer alleged that the leader failed to
obligations imposed by s 27 (1) of the Constitution by publishing
insinuating a conflict of interest when he published these words; “A
point to note is that the Chief Justice was only recently appointed
by O’Neill late
In submissions the position of the referrer was that the leader
being a person of
intelligence while knowing that the Chief Justice was appointed by
Executive Council, published an inaccurate fact that the Chief
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recently appointed by O’Neill. That his actions amounted to
mocking the Chief Justice and disrespect for the judiciary which is
By writing and publishing those words it brought the Court or Judge
disrepute; lower the authority of the Court; lower the authority of
Justice, interfere with due course of justice; interfere with lawful
process of the
Court; and undermine public confidence in the administration of
By doing so he demeaned his office, allowed his official and
personal integrity to
be called into question and endanger or diminish respect for and
the integrity of government and therefore he was guilty of
misconduct in office
under s 27 (5) (b) of the Constitution.
The leader while acknowledging that the statement was inaccurate
that when properly understood it merely stated a constitutional fact
Chief Justice was recently appointed by Prime Minister O’Neill’s
and cannot be said to be scandalous in any way whatsoever.
That by merely publishing this constitutional fact he did not demean
or position nor allow his personal integrity, or his personal
integrity to be called
into question within the meaning of s 27 (1) (b) of the
publication was not scurrilous, abusive or cast any imputations
judiciary or unduly spoken against a member of the judiciary or the
The main contention was that the charge cannot be sustained because
scandalising is a form of Contempt of Court and a serious criminal
Common Law where the standard of proof was high and the requirement
prove the elements of the charge was not met rendering the
him as speculations and assumptions.
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Therefore, the charge should be dismissed. He referred to the SCR
No 3 of 1984;
Ex Parte Rowan Callick and Joe Koroma (1985) PNGLR 67 which cited
overseas cases as authority for his assertion that scandalising is
a form of
Allegation 2. Scandalising the Judiciary by posting articles on his
account accusing Hon Peter O’Neill and his lawyers of filing a fake
Arrest to deceive and mislead the Court in the matter OS (JR) 720 of
Under this category the allegation was that the leader as Minister
scandalised the Court by posting on his Face Book account the
“What was not anticipated was that O’Neill and his lawyers would
assistance from the Chief Justice and desperate enough to submit
documents to mislead the Court that the Warrant was defective as a
obtain a stay order”.
The submission by the referrer was that the publication was a
accusation against O’Neill and his lawyers and intended for the
public to draw
the conclusion that since O’Neill appointed the Chief Justice the
request to the
Chief Justice was for a return favour. That he had the intention to
Chief Justice and or the Judiciary when he published the following
words on his
“In response the Chief Justice hand-wrote on the same letter
directing the judge
to attend to the matter for a temporary stay until 21st October
please attend to this matter for a temporary stay until 21/10/19;
directions issued by the CJ Miviri J vacated his earlier directions
and agreed to
hear O’Neill’s lawyers application at 3pm that afternoon; After
application consistent with Os directions the judge granted an
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restraining police from arresting and executing the warrant of
0,Neill until Monday 21st October 2019; A relevant matter to not is
that the Chief
Justice was only recently appointed by O’Neill last years.”
That in the totality of the circumstances the articles the leader
Facebook had the effect of scandalising the judiciary as they were
bring the Court or Judge into disrepute and lower the authority of
Justice and the Court and undermine and endanger public confidence
judiciary. By doing so the leader demeaned his office and positions,
official integrity into question and endangered and diminished
respect for and
confidence in the integrity of government thereby being guilty of
office under s 27 (5) (b) of the Constitution.
The leader while adopting his contentions under allegation 1
intimated that the
publication complained of were directed at the unethical and
conduct of Mr O’Neill’s lawyers and not against the Chief Justice.
They did not
scandalise the Court or bring the Court into disrepute, lower the
authority of the
chief Justice or interfere with the due course of justice. In like
publication did not demean his office and position or allow his
personal integrity into question therefore he was not guilty of
office under s 27 (5) (b) of the Constitution.
Category 4. Publicizing the complaint lodged against him by Hon Sir
the Chief Justice of Papua New Guinea and posting it on the Facebook
Under this category the referrer alleged that the leader failed to
obligations imposed by s 27 (1) of the Constitution when he
published the letter
of complaint by the Chief Justice to the Police Commissioner which
calculated to bring the integrity of the Chief Justice into
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disrepute, interfere with
due course of justice, and undermine public confidence in the
justice thereby being guilty of misconduct in office under s 27 (5)
(b) of the
The leader’s contention was that he did not use his office or
position to obtain
from the Commissioner of Police the letter by the Chief Justice nor
The letter had been publicized by one Nathan Liwago on WhatsApp
was the leader’s assertion that even if he had published the letter,
it would not
amount to misconduct in office by any measure.
It was his further contention that the process from criminal
sentence were supposed to be transparent and not confidential.
document consisted of a criminal complaint against him personally
and as the
most affected person, he had to publish it to let his electors in
that a criminal complaint had been laid against him for transparency
Therefore, the allegation was baseless, and should be dismissed.
The approach we take is that the allegations will be considered in
The allegations shall be viewed objectively according to the
reactions of the reasonable person. It is irrelevant whether the
recognises scandalising the judiciary as a form of contempt as
intimated by the
leader. The Common Law recognition relates to publications
proceedings because any publication regarding an ongoing proceeding
prohibited. The case that was the subject of the publications in
was a dead and done case.
Our findings under categories 1, 2 and 4 are these. The evidence
under the three categories of allegations show elaborate articles
the leader on his Facebook account in three parts on separate dates
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2nd and 10 November 2019.
The articles had its genesis from a criminal complaint laid by the
Peter O’Neill on 7 October 2019 for abuse of office for directing
the payment of
more than K300, 000 from the National Gaming Control Board which
helped his political nemesis Nixon Duban win the Madang Open
under the auspices of upgrading Yagaum Lutheran Rural Hospital. Out
transaction the Court of Disputed Returns found Duban guilty of
undue influence and voided his election as member.
Following the leader’s complaint, a Warrant of Arrest was necessary
O’Neill for questioning by police. Police obtained from the Waigani
a Warrant of Arrest against O’Neill.
On 16 October 2019, before police could execute the Warrant of
through Nivage Lawyers sought an urgent application in the National
orders to stay the Warrant of Arrest from being executed. The reason
application by O’Neill was to seek Judicial Review of the decision
to issue the
Warrant of Arrest which was couched as constituting patent defects.
application ended up with Hon Justice Miviri twice.
On both occasions, Hon Justice Miviri fixed 21 October 2019 as the
hearing the application inter-parte. Not satisfied with Hon Justice
decision and fearing imminent arrest, Peter O’Neill’s lawyer wrote
Associate to the Chief Justice Togi Maniawa seeking an urgent
That letter was forwarded to the Chief Justice. Upon receipt of that
Hon Chief Justice by notation on the same letter wrote the following
“Miviri J. Please attend to this matter for a temporary stay until
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Following that notation Hon Justice Miviri heard the application and
orders restraining police from executing the Warrant of Arrest
determination of the substantive proceedings. Peter O’Neill was not
On the return date police withdrew the warrant of arrest and O’Neill
After those occurrences, the leader on 2r November 2019 commenced
on his Facebook account, articles containing events and comments
and surrounding the stay order. The articles posted in three parts
“O’Neill flees country as National Court dismisses his case
The articles alleged to be scandalous started like this.
“Following the directions issued by the Chief Justice, Judge Miviri
earlier directions and agreed to hear O’Neill’s lawyers’ application
at 3 pm that
afternoon. After hearing the application, consistent with CJ’s
directions the Judge
granted an interim stay, restraining police from arresting and
Warrant of Arrest against O’Neill until Monday 21st October 2019.
The words alleged to be scandalous are these;
“A relevant matter to note is that the Chief Justice was only
by O’Neill late last year”. And later;
“What was not anticipated was that O’Neill and his lawyers would
assistance from the Chief Justice and desperate enough to submit
documents to mislead the Court that the Warrant was defective as a
obtain a stay order”.
Being aggrieved by the articles the Chief Justice wrote a letter to
Commissioner of Police, David Manning to charge the leader under the
Summary Offences Act and possibly the Cybercrimes Act. He also wrote
Ombudsman Commission. The leader upon receipt of a copy of the
the entire letter on his Facebook account. Thereafter numerous
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responses from the public were published. The Ombudsman Commission
investigated and referred the leader to the Public Prosecutor under
categories of allegations.
We commence our finding with the view that in a democracy like ours,
of speech generally is a noble calling. The Constitution under s 46
that proposition as freedom of expression. However, such freedom
exercised with caution and restraint to avoid adverse consequences.
Our findings of the primary facts from the Facebook articles are
heading to the Facebook articles stated, “O’Neill flees country as
dismisses his case preventing arrest”. The leader’s assertion that
Court dismissed O’Neill’s case is far from the truth. There is no
evidence that the
National Court dismissed O’Neill’s case.
There is also no evidence that O’Neill was charged with any offence
dismissed. What is in evidence is that the Warrant of Arrest was set
court order. It is a misstatement and a distortion of facts by the
leader to assert
in the Facebook articles that O’Neill’s case was dismissed.
Secondly, from the information before us there is no evidence that
his lawyer solicited any assistance from the Chief Justice. This
enhanced in evidence during cross examination of George Lau the
for O’Neill, that communication with the Chief Justice was a “no go”
for a lawyer.
The only evidence on record is that the lawyer for O’Neill wrote to
to Chief Justice requesting an urgent stay. That mode of
communication is the
norm for Court record purposes as the National Court is a Court of
Thirdly, there is no evidence of a collusion by the Chief Justice
Shepard’s Law firm where the Chief Justice’s daughter worked. The
evidence is that Nivage Lawyers appeared in court after briefing out
Shepard’s Law Firm relating to the application for a stay order
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which is a normal
practice among lawyers.
Finally, there is no evidence of a defective or fake Warrant of
Arrest as alleged.
There is also no evidence that O’Neill and his lawyer used a fake
Arrest to obtain the stay order.
However, there is evidence of a Warrant of Arrest that was tampered
oral evidence by Senior Constable Kila Tali who applied for the
Warrant of Arrest
told the Tribunal that he tampered with the copy given to him by
ticking it which
was not ticked when he obtained it from the Court house.
It was his evidence that he ticked the Warrant of Arrest to identify
for the arrest which was lacking on the copy given to him. His
was that he withdrew the warrant after the file was removed from him
The evidence by Serah Amet the Clerk of the District Court who
Warrant of Arrest was that the copy she kept at the District Court
was the only
correct copy and without a tick. When questioned on the signatures
slightly different her evidence was that two copies of the warrant
produced, and the Magistrate signed the two copies separately. There
photocopy of a signed Warrant of Arrest.
Our finding from that evidence is that if there was in fact a
defective or fake
warrant, then the copy held by SC Tali which the leader was privy to
be the fake
one. SC Tali had tampered with it.
Our conclusion therefrom is that the leader had a vested interest in
complaint against Peter O’Neill. He was the complainant. The
over official corruption and other irregularities in sourcing and
public funding from the Gaming Control Board for Yagaum Hospital in
He became a victim of those irregularities and could not get elected
After his return as duly elected Member of Parliament for Madang
Open, he felt
duty bound to right the wrongdoers. No one else could do it for his,
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missed out on proper service delivery. He laid a formal complaint
The police reacted to his complaint and obtained a Warrant of Arrest
O’Neill who had directed the procurement of funds from the Gaming
Board for Yagaum Hospital. There was nothing improper on the part of
leader in the laying of the complaint.
What turned out to be improper was what happened after the execution
Warrant of Arrest was frustrated, and O’Neill not arrested. The
leader was not
pleased by what transpired. Without restraint and caution expected
of a leader
he let loose his self-control in a subtle way to portray his
publishing articles the subject of these allegations. In the process
further posted the letter of complaint the Chief Justice sent to the
The document that later became controversial was brought to the
the Chief Justice by his associate Togi Maniawa. It was a letter
hearing of an application by O’Neill’s lawyer for a temporary stay
of the Warrant
of Arrest to the date set by Justice Miviri. On that letter the Hon
wrote “Miviri J. Please attend to this matter for a temporary stay
From a reading of the notation by the Chief Justice it was in our
view not a
direction to the trial Judge as asserted in the article by the
leader. It was a
misstatement by the leader of the facts to say that the grant of
stay by Justice
Miviri was consistent with directions by the Chief Justice. The
Chief Justice did
not issue directions or use the word direct to Justice Miviri. The
use of the word
“direct” would connote a compulsion to act. On the converse the
“please attend to this matter” exemplifies a request more than a
can also be interpreted as requesting Justice Miviri to reconsider
position. It was open to Justice Miviri to reconsider or stick to
his earlier stance.
He chose to reconsider and hear the application. We cannot deem the
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by the Chief justice as a direction as suggested by the leader.
There was nothing unusual, sinister, or intrusive in the way the
made the request to Justice Miviri to attend to the matter for a
The date suggested by the Chief Justice was consistent with the date
The Chief Justice was entitled to do what he did as head of the
the decision of Justice Miviri was a decision from chambers and not
Order. That proposition was affirmed in evidence by the Chief
and the former Chief Justice Sir Arnold Amet that chamber directions
The difference between a decision from chambers and a Court Order
distinguished in evidence by the Hon Chief Justice and Sir Arnold
Amet that a
Court Order is subject to an appeal to the higher Court while a
chambers is more an administrative convenience. We add here that
a direction from chambers of a Judge would not be subject to an
person who was so aggrieved by any such direction, could seek
of that direction as an administrative decision. It is still open to
The evidence of the Chief Justice was that he could not direct a
judge to make
orders. It was up to the Trial Judge to independently determine
whether to grant
or refuse the application as it is done in the usual course of
determinations. Justice Miviri deposed to doing just that. He told
that he made his own independent decision.
We also find no evidence that O’Neill appointed the Chief Justice.
Justice gave evidence that he was appointed by the National
on 13 November 2018 from a shortlist of 5 names of other senior
appointment process was further affirmed by the former Chief Justice
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Amet that by law it is the National Executive Council that appoints
Justice. That evidence has not been discredited.
There may be a hint of a conflict of interest by the Chief justice
circumstances. The obvious one was that at the time the Chief
appointed, Hon Peter O’Neill was the Prime Minister and by the
office held, he
was the Chairman of the National Executive Council which was the
There is also the evidence that Peter O’Neill directed Tom Kulunga,
Commissioner of Police to approach Sir Gibbs Salika personally on an
former Chief Justice Sir Salamo injia.
However, the publication by the leader in the Facebook article that
Justice was recently appointed by O’Neill is an inaccurate
and far from the truth. It is highly irregular and improper for the
assume that a reader would interpret the words the way he meant it
interpreted. He was intelligent enough to distinguish facts from
The Chief Justice is the head of the third arm of government and the
appointment to such important position cannot be done by a single
the Prime minister. By operation of s 169 (2) of the Constitution,
Executive Council is entrusted with the authority to appoint the
Chief Justice by
advice to the Head of State. There is no other way. It seems the
unaware of this process by his publication. If he was aware, then he
interpret it his way. The publication of distorted and untruths
renders any hint
of a conflict of interest by the Chief Justice nugatory.
Given those facts it is in our view farfetched and beyond the bounds
possibility to insinuate a conflict of interest or corruption in the
circumstances where the Chief Justice requested Justice Miviri to
Page 22 of 61
to this matter” as a return favour to O’Neill for appointing the
On the allegation of deceiving and misleading the Court by O’Neill
lawyers, two copies of the warrants were published, and the leader
them on the Facebook.
We are of the view that even though the words under this category of
were directed at O’Neill and his lawyers, by publishing that a fake
Arrest was used to deceive and mislead the Court to obtain a Court
factually wrong and far from the truth.
The copies posted on the leaders Facebook account were both correct
None was fake. The Warrant of Arrest that could be described as fake
copy tampered with a tick, by the Police Informant Senior Constable
Secondly, there was no determination by the Court on the Warrant of
Whether the Warrant of Arrest was fake or had substance was not
Only a restraining order was given. To allege that the Court Order
for a stay was
obtained by using a fake document was also factually incorrect. The
that the warrant that the police wanted to execute was the tampered
correct copy was in the Court file which O’Neill’s lawyer relied on.
application to set aside the Warrant was proper because the two
copies did not
match, one with a tick and the other without a tick.
The substantive application by O’Neill for judicial review was never
by the Court. The judiciary was distanced from the allegation of the
when the Warrant of Arrest was withdrawn by SC Kila Tali being the
We find that the articles published in the Facebook pages were not
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to interfere with the due course of justice or lawful process of the
published articles related to a matter that was completed, dead and
articles did not relate to a matter that was ongoing from which
could be inferred or bring the Court or Judge into disrepute by such
On the allegation of publishing on Facebook, the letter of complaint
by the Chief
Justice, like the Leader, the Chief Justice was entitled to write to
Commissioner because it would have been inappropriate and demeaning
office to go stand behind the counter at a police station to lay his
that as it may, the leader was also entitled to react the way he did
as the most
affected person by the letter of complaint.
Our conclusions from the series of articles and the publication of
the letter by
the Chief Justice by the leader is that they constituted
unsubstantiated facts and
unverified conclusions. The leader published them to enhance his
interest more than for the public good as the leader asserts.
The publications were also intended for the victims of his
utterances to suffer any consequence that followed.
By those findings the issue now is whether the leader has committed
of a duty alleged under s 27 (5) (b) of the Constitution. This
provision is wide in
scope and encompasses all the subsections before it. It covers
subsection (4) and obligations under subsections (1), (2) & (3).
We deal with the issue this way. Where the specific breach alleged
is not proved
but the evidence discloses a breach of another duty imposed by s 27
Constitution the tribunal will be at liberty to exercise its
discretion to hold that
a duty not specifically charged was breached. The reason for that
is simple. The
provision alleged to have been breached under s 27 (5) (b) subsumes
preceding subsections. It was intended to cover a broad range of
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collectively and not individually.
To consider whether a breach under s 27 has been committed we shall
determine the respective subsections through an elimination process.
Subsection 4 relates to directions from the Ombudsman Commission and
not apply to these allegations. Subsections 2 relates to use of
office for personal
gain and does not apply to these allegations. Subsection 3 relates
to conduct of
spouses, children and associates and does not apply to these
Subsection 5 (a) relates to convictions and does not apply to these
After the eliminations the only provision remaining is subsection
This provision is subsumed under s 27 (5) (b) which the referrer
breached by the leader. If an allegation cannot be charged under
alone, it can be charged under s 27 (5) (b). They operate
Under s 27 (1) (a) the requirement is that a leader must not place
himself in a
conflict-of-interest situation. The utterances in the Facebook
account do not
constitute a conflict-of-interest by the leader and does not apply
circumstances relating to scandalising the judiciary.
Under s 27 (1) (b) a leader must conduct himself so as not to demean
Even though the materials on the Face book platform do not
official press release or a function related to his official duties
as Minister for
Police complaining about Court processes in the media was going too
standing practice was that the police and the Judiciary work at
arm’s length and
not attack each other at will. He as Minister for Police had to lead
in that respect
and protect that relationship. The leader is deemed to have demeaned
by publishing articles of person interest in conflict with his
position as Minister
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Under s 27 (1) (c) (d) the requirements are that a leader must not
official or personal integrity to be called into question. We adopt
what we have
just said above. The articles in the Facebook although personal,
when he was a leader, being the Minister for Police and Member of
representing the people of Madang Electorate. His personal interests
from a by-
product of a vendetta against O’Neill for supporting his political
Duban to win the election clouded decorum and sound judgement. After
winning the 2017 National Election the leader went in pursuit of
killing the goose
that lay the golden egg so to speak.
Even though the articles may not have been intended to scandalise
we cannot find the leaders comments as factual and fair in
the purported facts were in fact misstatements and inaccurate.
He failed to exercise restraint as a leader. He failed to warn
himself of the
adverse consequences of breeding negative perception on the
judiciary by an
exploitable and deceivable public. There were proper processes in
place that the
leader could have utilised instead of going too low to let a
gullible public pass
Even though the bulk of the population in this country have no
Facebook the numerous responses to the leader’s articles and the
of the letter by the Chief Justice from those persons who were
Facebook attest to the reactions and perceptions from the public.
The responses tendered into evidence were varied. We reproduce some
Some of the responses insinuated corruption at the highest level
wrongdoing was least expected e.g. (It shows all Court system is
PNG); (Its embarrassing for a man known as chief justice to be
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corruption). (Appoint some mature and man of vision to head the
in the country.
Other comments were susceptible to the veracity of the alleged
the Chief Justice. e.g. (Hope there is evidence on your post
inciting trouble or
causing ill feeling to people. Otherwise, the 0 should be thankful
that you have
help expose a weakness in the judicial process and he should focus
and making sure that does not happen again); (Look at all the
mistakes on the
complaint against Police Minister Bryan Kramer… Do we still think
originally came from the Chief Justice of Papua New Guinea?); (This
is fake letter
by someone who have been bribed by someone who is heavily involved
There were also comments which portrayed the leader as a demigod
corruption. e.g (BK stood the test of times against Goliath (in
power) and still
persevere. Nothing is new. Only a new Goliath).
Thumbs up Bryan Kramer for your strong standing in fighting
corruption in PNG.
You are the true patriotic leader of PNG to ‘Take back PNG” from
My champion my hero God be with you).
Other commentators splashed accusations on the Chief justice. E.G (0
really stay out of issues like this n let judges do their work bkos
he will only loose
his integrity); 0 and PO can manipulate the system with money bags
The pay you receive does not satisfy you and your family); “if the
daughter was working with Greg Shepard’s law firm and if so should
involved in cases where the law firm is engaged. Conflict of
interest?” Cl tryina
save his own arse for lack of a better word); (In the history of
Papua new Guinea
this 0 is impatient and it seems like he directly involved with Onil
that why he
trinna coverup on this matter).
Page 27 of 61
The responses to the leader’s articles in total when viewed
objectively are at
best disgraceful, shocking, insensitive and even ridiculous.
These types of utterances could not have been ignited had the leader
of the articles exercised restraint and refrained from publishing
the leader let loose his self- control in a subtle way and allowed
interest to take precedence. Apart from personal satisfaction, what
outcome was there to be gained by anyone else from the publication
unreserved and factually untrue utterances remains a mystery.
The result of his conduct was that public confidence in the
judiciary overall was
denigrated. It gave birth to negative perception and disrespect for
leading to scandalising the judiciary, a government institution
bestowed with a
high degree of trust.
By his conduct in publishing factually untrue statements it allowed
his public and
personal integrity into question as to whether he was a leader of
demeaning his office as Minister for Police and position as a
We find that the leader is caught by s 27 (1) (c) of the Organic Law
on Duties and
Responsibilities of Leadership. Even though the leader was not
under subsection (1) (c), subsection (5) (b) under which the leader
is wide, and it covers all the responsibilities imposed on a leader
subsection (1) (c).
The remaining provision is section 27 (1) (d). The requirement under
is that a leader must conduct himself so as not to endanger or
for and confidence in the integrity of government in Papua New
“Government” is wide in scope and covers all government entities and
instrumentalities which includes the judiciary. Even though the
articles were not
recognised official media releases, they related to official
the judiciary was involved in. We adopt what we said under
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subsection 1 (c) in
Insinuation of a conflict of interest by the ChiefJustice in the
performance of his
official functions is not supported by evidence. There is no
evidence that O’Neill
or his lawyer solicited assistance from the Chief justice apart
from writing a
letter requesting a hearing. O’Neill’s lawyer served the interest
of his client as is
the normal duty of lawyers in this country and other countries that
the rule of law.
From the evidence before us two extremes of leadership are
being a leader challenged the Warrant of Arrest as defective
through the normal
judicial process which is available to one and all. It is ironic
that the Leader also
challenged, a Warrant of Arrest as fake on Facebook which is also
There was nothing untoward in the approach taken by O’Neill’s lawyer
his client’s interest in Court. On the converse, the articles on
denigrated the high respect and confidence the public has of the
created doubts as to whether the last bastion of hope is wrought
which the judiciary is supposed to protect and defend.
The varying responses to the articles on Facebook attest to this.
articles also created doubts in the minds of the learned members of
community on the independence of the judiciary a government body
Chief Justice is alleged to have instructed another judge to issue
foundation of the judiciary is the independence of the judge in
By insinuating that the Chief Justice directed another judge (which
untrue) to make a certain decision impinges substantially on the
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of the judiciary thereby demeaning the integrity of the Chief
his authority, endanger public confidence in the administration of
scandalising the judiciary overall amounting to misconduct in office
under s 27
(5) (b) of the Constitution.
The allegations relating to scandalising the judiciary through
articles on the
leaders Facebook account have been proved to the required standard.
We find the leader guilty of misconduct in office pursuant to s 27
(5) (b) of the
Constitution for allegations 1 and 2.
On the allegation under category 4 relating to the letter of
by the Chief Justice, there was an element of undermining public
the administration of justice in the context that, the Chief justice
who was least
expected to be in trouble with the law had joined the que and become
Despite that we do not find any dishonesty or conflict of interest
on the part of
the leader in obtaining and publishing the letter on Facebook. The
the person most affected by the letter, and he was entitled to
the letter by the Chief Justice if properly attended to by police as
would have been in the public domain anyway.
We find the leader not guilty under category 4 of the allegations.
Allegation 3. Involvement and interference in police operational
resulting in the termination of Mr Paul Nii Director Legal Services.
Under this category the referrer alleged that the leader interfered
operational matters as then Minister for Police in the termination
of one Paul
Nil who was then the Director of Police Legal Services; that the
made after Mr Nii provided legal advice against the arrest of Peter
did not go down well with the leader’s interests because the arrest
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O’Neil arose out of a complaint by the leader.
The leader denied any involvement or interference in the termination
of Mr. Nii.
His contention was that the termination was for abuse of a hire car
and he was
not guilty of misconduct in office under s 27 (5) (b) of the
The Law under s 197(2) of the Constitution is that a member of the
is not subject to direction or control by anyone outside the police
includes the Minister responsible for Police.
The evidence under this allegation came from the victim of the
Magistrate Paul Nii who was at the relevant time Director Legal
services in the
Royal Papua New Guinea Constabulary. His evidence briefly was of
being in the
Police Commissioner’s office when the leader had a discussion with
Acting Commissioner of Police over a complaint by the leader against
O’Neill. From that discussion he was directed to do a file search on
by O’Neill to set aside a Warrant of Arrest.
While returning from the search the Acting Commissioner of Police
to go to Boroko Police Station to give advice on a Court Order
obtained to set aside a Warrant of Arrest because the Police at
divided on the Court Order. He gave advice against the arrest of
the Police Commissioner’s insistence to give legal clearance for
police to arrest
O’Neill. A second opinion on the Court Order gave the same advice
On 27 December 2019 he was suspended by a show cause notice for
office and breach of contract relating to the use of two motor
vehicles at Police
Department expense and eventually terminated.
Mr Nii in evidence denied the suspension as related to the hire car.
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was that he was allowed to use the vehicle by the Managing Director
Tengi while his suspension was upon pressure by the leader for
advice against the arrest of O’Neill. He relied on a letter by Mr
Nelson Yarka the
accountant for Lama Rent A Car as supporting his assertion on the
According to the letter from Mr. Daniel Yarka the, the vehicle in
hired on a retainer basis by the Police Department commencing 22
for 38 months to be invoiced on 6 monthly bases. When Mr Nii went to
the vehicle in April 2019, he was allowed to keep the vehicle by the
Director for reasons he did not know.
The letter was confusing as it portrayed a scenario where Mr. Nii
use of the vehicle as allowed by the Managing Director and Police
could still pay the rates for hire.
A simple calculation on the retainer shows that 18 months retainer
have lapsed on 22 June 2021. Mr Nii had custody of the hired vehicle
while it was still under the retainer by the Police Department. Our
that the suspension was for the unauthorised use of the hired
vehicle and none
We now revert to the substantive allegation that the leader
interfered in police
operational matters to have Mr Nii terminated.
The oral evidence of Mr Nil was that the Commissioner of Police
seemed to be
under pressure when he directed him so many times to give clearance
arrest of O’Neill. He was of the firm view that the leader pressured
Commissioner to give legal clearance for the arrest of O’Neill after
meeting in the Police Commissioner’s office.
When asked by counsel to verify “so many times” he was unable to
specific number. We consider this piece of evidence by Mr Nii as
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exaggerated and unsubstantiated.
The other evidence on this allegation was from the Facebook
articles, where the
leader referred to interference by a certain police officer who
opposed the arrest of O’Neill insisting that the Court Order forbade
arresting him. The alleged police officer was not named in the
We find as a fact that political interference in operational matters
of the Police
Force had occurred. Two instances signify our findings.
In the first instance there is evidence that former Commissioner of
Kulunga and the then Commander Special Operations, David Manning
the private residence of the former Deputy Chief Justice Sir Gibbs
Salika and had
discussions on a purported Arrest of the former Chief Justice Sir
Salamo I njia at
the behest of the former Prime Minister Peter O’Neill.
In the second instance the evidence before us is that the leader, as
for Police held discussions with the Commissioner of Police on the
former Prime Minister O’Neill from his personal complaint.
These are testaments of direct political interference in police
matters by leaders. Arrest of persons is an operational matter for
the police to
the exclusion of all of us. It is a breach of and a blatant
disregard of the
constitutional directive under s 197 (2) which restrains all and
interfering with operational matters of the Police Force.
Even though there was an element of interference and a conflict of
the leader in police operational matters concerning his personal
cannot safely connect those observations to interference by the
leader in the
suspension and termination of Mr. Nii. We find the leader not guilty
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The balance of the allegations relates to the District Development
(Authority) and its enabling Act. We propose to make general
relevant provisions of the Act before proceeding with the
We start with the standing notion that laws are there to be obeyed
by one and
all. Where there is a breach or a disobedience to any law, sanctions
follow. District Development Authority (amendment) Act of 2014 (the
Act) is one
such law and enjoys no exception.
The Authority is by statute pursuant to s 4 (1) (a) of the Act a
corporate body. It
does not require certification by the Investment Promotion Authority
recognised as a company. It replaced the functions of the former
Planning & Budget Priorities Committee (JDPBPC) pursuant to s 33A of
Organic Law on Provincial and Local Level Government Act and comes
umbrella of the Department of Provincial and Local Level
It has a board constituted by the Open Member as charman and all the
presidents of the Local Level Governments in the District. The
appoints three persons representing the community.
By operation of s22 the District Administrator (DA) who is a public
subject to the Department of Personnel Management, becomes the Chief
Executive Officer (CEO) of the Authority.
He/she is the only person possessed of an overlapping responsibility
as DA of
the District and the CEO of the Authority. The incumbent DA requires
appointment as CEO because he is already recognised by s 22 as the
CEO to the
Our reading of the Act is that the setting up of the Authority was a
change in the
regime of centralized funding control to be closer to the district.
It was intended
to facilitate an effective and coordinated approach to development
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delivery in each District and nothing else.
Specific functions provided under s 5 (b) were to develop, build,
and maintain roads and other infrastructure only. The Authority also
an underlying power to do all that are necessary or convenient to be
done in the
implementation of the functions. Other functions specified under s 5
compliment the development and service delivery requirements.
All functions of service delivery are as prescribed by the Act or by
accompanying the Act or by determinations from the portfolio
pursuant to s 6, or directions by the Minister pursuant to s 20 of
the Act. These
requirements are mandatory. At the time of the allegations there was
regulation or any Ministerial determination or direction in force.
The Act stood
One of the functions of service delivery is to approve disbursement
appropriated funding under the District Support Grants (DSG) and
Services Improvement Programme (DSIP) funds. Apart from these
funds, the Authority can receive funding from other sources like
donations if any. All these funds are paid into the district
expenditures recorded accordingly in the Provincial Government
System (PGAS) as they are all deemed public funds.
All financial matters for the Authority are subject to part VIII of
Finance Management Act 1995 and according to financial instructions
guidelines issued from time to time.
The established practice in financial matters is that the District
Finance Office or
District Treasury these days raises the requisition and General
invoices submitted to it after the initial approval is given by the
the Chairman. The DA as section 32 officer authorises payment and
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expenditures are recorded accordingly in the PGAS.
In the present case soon after the Leader was elected as MP for
Madang in the
2017 National Elections, to improve service delivery for the
orchestrated the creation of Madang Ward Project office and
established a new
structure to administer and implement projects and other services
office rented at Divine Word University. A secretariat was
established, and staff
were employed to implement the functions of the Ward Project
The leader further orchestrated the incorporation of Madang Ward
Limited as a business arm to implement ward projects and other
initiated by the Ward Project office and approved by the board. The
this setup was that some of the functions of the DA and staff in the
structure were subsumed into the new structure.
In like manner the leader also caused to be incorporated another
named as Madang Works & Equipment Ltd to implement road projects
were completely in dilapidated states. Large sums of DSIP funds were
transferred to this company following a Court Order. The two
owned by the Madang DDA as shareholder with the same single
Therefrom, the leader among others proposed, office rental and
consultants which the board eventually endorsed. It is from this new
and engagement of consultants and related issues that led to the
by the Ombudsman Commission leading to the categories of allegations
the leader the subject of this proceeding.
We now deal with Allegations 5 & 6 together as they relate to the
of Tolo Enterprises.
Allegation 5: Allowing an associate company, namely Tolo Enterprises
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benefit through consultancy services to the Madang District
Allegation 6: Misappropriation of K455,751.20 to the use of Tolo
a company owned by an associate.
The allegations under these categories are that between 1st December
31st June 2020 the Leader failed to carry out the obligations
imposed by Section
27(1)(b)(c) of the Constitution when he allowed an associate
Tolo Enterprises Ltd, to financially benefit through consultancy
services to the
Madang District Development Authority thereby being guilty of
office under Section 27(5)(b) of the Constitution.
It is further alleged that the leader dishonestly applied the sum of
to the use of Tolo Enterprises Ltd who was an associate company
guilty of misconduct in office under Section 13 (a) of the Organic
Law on the
Duties and Responsibilities of Leadership.
The position of the referrer is that Tolo Enterprises was not
from the beginning and as such the benefits that were received by
The leader contended that that the charge was defective for failing
sufficient and relevant material facts. It was also the contention
Enterprise was not an associate company or owned by an associate or
was he a
shareholder or director to fall under the definition of associate
under s 1 of the
Organic Law. It was the assertion that Tolo’s engagement for
services was approved by the board along with 04 others by
of 11 January 2018 and that the Engagement of consultants is
s 7 of the DDA Act. The amount paid to the company were for services
under the agreement and adequately acquitted and therefore there was
He then submitted that knowing a person or being acquainted with
them is not
evidence that they are associates within the definition under
Section 1 of the
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Because the referrer failed to plead properly the allegation of
and the element of associate, the allegations should be dismissed.
The facts under these allegations are that the leader after a prior
Mrs Hitolo Carmichael Amet proposed to the Board the engagement of
Enterprise as technical adviser/consultant. In the minutes of board
1/2018, the leader was the sponsor of the agenda for the engagement
company and 4 others for consultancy services to the Authority.
introducing the agenda, the leader recused from the meeting since he
personally knew Mrs. Hitolo Carmichael Amet. By doing so he complied
requirements under s 15 of the Organic Law to disclose his interest
to avoid a
The board approved the engagements for an initial 6 months and paid
from DSIP funds. Thereafter Toles consultancy engagement was
eventually paid from DSIP funds for services rendered totalling more
K400,000. There is no evidence of what happened to the other
their terms expired.
To find the leader guilty of misconduct in office under these two
must be proof of the allegation that Tolo Enterprise Ltd was an
company in the terms of the definition of “associate” under s 1 of
The definition under the Organic Law defines “associate” in the
“In relation to a person to whom this Law applies, includes a member
family or a relative, or a person (including an unincorporated
organization) associated with him or with a member of his family or
By virtue of the definition under the Organic Law we deem the leader
associate to the company. A company is a person under a corporate
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is covered by the definition of “person” under s 1 of the Organic
a company cannot operate without a person or persons behind the
The undisputed facts are that Tolo Enterprises is a company. It is
owned by a
person. That person is Mrs Hitolo Carmichael Amet. The leader met
her prior to
the formal engagement as consultant and discussed consultancy
Carmichael is the wife of Sir Arnold Amet. Sir Arnold had a strong
with the leader. They were both from Madang Province. The leader
Sir Arnold as community representative to the Authority Board. The
Sir Arnold had strong political connections. To round it all off Sir
the leader before this Tribunal.
These events cannot be coincidences. Despite which event occurred
first in time
all events collectively display a strong relationship between the
Leader and Sir
Arnold and his wife Hitolo Carmichael. Sir Arnold’s wife being the
and director of Tolo Enterprise is therefore connected by that
relationship to the
Under those circumstances the leader is not saved by the corporate
veil of Tolo
Enterprise from being caught by the definition of the word “Person
“under s 1
of the Organic Law as associate to the cornpany.
Further to that, the leader is not saved by his recusal from the
that endorsed Hitolo Carmichael as consultant. It was in our view
smokescreen to comply with statutory requirement under s15 of the
disclose his interest.
The declaration of interest in that meeting further affirms the
relationship that existed with Tolo and its owner. By the strong
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relationship, the leader was instrumental in a deliberate course of
facilitate benefits to Tolo; first on a temporary engagement and
later, for long
term engagement; such engagement in a conflict-of-interest
situation. The only
wonder is how come the other 4 consultants were never given the same
Our conclusion is that when the leader allowed Tolo Enterprise to
consultancy services in a dishonest and conflict of interest
situation he was guilty
of misconduct in office under s 27 (5) (b) of the Constitution.
It therefore follows that the leader dishonestly applied more than
K400, 000 to
the benefit of Tolo Enterprise being an associate company thereby
of misconduct in office under s 13 (a) of the Organic law on Duties
Responsibilities of leadership.
We find the leader guilty under allegations 5 & 6.
ALLEGATION 7. — Use of Madang District Services Improvement
Funds in Paying Electoral Office Rentals Company Contrary to SRC
Determination 2015 and DSIP Funds Guidelines
ALLEGATION 8. — Misappropriation of K229,500.00 of the District
Improvement Program & District Support Grants on rental payment of
At the outset the allegations under these two categories are inter-
find that both allegations relate to rental payment for the same
location with different amounts and for different purposes. The
purposes for the
payment on record are that some were for Electoral Office rental.
payment records were for Ward Project office rental. It is difficult
differentiate who is paying what from those records. We will deal
The position of the referrer under these categories is that the
office at Paramed
is the leader’s electoral office. It was submitted that the leader
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incorporation of the company for electoral duties under the auspices
authority to avoid using electoral allowances for office rent and
employ electoral staff and serve electoral agenda. His electoral
officers use that
office while the DA and his staff use the district office. Since the
Paramed was electoral office, the leader was wrong to allow payment
from DSIP funds when he should pay it from his electoral allowance.
While maintaining that the project office is the leader’s electoral
referrer further submitted the summary of the payments made to the
employees occupying the ward company’s office, which included
By intentionally applying DSIP funds to pay rent for his electoral
receiving electoral allowances for rent he was guilty of misconduct
under s 13 of the organic law.
The leader contended that the charges were defective for failing to
clarity sufficient relevant material facts. The alleged breach of
were not pleaded as there was no law known as DSIP guidelines as for
implementation of services improvement funds, the Finance Secretary
financial directions from time to time. The SRC determination of
2015 relied on
by the referrer was superseded by SRC determination of 2022 and the
cannot be prosecuted under a law that did not exist.
It was submitted that the Authority used its powers given under the
establish the office and operated therefrom for service delivery
ward visits and project inspections.
The Administration operated from the district office because they
job descriptions. Without refuting the summary of payment referred
leader maintains that the employees of the ward project company, are
electoral staff or attached to the member.
The other contention was that the Authority by resolution
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Madang Ward Project Limited as permitted by s 4, 7 & 11 of the Act
to carry out
service delivery in the district and the company also occupied the
office at Divine
Word. Because the company belongs to the Authority the rentals paid
funds were not illegal.
The further contention by the leader was that the use and
application of DSIP
funds was a collective decision of the board and not him to be
dishonest or unethical to dictate the boards resolutions; that the
funds by the Authority must be seen in the context of Parliament’s
Since there is no evidence that he intentionally applied public
funds or breached
SRC determinations the allegations should be dismissed.
The combined effect of these two allegations is that the referrer is
tribunal to make a determination on what appears to be against what
apparent. What appears to be is that an electoral office was
established by a
board resolution. What is apparent is that the board resolved to
establish a ward
project office and it is operating. The assertion is that the
project office is in fact
an electoral of the leader and therefore any rental payments for the
from DSIP funds were unlawful and amounted to double dipping.
The issue is whose interest is the office intended to serve, the
or electoral office interests.
Our understanding of the setup is that the Madang District
Authority is run by a board. Its administrative arm led by the
Administrator under an established structure.
The DA is also the Chief Executive Officer of the Authority. He is
the only person
in the district with an overlapping responsibility.
It is undisputed that the administrative arm operates from the
district office with
other employees. Under normal circumstances electoral staff would
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employed with staff in the administration.
At the time of the allegations none of the employees under the
structure was employed at the Divine Word office. Likewise, no
was working at the district office. A clear demarcation is apparent.
there is a reasonable presumption that the Divine word office is
occupied by the
leader’s staff while the district office is occupied by
The evidence of the District Administrator was that the district
office was run
down and declared unhealthy by the health authorities. The money
DDA on rent would have fully refurbished the district office.
The referrer argues that while the leader was receiving electoral
was improper for him to allow rental payments to be made for the
rental of the
electoral office using the DSIP funds.
The leader stood firm on his assertion that the office was not his
and those using it were not his electoral officers. The referrer
summary of payments made to the employees which included electoral
which the leader acknowledged.
The District Administrator’s evidence is that the administrative
building was in a
rundown state and that it had been previously condemned by Madang
Authority while the Paramed office had a conference room and office
which was used for Authority and other administrative meetings.
The leader acknowledges that the district office was condemned and
the use of
the rented office at Paramed but makes no mention of his position on
From those evidence our view is consistent with the evidence of the
Administrator that, there was no need to rent outside. The exact
money expended towards rental should have been used to maintain and
existing building. However, we do not wish to delve into the
judgement of the
leader and the board to choose rental instead of maintaining the
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building because the Act gave them the power to make such
However, given the totality of the evidence presented there is a
that the leader had a vested interest to rent another office space.
the incorporation of a company to implement projects. A company was
subject to financial guidelines. He could be relieved of rental and
expenses through the corporate veil.
The utterances that the district office was condemned by health
attracts condemnation from the tribunal. How was it allowed to
the first place? What happened to all the money that was budgeted
district? Why did the leader and the board ignore its condition and
servants to cling to it and scurry for cover in a rented property?
It was a far cry
and beyond the bounds of common sense and logic to rent a property
expense when the district office was begging maintenance.
Of the allegations, there is no evidence that there is an electoral
office. There is
evidence though of a Ward project office. It was set up by board
people employed by the company are using the rented property. People
employed and placed on the structure payroll. It included electoral
Electoral staff or electoral office cannot be given any other
meaning or definition
than what the SRC determination recognises them to be.
They are attached to the leader’s electoral duty functions as
political staff more
than district administration functions. It is well known that
political staff cannot
be housed together with district administration employees.
In the present case the functions were lumped together to be under
umbrella of the Ward Project Company. Electoral staff were employed
project officers to implement projects. By lumping them the
employees or those
on temporary engagement were deemed company employees.
By deeming them company employees the leader was not required to
electoral staff wages from his electoral allowance as intended by
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determination or pay rent for the office occupied by the company.
corporate veil of the company protected the leader from this
Even though the Ward Development Company was intended for service
delivery, there were electoral staff using the property and were on
structure payroll. It is safe to conclude that they were the
leader’s electoral staff.
If the office was rented for the authority, electoral staff would
not have occupied
it or operated from it in the first place. Because they were the
staff, the leader allowed them to operate from the rented office
auspices of the company.
Our view is that if the leader was serious about having a good
facility in the district, he would have done repairs to the
building and work from there instead of spending money on rent.
Instead, he devised a scheme to incorporate a company as a front to
financial guidelines, pay rent for electoral office, and wages for
because a company was not subject to financial guidelines. The
result of it was
that DSIP funds were expended for purposes for which it could not
We therefore find that the leader is guilty of misconduct in office
under s 13 of
the Organic Law.
Creating a structure within the Madang DDA without obtaining
the Department of Personnel Management.
Under this category the referrer alleged that the leader created a
structure within the Authority while there was an existing structure
district without the approval of the Department of Personnel
pursuant to s 23 of the Act.
It was the further allegation that the new structure was used to
expend assets belonging to Madang District and made the Madang
Public servants useless. Therefore, the leader was guilty of
misconduct in office
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under s 27 (5) (b) of the Constitution.
The leader contended that the charge cannot be sustained as the only
the Head of the Department can give was a proposed staffing
to 23 (2) (a) of the Act. In the present case neither the leader nor
created a staff structure within the Authority for approval to be
It was also intimated that the Secretary for Personnel Management in
opined that s23 (2) (a) of the Act was intended for public service
it was not necessary to obtain approval from the department to
consultants or persons like project staff.
To make findings under these categories the Tribunal relies on the
and responses made to the Ombudsman Commission by Mr. Albert Ului as
of the authority, Ms Helen Kanimba as Provincial Finance Manageress,
Joanne Yeni as acting District Finance Manageress, Mr. Reuben Lulug
Project Manager and Pastor John Orape as Church Representative in
Authority which were tendered into evidence through the Chief
The facts under this category are that the Board approved a proposal
leader to create a Ward Project Office within the Authority. Under
Project Office a staff structure was created. Thereafter the
Authority at the
behest of the leader incorporated Madang Ward Project Limited to
projects in the district. By the creation of the Ward Project Office
Madang District had two administering structures.
First was the existing District Administration structure which
operated from the
district office and was headed by Albert Ului. The new structure
under the Ward
Project Office and later the Ward Project Limited operated from a
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at Divine Word University Campus. The project office was headed by
The existing District Administration structure implemented sector
The new structure looked after a Secretariat to the DDA board,
and Ward Projects as branches. They were implemented by staff
under the new structure.
According to the evidence of Helen Kaninba and Joanne Yeni the
records for disbursement of DSIP funds from 2017 to 2020 were kept
District Finance office. They were surrendered to the Ombudsman
as directed. The records from 2021 onwards were kept by the
secretariat at the
It is undisputed that there was an existing structure in the
district. It was led by
the District Administrator. The evidence from the then Acting
Administrator for Madang and the Secretary for Department of
Management Taies Sansan affirmed that there was already a structure
for each District and the positions were occupied by public
servants. It was
headed by the District Administrator and had others working under
The Secretary for Personnel Management in cross-examination stated
was no regulation in place to implement the Act and guide the
evidence was supported by the current Attorney General and former
for Provincial and Local Level Government Affairs Mr. Pilla Niningi
that there was
no regulation guiding how structures were to be established as he
structure in his own District. His opinion was that Districts have
set up structures
to suit their own convenience.
For purposes of addressing our findings under these categories of
revert to the relevant provisions of the Act for answers.
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The powers of the Authority are prescribed by s 7 as follows;
7. Powers of Authorities.
(1) An Authority has power to do all things that are necessary or
to be done for, or in connection with, the performance of its
(2) Without limiting Subsection (1), an Authority may —
(a) enter into contracts; and
(b) charge fees for work done, and services provided, by the
(c) purchase and take on hire, and dispose of, plant, machinery,
and other goods; and
(d) engage consultants and other persons to perform works or
the Authority; and
(e) form or participate in the formation of companies; and
(f) enter into partnerships and participate in joint ventures; and
(g) do anything incidental to any of its powers.
Our views of s 7 are these. Under subs-section 1 the Authority has
to do all things necessary or convenient in the performance of its
Under sub-section (2) specific functions are prescribed for the
A specific function permitted under s 7 (2) (d) is the power to
persons to perform works or services for the Authority. Other
persons in our
view would refer to persons employed on a casual or temporary basis
the existing public service structure in the district. Payments to
would be made by the Authority according to budget and or board
It is also a mandatory requirement under s 23 of the Act that the
be serviced by such staff as are necessary in the following terms;
23. Secretariat and other staff of Authorities.
(1) An Authority shall be serviced by such staff as are necessary,
staff for a secretariat to provide administrative and secretarial
support to the
Authority, and staff to provide technical services to the Authority.
(2) The head of the department responsible for personnel management
matters shall —
(a) approve a proposed staffing structure for an Authority; and
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(b) determine the terms and conditions of the staff of an Authority
accordance with the Public Services (Management) Act 2014 and the
Orders under that Act.
In respect of subsection 2 (a) we do not accept the Leader’s
proposition that to
obtain approval of the head of Department responsible, one must
staffing structure; that since he did not propose a staffing
structure no authority
could be obtained from the head of the Department and therefore, no
of s 2 (a) of the Act was committed.
The leader’s interpretation of s 2 (a) is in our view untenable. The
Department cannot approve a structure on its own volition without a
for a staff structure. A proposed staff structure would refer a
revised version of
the existing structure or a new one.
Where a proposed staff structure was not presented to the head of
Department responsible then in would be deemed that the existing
was adequate and there was no need for a new or a restructured one.
mandatory powers given to the head of the Department responsible
Section 23 (1) is that the exercise of such power is by necessity
only. One being
producing a proposed staffing structure.
A proposed staff structure would be implemented only after the
approval was given by the head of the Department responsible. The
would entail embodiment of terms and conditions in accordance with
Services (Management Act 2014) and General Orders to enable payments
entitlements under the normal public service pay structure. The
therefrom is that there can never be a standalone structure from the
one without the mandatory approval.
The same cannot be said of a secretariat. A secretariat by its very
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not compose of a single person. It would be more than one individual
give administrative and secretarial ortechnical support to the
authority. It would
be more a casual or temporary engagement to complement the existing
The preferred option was to engage existing public servants for
duties but where expertise was lacking, people from outside could be
using the power given by s 7 (2)(d). (Engage secretariat and other
In the present case there was no approval for a structure given by
the head of
the department responsible. The obvious reason was that there was no
proposed staffing structure presented to the head of Department by
or the Authority. The other reason discerned from the evidence of
Taies Sansa was that there was no regulation in force to implement
properly because of legal advice on a constitutional reference.
Apart from the legal advice relied on by the Secretary for Personnel
Management, there is no evidence of any Court Order restraining the
Department from implementing the Act pending determination of the
There is also no evidence of a ministerial direction pursuant to s
20 of the Act to
set up a structure.
The sum effect of all that is that at the time of the allegations,
the prior existing
structure was the only implementing body for the Authority
recognised by law.
It was headed by Mr Albert Ului as Acting District Administrator.
Despite the lack of approval for a structure or a ministerial
direction, the board
on 29 November 2018 at the initiative of the leader set up a Ward
Structure to implement projects. It employed persons in positions
therein and paid them from the DSIP fund allocations of the
structure was first headed by Rueben Lulug as Project Manager with
under his control.
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The teams were named as Programme Management team, Electoral
Coordinators and Electoral team and Finance and Administration team.
team respectively engaged employees in various positions. Under the
Coordinators and Electoral team component of the structure there
Electoral Officers with 3 Electoral Assistants each for the 3 LLGs
Electoral Assistant for Madang urban totalling 14 persons.
These acts may be construed as permissible in circumstances where
Authority was given wide powers under s 23 of the Act to employ
perform incidental acts.
Our view is that the powers given by s 23 were intended to
compliment the staff
in the existing structure if the leader or the authority discovered
that the existing
structure did not have the necessary capacity. The Authority could
employ persons under another standalone structure from the existing
That did not happen here.
By setting up the new structure, a pattern was created where duties
duplicated at unnecessary cost. The powers and functions lawfully
the DA and officers of the Madang District Authority were usurped.
A secretariat performed some of them. The evidence of the then
acting DA and
CEO Mr Albert Ulu’ was that by the creation of the new structure
two administration components in the district. One was composed of
public servants occupying 10 positions while the other being
employees of the
Ward Project Limited. He as the DA and CEO of the authority only
while the new structure implemented the activities of the authority.
A large amount of DSIP funds were spent on things where the money
be lawfully expended like payment of wages to electoral staff and
electoral office and rent for staff.
Monies spent were from batch payments disbursed quarterly by the
Finance from DSIP funds to the Ward Project Office who paid the
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providers or suppliers. It caused two sets of acquittals. One was
from the District
Finance for batch payments to the Ward Project office while the
was collated and compiled by the new structure administration.
Two documents were used on official purposes, one bearing the
Authority office name while the other bearing the name of the Ward
Office. The obvious resultant effect was that DSIP funds meant for
were expended to maintain an overloaded structure.
Even though the Act allows for the formations of a company the
incorporation of Madang Ward Project Limited was another load on the
Authority. It cannot be disputed that the company was specifically
to implement project requirements of the district which was
cumbersome through the existing structure. However, by the very
nature of a
company the general proposition is that a company is supposed to
income or simply put, make money. Revenue, expenditure, profit and
common denominators of a company.
In the present case the Madang Ward Project Limited does not fall
category of a real company. It existed by name only for one purpose.
public funds day in day out without complying with procurement
under the safety of the corporate veil. There is no evidence of any
generated by the Madang Ward Project company.
If there was any revenue generated by the company, then we regret to
we have not been led to it by evidence.
These outcomes would not have arisen had the leader exercised
improved the existing structure recognised by law like renovating
office and establishing office facilities to make conditions
compatible with normal standards.
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Our view is that the company set up by the board through the leader
intended to implement projects at will without having to comply with
requirements of Part VIII of the Public Finance (Management) Act
1995. It was
ideal for procurement purposes for the company to invoice the
Authority as a
service provider and the Authority pay them from DSIP funds or any
under its custody. Whatever money paid to the company from DSIP is
subject to Finance procurement processes or financial guidelines. It
company property and only answerable to Pastor John Orape as the
What is apparent from those observations is that the setup of the
incorporation of the company were very shrewd and flimsy ways of
public funds under the magic word “development”.
The conclusion therefrom is that the structure created at the
behest of the
leader was operating without the mandatory approval and therefore
employed to created positions whether temporary or permanent and
made as wages were illegal and void.
Where a leader breaches or ignores a law of Papua New Guinea he is
breach s 27 (1) (b) of the Constitution. (See Re Application by
John Mua Nilkare
(1997) SC 536)
Even though there was no criminal intent on the part of the leader,
intentionally causing the application of funds under the control of
Guinea to purposes to which it could not be applied he breached s 13
(a) of the
Organic Law on the Duties and Responsibilities of leadership.
By creating a structure in breach of the mandatory requirements of s
22 (4) of
the Act and making payments of DSIP funds to purposes to which it
could not be
applied, the leader is guilty of misconduct in office pursuant to s
27 (5) (b) of the
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Allegation 10. Misapplication of Madang DSIP funds on salaries and
electoral staff in the Madang District Ward Project Office contrary
to the DSIP
Under this category the referrer alleged that the leader
K233,514.449 of DSIP funds on salaries and wages of electoral office
staff in the
Madang Ward Project Office while receiving electoral allowance
fortnightly salary thereby being guilty of misconduct in office
under s 13 of the
The referrer submitted that the salaries and allowances for
electoral office staff
should be paid from the leader’s electoral allowance received
determination EL 2017-17.
The leader contended that the referrer had failed to plead the
particulars of the
DSIP guideline that he was alleged to have breached because there is
defined as DSIP guidelines.
It was the leader’s further contention that the payments of salary
and wages to
employees in the Madang District Ward Project Office were
accordance with resolutions of the board and its company in
compliance to with
s 11 (2) & (3) of the Act.
Finance division paid the wages for services provided and it was not
decision by the leader and therefore the allegation should be
To make our findings of primary facts under this category of
adopt what we said under Category 9 relating to the creation of a
We restate the evidence of the then CEO Mr Albert Ului that by the
the new structure there were two administration components in the
One was composed of Provincial public servants occupying 10
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the other being employees of the Ward Project office.
According to the evidence of Finance Manager, Helen Kanimba and
Finance Manager Joanne Yeni, Madang District Finance Office was the
office for all submissions from ward development secretariat for
and wages of staff and casuals engaged by the Ward Project Office
business arms with DSIP funds. The leader was involved in most
This process changed when the District Finance paid grants in
tranches to the
Ward Project office and the company paid its employees and service
The District Finance no longer produced the TFF3 & 4 forms for
payments to be
made to service providers. The DA only authorised as Financial
Delegate or s 32
officer because that activity or responsibility could not be easily
Before us in evidence were copies of disbursements from District
for periods 2017 to 2020 which were tendered into evidence through
Ombudsman. It included TFF 3 & 4, and cheque payment records.
All payments including payment of wages for all casual and staff
paid by the district finance from DSIP funds.
A tabulation of payments made shows the following;
A. Electoral Officers
1. Warib Medir K14,664
2. Tony Tigile K7,500
3. Stephanie Hanlou K7,200
4. Joel Robert K11,555
5. Sipora Sul K6,500
6. Gabriel Papita K15,500
7. Andy John K8, 000
8. Jerry Kuta K5, 200
9. Max Maupe K1, 372
10.Epen M. Kogoya K8, 121
11.Sipora Albert K9,450
12.Sheila Keltem K9,000
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13. Donny Atege K9,000
B. Rental Payments for staff;
1. Emela Amon K6,000
C. Payments for Church Christmas Programmes
1. Payment to 13 wards at K5, 000 each totalled K115, 000.
These were records of payments made by District Finance from DSIP
the various activities upon approval of the Board through the
leader. From 2021
grants were paid to the company and funds were expended through the
company and Ward Project Office and disbursement records were no
kept by the District Finance Office. It would be deemed that the
custody of them as they facilitated the earlier requisitions.
On the face of the record the payments identified above do not
spending on development purposes. It may be deemed that such
were lawful spending from DSIP funds allocated for administration
Administration costs in our view do not cover all manner of
are exceptions under the administration costs. Two obvious
wages of electoral officers and rental of electoral office. These
recognised under SRC determinations.
Under SRC determination EL 2015-17, individual allowances for
were replaced with a lump sum allowance named as electoral allowance
each member and paid with his fortnightly pay. The leader was
555 as non-taxable and paid fortnightly. The allowance included
electoral staff and electoral office rental.
The sum effect of those evidence is that there cannot be a combined
electoral functions and the normal public service administration
Despite that the Authority is possessed of wide powers under s 7 of
the Act and
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one of them is to engage consultants and other employees to assist
in its service
Section 23 of the Act, also in mandatory terms provides that the
be serviced by such staff as are necessary, including staff for a
provide administrative and secretarial support to the Authority, and
provide technical services to the Authority.
Our reading of “other employees” under s 7 and “such staff for a
under s 23 do not cover electoral officers for the sole reason that
they are not
recognised by the Act. The only law recognising electoral officers
is the Salaries
and Remuneration Commission (SRC) determinations. The employment of
electoral officials and their wages are specifically accommodated
allowances paid to each elected member by SCR determinations. There
evidence that SRC determinations can be implemented or executed from
We cannot agree with the leader’s assertion that SRC determination
of 2015 did
not apply. The allegations occurred when the SRC 2015 determination
force. The revised SRC determination of 2022 did not apply.
Electoral staff are the eyes and ears of an elected leader for the
are employed or engaged at the discretion of the leader. Their
engagement is outside of the normal public service structure. Wages
electoral officer would have to be paid from the electoral allowance
leader as intended by the SRC determination.
That was not the case with the leader. He permitted employment of
staff on the new structure. The new structure specifically named
officers against positions. By resolution no 2/2018 the Board
resolved to engage
temporary electoral staff and drivers and their wages for a budget
of K6,600 per
month as proposed by the leader. We find this to be a deliberate
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designed to make the payments of wages look valid in line with the
under s 7 and 23 of the Act.
We refuse to accept the leader’s assertion that those employees were
electoral officers. The naming of electoral officers under the new
cannot be an oversight. Electoral officers by the very name connotes
employed or engaged to help the elected leader perform his electoral
Electoral duties are more politically aligned and outside the normal
In the present case electoral officers were working from the office
rented by the
Authority at Divine Word University and paid from DSIP funds. There
evidence that the leader had an electoral office. There is also no
the leader paid any of the electoral officers from the electoral
received fortnightly. The evidence is scant as to whether the
payment of wages
for electoral officers were from the leader’s discretionary
The charge under this category alleged the leader as guilty of
DSIP funds. Misapplication connotes innocent mistake or error more
intentional deviation from what is proper.
In the present case there was no mistake or error committed by
anyone to pay
wages to electoral officers.
The structure was deliberately set up at the behest of the leader to
persons under the auspices of sections 7 & 23 of the Act to show
were lawfully paid to electoral officers from DSIP funds.
By allowing payments to electoral officers by the Authority while
the leader was
receiving allowances meant for such payments amounted to double
the part of the leader. By doing so the leader breached s 5(2) of
the Organic Law
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thereby being guilty of misconduct in office under s 27 (5) (b) of
and s 13 of the Organic Law under this category. We find the leader
Category 11 –
Under this category it is alleged that the leader allowed for the
Hitolo Carmichael Amet as head of the Secretariat while being a
member of the
board representing the community contrary to section 23 of the DDA
thereby being guilty of misconduct in office under s 27 (5) (b) of
This allegation has no basis. The undisputed evidence by Hitolo
was that she was never at any time appointed a member of the board
representing the community.
We find the leader not guilty of the allegation under category 11.
Category 12 was Withdrawn.
Category 13. Misappropriation of K15, 649,312.50 of Madang DSIP
through the Madang Works and Equipment Ltd in funding plant and
without following procurement processes.
Under this category the allegation is that the leader intentionally
549.50 funding for plant and equipment for Madang roads through the
District Works and Equipment Limited without following procurement
thereby being guilty of misconduct in office under s 13 (a) of the
The referrer alleged that the leader failed to apply the normal
process in relation to raising of claims by annexing three vital
Madang District procurement committee decision, Legal clearance by
Solicitor General and Contract agreement in breach of a Court
compliance with legislative procurement requirements, and paid
Madang Works and Equipment limited which was unlawful and applied to
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purpose to which it could not be lawfully applied. Therefore, the
guilty of misconduct in office under s 13 of the Organic Law.
The leader contended that the law allegedly breached was not pleaded
was no law defined as procurement process. The company was not an
as he was not a shareholder or director. There was no personal
decision by him to apply the funds as it was imposed on the
authority by a Court
Order. The allegation had no merit and ought to be dismissed.
This allegation is associated with a Court Order which directed the
DSIP to pay
monies to Madang Works & Equipment Limited. The allegation states
procurement processes ordered by the Court were no complied with.
The Court Order under item 4 states.
“The Madang District Finance Manager shall by 30 June 202;
release K5m of K10.9m deposited into Madang District Development
operating account for Madang town roads which shall be paid to
and Equipment Ltd to fund the implementation of the Modilon Road
and (b) raise a cheque for the amount of K15m from the Madang
Development Authority District Services Improvement funds made
Madang District Works & Equipment Ltd to procure works and plant
in compliance with legislative procurement requirements.”
The Court Order is specific as to who and which funds are to comply
procurement requirements. There are two lots of funds from the
was the amount deposited into Madang Development Authority operating
account. This fund is not required to comply with procurement
because a court order directed it to be paid to Madang works &
Court order did not specify whether procurement processes were to be
complied with under this transaction.
The other fund is the money paid to Works & Equipment Ltd from
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District Services Improvement funds. This fund is the one that
procurement by the Court Order. The enabling words being “funds made
payable to Madang Works & Equipment Ltd to procure works, plant and
equipment in compliance with legislative procurement requirements”.
The evidence before us relating to Madang Works & Equipment Ltd
financial documents for 6 tranches of K2.5m paid in compliance of
order. There is no evidence of where the money received by Works &
Ltd was spent on to ascertain whether the money spent was
We pose the question as to whether the company bought a grader for
without following procurement processes because spending attaches
misappropriation. Without spending no misappropriation can occur.
The oral evidence of the DA was that the company bought some plant
equipment and acquired some from the old regime, but they broke down
were no longer in use. This evidence was not verified by any
By a lack of spending records under this allegation it would be
farfetched to hold
that because there was no record of spending by Works & Equipment
money was misappropriated.
The allegation has not been proved to the required standard. The
leader is not
guilty under this allegation.
In conclusion we declare the following findings.
Category 1. Guilty
Category 2. Guilty
Category 3. Not Guilty
Category 4. Not guilty
Category 5. Guilty
Category 6. Guilty
Category 7. Guilty
Category 8. Not guilty
Category 9. Guilty
Category 10. Guilty
Category 11. Not Guilty
Category 12. Withdrawn
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Category 13. Not Guilty
Lawyers for the referrer: Public Prosecutor
Lawyers for the leader: Giruakonda Solicitors and Barristers