The National Court has declared the 2022 election of Kagua-Erave MP Maina Pano as void and ordered a by-election following a successful petition by runner-up candidate Emmanuel Loma Pamea.
Justice Makail also referred another candidate, Topa Mata, and his supporters to the police for “further investigation and prosecution for hijacking and stuffing of ballot boxes with illegally marked ballot papers”.
In a lengthy judgement delivered this morning, Justice Makail made the following orders:
- The petition be upheld pursuant to Section 212(1)(i) of the Organic Law on National and Local-level Government Elections.
- A declaration that the election for Kagua-Erave Open Electorate is absolutely void pursuant to Section 212(1)(h) of the Organic Law on National and Local-level Government Elections.
- Consequently, an order that a by-election be conducted for Kagua- Erave Open electorate pursuant to Section 212(3) of the Organic Law on National and Local-level Government Elections.
- The candidate Topa Mata and any of his supporters engaged in the illegal practices are referred to the police for further investigation and prosecution for hijacking and stuffing of ballot boxes with illegally marked ballot papers pursuant to Section 110(1) of the Criminal Code and Section 191(14) of the Organic Law on National and Local-level Government Elections.
- An order for the refund of K5,000.00 paid into the National Court Trust Account as security deposit by the petitioner.
- An order for costs in favor of the petitioner against the first and second respondents, to be taxed, if not agreed.
Justice Makail said in his ruling that although Mr Pano, as first respondent, had argued that the illegal practices were not committed by him and his supporters nor were they committed with his knowledge and authority, the court’s duty is to protect the rule of law.
“The Court is the guardian of the law and protector of man must always uphold the law regardless of the personal circumstances of the parties to attain justice,” Justice Makail said.
“It is abundantly clear to me that the first respondent relies on the tests that the illegal practices were not committed by the first respondent or with his knowledge or authority. Based on the Court’s finding above, the petition would fail because the illegal practices were committed by another candidate, being Topa Mata and his supporters and not the first respondent or his supporters with his knowledge or authority. However, there is doubt if these tests applied in this case because the allegations in this case are not based on bribery, attempted bribery, undue influence, or attempted undue influence. They are based on illegal practices.”
The judge also blamed the Electoral Commissioner, as the second respondent, for ignoring the illegal practices earlier and not declaring Kagua-Erave as a failed election.
“Moreover, it baffles me that given the clear evidence of the election being compromised right at the very beginning at polling and further reinforced by the Returning Officer of the electorate’s report of the hijacking of ballot boxes and illegal marking of ballot papers for 17 polling wards, the second respondent ignored or on purpose, chose not to exercise his power to declare the election of the electorate as failed and advising the Head of State to issue a new writ for a supplementary election pursuant to Section 97 of the Organic Law on Elections.
“In conclusion, I am satisfied that the total number of votes affected by the illegal practices is 13,561, representing 11,097 votes from the 17 hijacked ballot boxes and 2,464 votes from 2 ballot boxes set on fire at Kagua police station as the winning margin was 4,550 votes. The total number of votes affected was more than the winning margin. I am further satisfied that the result of the election was likely to be affected. In my view, this is a case that fits the test under Section 215(3) that in addition to the result of the election was likely to be affected, it is just that the election should be declared void.
Finally, based on the Court finding above, there will be an order that Topa Mata and his supporters as the perpetrators of the illegal practices be referred to the police for further investigation and prosecution for hijacking and stuffing of ballot boxes with illegally marked ballot papers pursuant to Section 110(1) of the Criminal Code and Section 191(14) of the Organic Law on Elections.”
PNG Bulletin understands that Mr Pano will appeal to the Supreme Court to overturn the National Court’s decision and reinstate him as Kagua-Erave MP.