Australia wont admit supporting corupt regim in PNG

SBS report two nights ago plus some of the comments from various commentators has had me thinking about why Australia has continued to remain quiet in the face of all these massive corrupt and fraudulent dealings in a country that it continuously gives the largest chunk of its aid monies to? There are many factors at play here but I think that to fully understand how and why, one needs to go back to early 2012; on the eve of the Somare/O’Neil political impasse that set us on the road to where we are now. It has, coupled with all the window dressing developments in POM and other parts of PNG, made me ponder another factor in addition to the above.

The second thing has to do with the nature and definition of a “con-man”. I would venture that all these developments (which I termed window dressing developments) are the handiwork of a con-man. A con-man, by definition, takes you into their confidence or vice versa and does things which makes you believe in him until one day you realise that what you thought they were doing for your benefit was the other way around – it was for his benefit. You were just a means to an end. After which he conveniently dumps you like so much garbage and forgets you. I believe there a couple of people who helped form this government but are now out have woken up to this. They were taken in and “conned”. Similarly, we the people of PNG are being conned by “over inflated” projects which are delivered with shoddy workmanship and questionable materials. Highly publicised services to the people which in fact serves to enrich some people while the people get practically nothing. Cases in point are the “free health care” and “free education” schemes. A lot of hot air, much publicity and chest beating while real health service delivery is dwindling and education quality has dropped so much, I wonder how the universities can actually enrol new intakes (which n itself questions the quality and standards of the universities). So PNG, we have been conned and duped! Yes, and big time.

Now why I said go back to 2012 is because people must remember that for a nation that says it is run on respect for the rule of law, Australia has actually shown that it can throw that into the toilet when it suits their purposes. After the Supreme Court of PNG ruled that Gr. Chief Sir Michael T Somare was the legitimate and lawful Prime Minister of PNG, the O’Neil faction rebelled against that decision and did all kinds of things – some comical as per the famous photo of them crashing the gates to Government House.

The thing here is that the Australian Government formally recognised the O’Neil Government as the legitimate government of PNG – despite our Supreme Court ruling otherwise. How did that come about? What deals and concessions were made to allow that to happen? Why did Australia openly chose to disregard the lawful ruling of a Supreme Court of a foreign country? How were the decisions of the Supreme Court unlawful that Australia chose to disregard it? Soon thereafter, we saw the Manus Island deal come to fruition. We all remember that Somare was vehemently against this. Unfortunately for PNG, once they got stuck into it, the Aussies found they couldn’t get out of it for a whole host of reasons.

I would like Messrs. Sam Basil and Belden Namah to come out and say what the deals were that caused Australia to formally recognise their then government, going against the ruling of our Supreme Court. Mr. Basil has taken the first step and made certain allusions to this. As a respected national leader, he should go all the way and put out the dirty laundry for all to see.

One thing has led to another and despite mounting evidence, suspicion and conjecture that something is not quite right in PNG and that almost all its aid money is ending up back in Australia as stolen or laundered money, Australia continue to man the bowels and pump more money into this bottomless pit called PNG. Why should it complain when it is giving with the right hand and taking back through the left hand? Australia is not losing is it?

 So however it gets it, by hook or by crook, it still gets it. If in the process a few million PNGeans suffer from inadequate health care and education, well we’re not Australians are we so why should they care. We are sovereign nation and our internal affairs are not their business. Yet they chose when it suited them, to make our domestic legal business their business by recognising an illegal government in the interests. A blatant case of double standards.

Does anybody think that Australia will ever admit to their mistake and the subsequent suffering they have cause the majority of our people by their actions? Not in our lifetimes in my opinion.
So it is definitely not in Australia’s interests either to take action on corrupt and stolen money entering Australia because by doing so they will have to shake the very foundations on which their Asylum Seeker Policy is built – the deterrence factor of Manus Island.

INTRUST SUPER CUP A BIG HIT IN PNG

 
 Can PNG build on from this unprecedented development in rugby league with PNG Hunters or even explore the QLD's Intrust Cup prospects?
 
Queensland's Intrust Super Cup turns out a BIG HIT in PNG after two of its teams, PNG's own Hunters and Souths Magpies took to the capital - Port Moresby for the first time after the introduction of the PNG team to the 2nd Tier Queensland Rugby League in Australia. The match was a trial match to test the newly renovated Sir John Guise Stadium (renamed BSP Stadium) which will host most of the sporting activities of 2015 Pacific Games including the Opening Ceremony.

Intrust Super Cup (ISC) is a second-tier rugby league of Queensland, Australia. Papua New Guinea has a team, the PNG Hunters competing in the league and has been hosting home games in Kokopo, East New Britain since its inception. Kokopo was selected as the Hunters' home ground when the country's old and dilapidated major sporting infrastructures including Sir John Guise Stadium, Sir Hubert Murray Stadium and Lloyd Robson Oval underwent renovation as well as complete overhaul and construction in preparation to host the 2015 Pacific Games.

Many of these infrastructures are nearing completion with Sir John Guise Stadium being the first to be done. Thus the Stadium hosted the above game, many described as spectacular and historical with spectator turn-out or participation hitting an all time high, surpassing or even disparaging any record crowd back in Australia where the Intrust Super Cup originated and is played.

The historic event as well as the interception of the facilities has, according to some Social Media posts, revolutionized sporting in Papua New Guinea and its state-of-the-art or world class facilities would add more flavor in what is expected to develop sports and especially rugby league in Papua New Guinea.
.........................(am not a reporter sic)///////////////
Anyhow, Papua New Guinea watched this historic event and within the next 24 hours, all its social media outlets went viral from every angle with some boosting about the new look stadium, the historic game played between the two teams, the players profile and displays, whilst others including cynical social media personalities (including self) were at their best to throw at anything from the Stadium being half temporary and half permanent to players attitudes, etc.

Well, everything will be history now but I want to raise these issues below to take us to a review of PNG Hunters in terms of Rugby League Development and the Team's position in the overall PNG National Rugby League:

(1). Where does the PNG Hunters fit into in PNGRFL structure?
(2). Which rugby league code in PNG will feed or sustain PNG Hunters' players?
(3). Where will PNG Hunters' products end up?
(4). What do we aim to achieve of PNG Hunters team since its maintenance and or sustainability will consume a lot of tax payers money?
(5). Since the Intrust Super Cup is a big hit in PNG, what does the management has in store to capitalize that momentum and catapult the league's development?
(6). How is PNGRFL aligning the development of rugby league with the PNG Hunters?
(7). What are some of the yardsticks PNG will use from the PNG Hunters to integrate and measure rugby league in PNG?
(8). Overall, how will PNG via its premier institution, PNGRFL drive the code using PNG Hunters as its footstool to take rugby league into the future in PNG as well as in the Australian National Rugby League?
(9). Is PNG Hunters a "NATIONAL" team?
(10). How will the development of PNG Hunters impact on the formation of the PNG Kumul, the country's national team?

These are issues I wish to seek the audience of PNGRFL Management as well as PNG Hunters administrators to discuss with. I will also suggest some ideas and in between the lines, some answers to the questions above will come into the playground.

1): Can PNG propose to the Intrust Super Cup to field FOUR (4) Teams including PNG Hunters? The four PNG Intrust Super Cup teams must represent PNG's four regions (NGI, Southern, Momase and Highlands).
2): If the above request is approved, can PNGRFL "revitalize and restructure" PNG School Boys League to be the Tier or Feeder League for the PNG Hunters plus the other proposed Three Teams? The School Boys League must have Four Plates all representing the four regions.
3): If not, if the proposal can not be done, how then will PNG Hunters feed its players and maintain its player profile? What are the selection criteria? Who select PNG Hunters players? Is playing in the PNG Hunter team a ticket to play in the Kumul team?
4). PNG Kumul selectors have a wider spectrum of leagues to select the national team including: PNG Hunters, Digicel Cup Teams, England League, Australian NRL and others including the Intrust Super Cup, NSW Cup and NSW Holden Cup. But, we have seen the Kumul dominated by the PNG Hunters thus does that indicate something? Is that a fair representation? Do we have a formidable Kumul team to trust? I think one of the worst scenarios of not selecting a fair representation from all spectrum like above dredged or plucked PNG another step lower and probably the worst selection we've had. Selectors ought to understand that PNG Hunters team do not form the core of rugby leagues top breed of players to qualify for PNG Kumul.

There are many ideas coming into mind but I wish to throw the towel to every Papua New Guinean to discuss how we can help develop rugby league and other sports in PNG to par with the modern sporting facilities our current government has delivered to us as the 40th Birth Day present.

WHOSE INTEREST ARE YOU SERVING SUSAN MERRELL?

My dear fellow Papua New Guineans, the so called Dr Susan Merrell has in effect said that the Judiciary of the Sovereign State of Papua New Guinea in not infallible, That amounts to sedition and she must be arrested and charged immediately when she is in the country.

The Judiciary in PNG today is the last bastion of democracy and can never be questioned by aliens. The JUDGES RULING IS FINAL therefore the discipline forces will act accordingly to administer justice in so far as the Independent Sovereign State of Papua New Guinea is concerned. PNG has adopted English Common Law from its colonial past. Laws are made to be amended as and when the evolution of the society in question sees fit under its sovereignty therefore Susan Merrell can’t tell Papua New Guineans that their ruling judge has erred.

The Sovereign State of Papua New Guinea is not strictly obligated to follow the provisions of English Common Law,  We have parliamentarians and legislators to amend the Constitutional provisions by the virtue of our political independence accorded to us in 1975 Susan Merrell cannot tell us how to live in our free country.. I think our PM has some idea or may be in some sort of a relationship with Susan Merrel who is allegedly in the country at the moment supposedly staying in Crowne Plaza Hotel. I want to ask this question to my audience:- Has Susan Merrell ever gone against the incumbent PNG Prime Minister since she has seen fit to go against the deputy chief justice? Susan Merrell has an obsession with PNG’s political leaders – first with Belden Namah and now PM. My observations are deduced from her obsessions, persistent and largely unpopular opinions and statements on social media about our people and our government.

Many Papua New Guineans have suggested strongly that PNG blocks Susan Merrell from commenting about PNG politics and social issues but I personally (of course I have the democratic right to) want to be objective as a learned man. So I have decided not to attack Susan Merrel personally but look at the person objectively and try to understand why she published what we believe is highly contemptuous, defamatory and seditious writings against PNG's Deputy Chief Justice.

By the way, I won’t be surprised if Susan Merrel is given a job by GoPNG since she hasn’t said something bad against our PM to my knowledge and we the learned people can see that the Judiciary (headed by CJ Sir Salamo Injia & DCJ Sir Gibbs Salika) is on the opposing ends with PM (separated by a myriad of legal procedures & correctness in administration of justice - ie. warrant of arrest) now since the PM refused to come to the courts to clear his name from the allegations. If PM had his way, he would obviously just terminate CJ Sir Salamo Injia and DCJ Sir Gibbs Salika in the name of ‘political stability’ to put all matters to rest.

Susan Merrell, if you are reading out there, let me tell you this:- PNG is a very small place yet further subdivided into 700 hundred nations. All people living here belong to an identified group therefore it is relatively easy to identify aliens with vested interests in this country. Beware that PNG is no safe haven for you. You are PNG’s public enemy number one for attacking our Judiciary. You have been aftering Belden Namah for some time and now you are after the PM. Your posts suggests that you have conspired with Tiffany Twivey-Nonggorr who had represented PM Peter O’Neill in resisting arrest and questioning by the courts for allegations of fraud by the Fraud Squad.

Now you are here just when the Chief Justice of the Supreme Court of the Independent Sovereign State of Papua New Guinea in its ruling has convicted Geoffrey Vaki the ex-CoP for Not Arresting the Prime Minister Peter O’Neill as ordered by the Papua New Guinea Sovereign Court of Law. This Prime Minster IS UNDER ARREST as per the PNG Sovereign Constitution - Full Stop... Just that Vaki couldn’t effect it doesn’t make the PM free of the blame and allegations.

The PM of PNG is still a suspect (Not Guilty but a SUSPECT) in the alleged K71.8 million payment to Paul Paraka Lawyers – nothing changes that. Susan Merrell, what is your opinion of that since you have seen fit to look around for all potential reasons to say that DCJ Gibbs Salika is not infallible in his rulings?

SODOMY VICTIM TO SUE STATE MINISTER

by The PNGBlogs Staff

Sports and Pacific Games Minister Justin Tkatchenko is under the spotlight again this week after a rape victim has come out publicly to confirm legal proceedings have taken place to claim for damages done to him by the Minister while he was employed at the NCDC Botanical Gardens between 1998 - 2000.

The victim from Wapenmanda district in the Enga Province has confirmed to ThePNGBlogs he has been under duress and he's burdened with feelings of worthlessness, at one point even contemplating suicide and self harm after he was sexually abused by a man who is currently the face of PNG and the Pacific Games.

His intention is to bring to light what happened 16 years ago, The victim, who cannot be named for legal reasons is a father of 4 kids is now in his forties.

When queried by PNGBlogs on the long delay in seeking justice he said he could not hide this anymore after his family and tribe asked him to speak out because on his Anorectal diseases or Anal Disorder, he has been living in shame from his family all these years but decided he has had enough and is seeking damages in Court.

Justin Tkatchenko has never been arrested even after various complaints have been filed with the Police. He said the minister would pay them extra incentives for giving him oral sex and would and would also provide extra cash if he thinks you like it.

The whole picture of Justin Tkatchenko is that of a general ratbag and corrupt manipulator. A big fish attracted to the small pond of PNG. A fraud, a fake and a sodomist. That's why a lot of people are praying for Justin's failure at the Pacific Games. They reckon it is long deserved payback for the contempt our Tkatchenko has thrown at the grassroots of Papua New Guinea for the last two decades. Justin Tkatchenko came to PNG supposedly to do good and has done very well indeed.

Is Australia willingly turning a blind eye to corruption in PNG?

The allegations reported in the Australian media of an Australian mining company bribing high ranking Nauru politicians is a real test for Australia. The stakes are high. Nauru hosts one of the asylum detention centres under Australia’s “Pacific Solution” policy. Nauru, together with Manus in Papua New Guinea, has relieved Australia of the influx of boat people to Australia and the Australian Government needs the ongoing political support of the host nations to continue the operation of the detention centres.

Thanks must go to the Australian Federal Police (AFP) who, without fear or favour, investigated this case, which could potentially harm Australia’s relationship with Nauru. From the media reports, it seems that the AFP is at an advanced stage of the investigation and arrests might be made soon.

Australia is a member of the OECD Working Group on Bribery and a party to the key international conventions concerned with combating foreign bribery, such as the Anti-Bribery Convention and the United Nations Convention against Corruption.
Australia is also the immediate past president of the G20. According to the fifth principle of the G20 Guiding Principles on Enforcement of the Foreign Bribery Offence:

“Investigation and prosecution of foreign bribery should not be subject to improper influence based on concerns of the national economic interest, the potential effect upon relations with another State, or the identity of the natural or legal person involved.”

To remain a corruption-free trading partner in the region, Australia needs to show the way in dealing with bribery allegations such as this, even if it comes at a cost.
There is some scepticism that Australia is held over a barrel with the asylum seekers deal and is willingly turning a blind eye to the corruption and rule of law problems that are plaguing the host nations –PNG and Nauru. This case will test those claims.
Australia also has to contend with the recent adverse findings of the Financial Action Task-Force (FATF) [pdf] that:

“Australia remains at significant risk of an inflow of illicit funds from persons in foreign countries who find Australia a suitable place to hold and invest funds, including in real estate.”

When it comes to bribery of foreign government officials, it takes two to tango: the bribe-giver and the bribe-taker. Getax, the Australian mining company alleged to have been involved in supplying the bribe, may have its directors and the company itself prosecuted by the AFP under the Australian law. But we should not forget the Nauru officials who may have demanded the alleged bribe.
Under the Australian Criminal Code Act 1995, only Australian companies and individuals engaged in bribing an official in a foreign country can be prosecuted. This is not dissimilar to the United States Foreign Corrupt Practices Act of 1977 (FCPA). There is, however, a way around it. If the proceeds of the predicate or underlying offence, in this case bribery, are found to have been laundered to Australia, then Australia can mount money-laundering actions against the persons implicated under the Proceeds of Crimes Act 2002 (POCA).
Prosecuting any Nauru officials will require the cooperation of the Nauru authorities. The Nauru Anti-Money Laundering Act 2008 makes provisions for cooperation with a foreign state in the investigation and prosecution of money-laundering offences (see section 80 of the Act). Nauru itself can prosecute citizens who launder the proceeds of a bribe overseas (see section 6 of the Act). Nauru also has the Mutual Assistance in Criminal Matters Act 2004, which directly corresponds with the Australian Mutual Assistance in Criminal Matters Act 1987 to facilitate cooperation in the prosecution of persons for criminal matters.
The precedent that Australia sets in this case could assure the rest of the Pacific Island countries that Australia does not tolerate corruption and is prepared to pay the price to combat cross-border corruption. Or it could send a message that in cases of corruption Australia will only go after the bribe-giver, and not government officials. It seems that the cat has now been let out of the bag and there is only one way – investigate all the offenders.
* Sam Koim is Chairman of the multi-agency, anti-corruption body Taskforce Sweep and Principal Legal Officer at the Department of Justice and Attorney General, Papua New Guinea.

UPNG ROTS FROM UNETHICAL AND POOR MANAGEMENT PRACTICES

Since the current management was appointed, UPNG has completely fallen off the academic radar and ladder. UPNG since has been suffering from nepotism, unethical behaviour, vindictive management practices and lack of academic thrust and direction.

1. Decision Making Process
Any management guru will tell you that the quality of the decisions in an enterprise, organisation or an institution reflects on the value such decision adds to the organisation. When the decision making process is poor, then the value such a decision adds to the organisation is poor. After two years, it is now very evident that the decision to appoint Mellam as the VC was a poor decision. The University of PNG is suffering under his VC-ship in all fronts, reflecting a poor decision and reflecting the quality of the decision makers.

2. Management of the University
Under the current managers of the University, the management practices now being experienced have been non-conforming and out of this planet.
The current management is so vindictive that staff at UPNG work in fear, a cartelist to pretentious performanceoutput by staff. VC is using the old negative archaic style of management of using fear to try achieving results however, someone has to tell him to use the most positive modern rewards system instead.
The UPNG Council condones the statutory non-compliance by the University Management but supports the Management in its vindictive behaviour towards staff of any wrongdoing. This is resulting in qualified hard working staff being terminated or not sought and recruited.
A number of staff have tried reporting this to the council but have been reprimanded and the administration have since been vindictive towards them. The Council’s behaviour towards potential whistle-blowers has discouraged them and many have not done so in fear of adverse consequences. The following is now rife at UPNG:

• Misappropriation of funds – Very Expensive Cars, More than one official car for one officer, unwarranted and unaccounted for overseas travels, while UPNG has no money to support its most important core business

•  Failure to comply with University Laws and regulations in making decisions

•  Harassment of staff – Treats to sack staff for minor offenses, Sitting at the gate of the University by Mellam like a little High School Principal& keeping roll-call of late comers is the worst form of intimidation.

• Corruption in administration --- appointment of underqualified staff to very senior university positions…. E.g. Academic Audit Director went to his Sepik wantok… who was neither a professor nor an Associate Professor. Invites him to sit in all Senior Management meetings including Senate and Deans Committees when he is not even part of these committees…. None of the University Statutes nor the By-Laws warrants such an absurd practice, which has gone unquestioned by neither the other University Officials nor the Council. And the appointment of the Deputy Dean research…hmmm well you guest it right… another blunder and corrupt practice…. In the appointment of a recently PhD holder who has no research credentials to hold that position 

• Top Down… authoritative Management style.--- total absence of consultative management at UPNG now. There is total lack of consultation with Executive Deans, Professors and Senior Managers. This VC totally lacks the understanding of the importance of maintaining trust. That trust is a fundamental aspect of collaborative leadership that world renowned Universities are founded on this practice. He lacks to understand that good working relationships, listening, common interest and sharing power all contribute to – and depend on – mutual trust

2. Illegal and Unethical Conduct
Mellam has been involved in unethical practices since his appointment. It is an open secrete at UPNG that he keeps a mistress (Grace) at UPNG. It has now surfaced that she is his bestowed wife in their village. He recruited her from DWU then sent her off to do a PhD, which she failed. Upon her return, she moved into a fully maintained, furnished and curtained house at UPNG. This is contrary to the UPNG Council decision of staff buying their own white goods and furniture. A failed PhD candidate is living in a well-maintained house while most of the Professors and staff are living in dilapidated houses.

After she failed her PhD studies, Mellam instructed the Director of SDU to continue maintaining her on Staff Development Position because the school refused to accept her back after she failed……thisis blatant CORRUPTION.. This went completely against the UPNG SDU policy on Study Fellows.

Mellam and his ladies dining out

This does not stop there… Mellam has taken overseas trips with Grace on a number of trips. Her official capacity in those trips is unknown to the University.
Oh and guess what…Mellam, his official wife and the mistress have also gone on official trips together. The three of them are a regular sight in Port Moresby shops and restaurants.
Mellam is regularly sighted in Graces’ office in early hours..as early as 6.30am and late in the evenings. One particular happening in her office has been the talk of the University, when two senior staff members, one a female (SDU) and a male (SBA) caught Mellam in Graces’ office in a very uncompromising position…..sothe story goes on..


3. Academic Leadership

Mellam totally lacks academic leadership. Since his appointment, no active academic discourse has taken place at UPNG.  He fears and runs away from Professors. Besides the routine Senate and Council meetings he has not held a single academically oriented meeting with all Professors and Associate Professors of the University. It is a major requirement in any university for the VC to regularly meet with Professors to discuss and chart out the academic direction of the University. This VC is so academically inapt that he cannot lead the Professors in the University in academic discourse.

Also, no major research has been conducted resulting in no major publication. The University has turned into a small teaching college with many academic staff unqualified to give quality lectures.

4. Strategic Leadership
The University suffers from total absence of strategic direction from lack of strategic thinking and strategic leadership. This is because the VC lacks the following:

• He lacks the ability to engage with the wider community on behalf of the university
• He is so involved in the routine tasks of managing the University, tasks that should be taken care of by the PVCs and Executive Deans that he can not see through to the bigger picture of managing and linking the university
• He is concentrating on visiting places like India where no new ideas and knowledge is coming from. He is so incompetent that he is scared of collaborating with more reputable Western Universities Spends less time with Deans and Professors to open up to their critic and advice on how the University is being managed and if the academic programs are progressively improving or not.
• He totally avoids and quashes debate on ideas and questions from staff on how the university is being managed
• He is working and managing the university using very old and archaic management model

Since Mellam took office, he has not once held a meeting with the senior members of the University to review the Strategic Plan of the University.

Mellam’s appointment has resulted in the University’s vision and goals falling face first.
He lacks strategic focus that he is unable to extrapolate the current issues facing the university to set the future strategy.

He lacks understanding that an effective strategy is one that is organisationallycomprehensive. That it provides the multidisciplinary capacity to translate fundamental trends into relevant opportunities for creating comparative advantage and then deploys the appropriate initiatives.
And Mellam lacks the ability to manage competitive opportunities to help achieve the overall vision and goals of the University to the Premier University of the Pacific.
What all these means is that…. Mellam is totally unable to lead the creation of  a unique and valuable position for UPNG…… using different sets of administrative and academic activities to do so.

5. Financial Miss Management
The University is financially mismanaged. The University constantly lacks operational funds. The scares financial resources of the University is being spend on very expensive cars and unnecessarily overseas trips that produce no positive results for the University.
The ongoing major projects are all mismanaged. Most of these projects have contractors stop working due to lack of payment of their claims. Advance payments without job starting yet for these projects have affected the cash flow of these projects from the Planning Department.

6. Illegality of Mellam’s Contract Renewal
The University community has only recently come to know of the secretive renewal of Mellam’s contract by the Standing Committee of the Council in February 2015. What is wrong with that:

Legallythis is not correct. This is an illegal move by the standing committee of the council. The new Higher Education Act, which superseded the UPNG ACT in November 2014, stipulates that the NEC on the advice of the Minister responsible for Higher Education willappoint/renew the VCs of State Universities. The process followed in the reappointment of Mellam is rigged with error. A committee chaired by a PVC, with membership of Senior Officers including Deans and Professors did not review the performance of the VC. Only then a recommendation should have been made to the staffing committee, which then recommends to the council for renewal or not. This did not take place obviously for fear of non-renewal.

7. Recommendations

• The NEC should immediately constitute an investigating team to investigate the mall practices at UPNG
• NEC using the provisions of thenew Higher Education Act immediately remove the current incompetent and corrupt management and replace it with a new one

THE EFFECT OF THE RECENT SUPREME COURT DECISION

THE EFFECT OF THE RECENT SUPREME COURT DECISION IN THE CASE OF EREMAS WARTOTO v. THE INDEPENDENT STATE OF PAPUA NEW GUINEA SC1411 (2015) (INJIA CJ, SIR SAKORA, KIRRIWOM, KANDAKASI & DAVANI, JJ)

On 27th January, 2015, the Supreme Court comprised of five (5) men bench handed down a very important and landmark decision which for the first time had settled some very important confusion on procedural law in this jurisdiction.

The brief factual background of the case is that Eremas Wartoto, through his company Sarakolok West Transport Limited, came up with some scoping to repair and maintain Kerevat National High School. It was a closed tender and the contract valued at K7, 989, 892. 00 was awarded to Sarakolok West Transport Limited through the office of the Department of National Planning and Monitoring. It is alleged that only K700, 000. 00 was used to do repair and maintenance works at Kerevat National High School and the balance of K7, 100, 000. 00 was applied to meet Eremas Wartoto personal and his company’s own expenses which included the payment of bank loans and purchases of other property unrelated to the purposes for which the funds were released. Hence, Eremas Wartoto was arrested and charged with two (2) counts of the offence of Misappropriation contrary to Section 383A of the Criminal Code Act, Chapter 262. Eremas Wartoto has been committed to stand trial at the National Court on these two (2) offences.

The brief facts giving rise to the appeal to the Supreme Court and its subsequent decision (this decision) are that the criminal case of Eremas Wartoto came to the Judge Administrator of Fraud Related Cases, Deputy Chief Justice Sir Gibbs Salika, for directions in preparation for trial (hearing). In the course of the directions hearing, the lawyers from the office of the Public Prosecutor presented a draft indictment (charge) to the lawyer for Eremas Wartoto. Eremas Wartoto then commenced a separate civil case seeking a stay of the criminal proceedings against him on the main premise that the State had no interest whatsoever over monies that were paid to private contractors and hence Eremas Wartoto cannot be criminally prosecuted for such. The National Court presided over by Deputy Chief Justice Sir Gibbs Salika refused the application. Eremas Wartoto appealed that decision to the Supreme Court.

The main issues addressed by the Supreme Court, amongst others and which are important for public consumption were that:

(a) Can a civil proceeding be employed to permanently stay criminal proceedings; and
(b) Does the State loses all its interest or property rights in public funds paid to private contractor for certain public works once it pays the funds over to a contractor?

For issue (a), the Supreme Court held that civil proceeding must not be used to temporarily or permanently stay a criminal proceeding. This, in essence, means that if an accused person is aggrieved by a decision made in the criminal proceedings or if there is a procedural blunder, he/she cannot file a civil proceeding to challenge that decision or procedural blunder and temporarily or permanently stay the criminal proceeding. If the accused person wants to challenge that, he/she should do it at the criminal proceeding. And for clarity, the criminal proceeding starts when information (criminal complaint) is laid at the police station.

In the course of its deliberation, the Supreme Court also said that civil proceedings must not be mounted to challenge and also seek temporarily or permanently stay;

(a) The investigation conducted by the Ombudsman Commission and the referral;

(b) The referral by the Public Prosecutor of the leaders to the Leadership Tribunals;

(c) The Leadership Tribunals;

(d) The commission of inquiries; and

(e) The investigation and proceedings of the Lawyers Statutory Committee.

For issue (b), the Supreme Court held that the State maintains its full and unrestricted interest or property rights on the public funds released to the contractor until the purpose for which the funds have been released are achieved or accomplished.

Now, this is a five (5) men bench of the Supreme Court and the decision was unanimous. The procedural misconception in relation to issue (a) is settled now. This decision has a lot of bearings on current controversial cases before the Courts.