Friday, 6 November 2009 9:26 AM

Sir Allan's come back to Parliament a legal puzzle!!

Introduction

Sir Allan Kemakeza is a very popular person in the Savo/Russell constituency. His impressive victory in that constituency by election is a clear indication that he still has tremendous support from his people. While it is not surprising that Sir Allan is voted back into Parliament due to his popularity the issue regarding whether he was eligible to be nominated as candidate for the election due to a suspended sentence attracted tremendous media publicity.

This is an issue which Sir Peter Kenilorea the Electoral Commission Chairperson, and Speaker to National Parliament, has advised the Returning Officer about. However, such good advice was not considered with informed judgment by the Returning Officer. In this paper, I would like to explore this issue further. I will discuss the idea of a suspended sentence and, briefly touch on Sir Allan's case. Then I will explain by looking at National Parliament Electoral Provisions Act [Cap 87] and the Constitution not only why, but also how Sir Allan's come back to Parliament is a legal puzzle. .

Suspended sentence

To begin, it is quite normal for a court in some instances to impose on a person convicted of a criminal offence a suspended sentence. Generally, the granting of a suspended sentence means it is a sentence which the court gives either as a penalty of a fine or imprisonment, and that court then suspends. But this is still a sentence of the court.

For example, Tony was caught stealing a laptop from Jack and was convicted for that criminal offence. However, Tony was a first time offender. The court could imposed a penalty of 24 months imprisonment but then suspend 12 months of the imprisonment on the condition that Tony does not commit any crime for a period of 12 months.

What this means is that, Tony will serve 12 months in prison and the other 12 months it will be suspended with a condition subsequent. That is, Tony is required not to commit any crime for 12 months. Once the 12 months lapses or expires without Tony committing any crime then the penalty is discharge. But if Tony commits a crime within the 12 months suspended sentence then the court could revoke the suspension and have Tony serve the 12 months in prison.

Sir Allan's case

With regard to Sir Allan's case (see Regina v Kemakeza [2008] SBHC 41; HCSI-CRC 467 of 2007 (3 September 2008)) he was convicted of offences under section 295 (a sentence of 18 months), 231(1) (a sentence of 16 months) and 261(1) (a sentence of 16 months) of the Penal Code of Solomon Islands. The court ordered that all the sentences run concurrently thus the total length of sentence imposed was 18 months imprisonment. However, the court further ordered that two thirds of the sentence be suspended for a period of 12 months. Interestingly, there is no condition attached to the suspended sentence. Therefore, Sir Allan would only serve 6 months in prison while the other 12 months it was suspended unconditionally by the Court.

With the unconditional suspended sentence it means Sir Allan has no penalty to pay. However, his criminal conviction will remain part of the public record and it hangs over his head for a period of 12 months. It is public knowledge that Sir Allan began a six months prison sentence in September 2008 but had an early release from prison on New Years Eve 2009. Plainly, one could argue that Sir Allan has served his six months imprisonment. But whether his 12 months suspended sentence have lapsed or expired remains uncertain.

Qualification for election under the Electoral Act

It is a fact that the Returning Officer is vested with the power under the National Parliament Electoral Provisions Act [Cap 87] to receive and accept the nomination of candidates. The extent to which the Returning Officer should exercise such powers is clearly stated under the National Parliament Electoral Provisions Act.

It was also rightfully pointed out in the news media by both Enley Sade, the Returning Officer and John Babalu, the Chief Electoral Officer that the "Returning Officer's decision that the candidate has been validly nominated shall be final and shall not be questioned in any legal proceedings except on an election petition" (see s 28 (3) of the Act). Note, this power does not give the Returning Officer to ignore section 49 (1) (e) of the Constitution, the supreme law.

Under section 28 (1) of the Act it states that when a nomination is delivered that candidate shall be considered as nominated unless and until the Returning Officer decides that the nomination is invalid. The grounds for holding a nomination invalid by the Returning Officer are listed under section 28 (2) and this includes if the candidate is disqualified for election under section 48 or 49 of the Constitution. Whether the Returning Officer took into account the grounds listed under section 28 (2) before using the power given to him under section 28 (3) is debatable. Had the Returning Officer taken the time to read the Regina v Kemakeza case, I am sure he should be aware that there is a suspended sentence hanging over Sir Allan's head.

The excuse by Mr. Sade, the Returning Officer that advise from the Electoral Commission came after he had accepted the nomination of Sir Allan, therefore his decision is final appears to be based on a strict interpretation of section 28 (3). If the strict interpretation reflects the true intention of section 28 (3) despite the detection of an error then the excuse by Mr. Sade is justified. But if the decision of the Returning Officer though considered as final could be amended in circumstances where an error of law was made then there is basis to argue otherwise (see section 36 (a) and (b) of the Interpretation and General Provisions Act [Cap 85]. But this section should be read in light of section 2 (1) of the Act).

Moreover, it is the Returning Officer's responsibility to find out about whether a nomination of a candidate is valid or not based on the grounds provided under section 28 (2) of the Act. Whether Mr. Sade, the Returning Officer considered grounds 28 (2)(b) before deciding that Sir Allan is qualified for election to Parliament is arguable. However, on face value, it appears Mr. Sade failed to exercise reasonable discretion before determining whether Sir Allan's nomination was valid or not. Also, it seems he failed to use proper judgment to consider the advice given by Sir Peter the Chairman of the Electoral Commission and Speaker of National Parliament. His reliance on section 28 (3) of the National Parliament Electoral Provisions Act appears to be an error of law particularly if he failed to consider the grounds outlined in section 28 (2)(b) of the Act in the first place before deciding that the nomination of Sir Allan for election to Parliament was valid.

Qualification for election under the Constitution

Under the National Parliament Electoral Provisions Act it is quite clear that a nomination of a candidate shall not be invalid except if the candidate is not qualified for election under section 49 of the Constitution. Under section 49 (1)(e) of the Constitution it provides that no person shall be qualified for election as a member of Parliament who: "... is under a sentence of imprisonment (by whatever name called) for a term of, or exceeding, six months, other than a sentence in lieu of a fine, but including a suspended sentence, imposed on him by such a court or substituted by competent authority for some other sentence imposed on him by such a court".

A reading of section 49 (1)(e) of the Constitution clearly shows that if Sir Allan's suspended sentence still has not lapsed or expired then it is credible to argue that the decision by Mr. Sade, the Returning Officer to accept Sir Allan's nomination in the first place as valid is an error of law. The exercising of his power as granted by the National Parliament Electoral Provisions Act without adequate consideration of section 49 (1) (e) of Constitution, the supreme law is sufficient to establish an improper exercise of power resulting in an error of law.

A classic case authority addressing a similar issue is Government of the Republic of Vanuatu v Maseng Nalo [2004] VUSC 4; Civil Case 090 of 2004 (7 May 2004). In this case, the nomination of Nalo (Respondent) was accepted by the Electoral Commission and Nalo was presented to the Electoral College as a valid candidate. Later, the Nalo was elected President of the Republic of Vanuatu in 2004. Prior to his election as President he was convicted of a criminal offence and sentenced to 4 months imprisonment. However, the sentence of imprisonment was suspended for a period of 2 years from 3 April 2003.

The Government of Vanuatu challenged Nalo's election based on the Representation of People Act [Cap 146] and the Constitution. Under Article 35 of the Constitution it states that a person is "...eligible to stand as a candidate for election if he has not received a sentence including a suspended sentence..." The court held the election of the Nalo had no legal basis. He was not eligible to stand for election to the position of President since he had a suspended sentence. Thus Nalo's election as President of the Republic of Vanuatu in 2004 was quashed.

This case despite being a persuasive authority provides a good legal illustration on the declaring of a nomination as valid in accordance with electoral laws without adequate consideration of relevant constitutional provisions regarding eligibility for election. Likewise, for Solomon Islands the Constitution is the supreme law. Under section 48 and 49 of the Constitution it provides certain criteria on the issue of eligibility of a candidate nominated for election. Therefore, the exercise of the power given to the Returning Officer under the electoral law is subject to these constitutional provisions. Overlooking this basic inter - relationship between the Act and the Constitution opens up the basis for a legal challenge.

Conclusion

In short, while Sir Allan's by election victory is a clear indication that he still has popular support from his people the issue regarding whether his nomination as candidate is valid warrants a legal challenge. This legal challenge could have easily been avoided had Mr. Sade, the Returning Officer had a sufficient look at the relevant constitutional provisions before exercising his powers under the electoral Act to declare Sir Allan a valid candidate. Or had Mr. Sade, obtained adequate legal advice from the Attorney General before publishing the candidate list or considered the advice provided by the Chairman of the Electoral Commission I am sure there would not be much basis to challenge Sir Allan's impressive election victory.
But for now Sir Allan's come back to Parliament is a legal puzzle, which only the Court could solve.

Disclaimer: The views and opinions expressed in this letter/article are those of Joe. D. Foukona and do not necessarily reflect the official policy or position of Solomon Times Online.

Other Letters to the Editor All Letters
By GEOFFREY MAURIASI USP, Lacuala Campus, Fiji
By CHARLES KOULI Gizo, Western Province
By JAQUE FRIEDMAN New Zealand