High Court Clears President Tong

Kiribati's high court last month confirmed Anote Tong as the country's fourth president, four months after he beat his older brother and opposition leader, Dr Harry Tong in the July presidential election.

Australian judge H C Williams was flown in to hear the case after Kiribati's Chief Justice Robin Millhouse disqualified himself from hearing a petition from three members of unsuccessful parties including two associates of former president Teburoro Tito. Having served the maximum three terms allowed under the constitution, Tito has been relegated to the opposition bench serving as an MP from South Tarawa.

The court case centred around the opposition's claims that Anote Tong or officials of his Boutokaan te Koaua (BTK) Party indulged in vote buying during the lead-up to the presidential election, contravening electoral laws.

There were eleven allegations, although these were reduced to nine during the course of the hearing that lasted 12 days during which 41 witnesses were called including President Tong and the man he replaced, Tito.

In his 38-page ruling handed down on October 15, Judge Williams spent considerable time over the thin line ni-Kiribati politicians had to walk between meeting customary obligations and abiding by anti-bribery legislation. The judge identified three main customary requirements that were associated with the allegations. These were:

• Mweaka which is described as a customary payment (often discreetly made by passing an envelope containing money) a visitor makes to a maneaba. € Bubuti is a form of begging whereby it is acceptable for someone lacking in resources to make a specific request to another who is better endowed to provide land or cash-in-kind.
• And the imposition of fines upon guests by a master of ceremonies in a maneaba (village meeting hall) as part of after-dinner entertainment in community and service clubs.

In his consideration of the nine bribery allegations, Judge Williams dismissed all of them, noting the payments were more to do with prevailing practice and customs, not as vote-influencing tactics.

• On claims that Anote Tong attended an Alcoholic Anonymous function in Bonriki "uninvited" and gave $100 and "two bags of pillow wool" as gifts, the court said:

"Evidence shows that the gift of money and wool was intended in a spirit of charity to an organisation deserving of support...Anote was not the only donor on that occasion...I do not consider that any corrupt motive has been demonstrated on the part of the respondent. The respondent honoured a pre-existing commitment to support the association. I see nothing untoward in the circumstances in which the gift was made and nothing which had any likely bearing on the outcome of the election."

• On Anote Tong paying $120 to Nuotaea village chairman in the village maneaba:

"The payment made is properly justified as set out in the defence as mweaka and payment for meals and accommodation. The amount involved is not out of the ordinary in the circumstances and was not given for any improper reason. The payment had no identifiable effect upon the election result."

• That Anote Tong's BTK Party paid $30 each to more than 30 unimane (elders) and council members of Marakei, totalling $990:

"In a sense, an approach to the Council clerk to arrange a political meeting was inappropriate although understandable. Likewise, Mataio (clerk)'s response was inappropriate but understandable...No one suggested that the fee was in return for a vote. In the particular environment of Marakei and in view of prevailing local attitudes, I am not prepared to find any corrupt motive in the arrangements. There is no suggestion that the outcome of the election would have been different if the payments had not been made. This was not a vote-buying exercise."

• BTK giving $200 to chairman of Onotoa Council and its government staff association:

Having regard to the custom of bubuti and the particular purpose of this gift I find there to be nothing untoward in the payment. The payment bears a similar hallmark to that attaching to the AA payment.

• BTK paying $60 to Rungata village chairman and two of its catechists: BTK Party was told that it was customary to make the payments to church officers. The BTK Party responded to the local advice which was apparently given to them in good faith. I find there to be nothing untoward in any of the three small customary payments.
• BTK paying $100 to chairman of Tabutoa village in Nikunau: However it may be characterised, the payment was made in this case was no more than sufficient to meet the moral obligation. ... I have the impression that these payments represent a careful assessment of propriety. I find there to be nothing untoward in these payments.
• BTK officials paying $40 as gift and $300 as "fine" for purchase of 3 rolls of pandanus cigarette leaves or Œrauara' at Muribenua village in Nikunau. Te rauara usually cost $2.50 a roll.

In addition to customary payments the BTK Party paid a "fine" of $300 imposed by the master of ceremonies ostensibly as a joke in the maneaba...I am uncomfortable with the practise although upon the evidence I am not prepared to find any corrupt motive in the payment.

On former President Teburoro Tito's testimony that he would never pay the fine so as not to contravene the electoral laws, the judge said this was a commendable attitude "but I am not prepared to find that the fining incident had any effect upon this election."

"This opportunistic practice of "fining" public figures in maneabas is unfair although is had long been tolerated in Kiribati. Although I treat the practice in this case as not affecting this election I consider that the common practice is providing an invitation for abuse. However, allowing for the spirit in which this incident occurred, I do not consider that those present in the maneaba at Natareta would have been influenced in their casting of their votes by what they observed. I do not consider that payment was requested or made with a corrupt motive."

• BTK Party's radio announcements promising back-pay to all landowners with lands leased by government which were based on a false premise that the previous government had failed to review land rentals:

"In my opinion this misrepresentation is to be classed as a political promise which does not affect the ability of the elector to cast his vote as he thinks fit upon matters of policy. (If the misrepresentation had unfairly disparaged a candidate, my attitude may well have been different)...The misrepresentation was inadvertent and was not the result of any corrupt motive. There was no deliberate attempt to obtain any improper advantage. This misrepresentation or promise was not of a character which (as now relevant) would lead to the voting being corrupted."

• That the Unimwane Association of Maiana (older men association in Maiana) directed all electors to vote for Anote Tong on pain of penalty: "The views of the Unimwane Association undoubtedly carry great weight upon Maiana. There is nothing improper in the old men seeking to provide guidance as they see fit. There is no evidence of oppression in the actions of the old men. It is not unusual within a democratic society that various groups such as those affiliated with or leading a particular church or community may give support to a particular political party although some may question the wisdom of such a step. In my opinion the conduct of the old men in Maiana provides no basis for complaint."