1707 Issue of six disputed ballot boxes for North Waghi in Jiwaka

In my letter dated Friday 14 July 2017 to the Returning Officer for North Waghi Open electorate Mr. Andrew Kulangi, I have given directives for the six (6) disputed ballot boxes from the Kerowil polling venue in North Waghi to be admitted for scrutiny or counting.

I have overturned my decision for the six disputed ballot boxes to be set aside after receiving advice from the Solicitor General’s Office and reports from the Returning Officer and the Presiding Officer for Kerowil.

These six disputed ballot boxes are for Bolba 1, Bolba 2, Tolu 1, Tolu 2 Kend 1 and Kendu 2.

The next 3 ballot boxes are from Kapalku 1, Kapalku 2 and Ngumbkora.

Allegations raised in a petition by candidates contesting the North Waghi Open seat essentially are that the sitting MP Dr. Fabian Pok’s supporters rigged the whole voting process by controlling polling booths, disallowing voters of opposing candidates to vote and casted votes illegally under the residence of military personnel at the Singirok Army Barracks.

The petitioners provided two (2) amateur video footage of what transpired during polling.

The first video footage basically showed that there was actual polling conducted.

The second video footage, however, showed what appears to be illegal casting of votes for one particular polling booth, which is the ballot box from Kendu 1.

Essentially, the video footage is from only one ballot box.

For the other five (5) ballot boxes, NO evidence was provided hence they remain allegations of unlawful voting.

Let me state here that briefs of all the polling officials including Presiding Officers from these polling venues indicated that polling was conducted without any major incidents, except that voting commenced a bit late.

For the other three (3) ballot boxes containing ballot papers for polling places in Kapalku 1, Kapalku 2 and Ngumbkora, the dispute is in relation to change of polling venues from Singirok Army Barracks to Nondugl, Nondugl Singsing Place and at Ngumbkora.

The base for the dispute is that those polling places were not gazetted polling venues.

Observations by the State Legal Team for Jiwaka

According to observations by the State Legal Team for Jiwaka, for the first six (6) disputed ballot boxes, there is some form of evidence in the form of amateur video footage for only one ballot box, which is for Kendu 1 polling place.

For the other five (5) ballot boxes, the grounds for objection remain allegations because there is NO evidence produced to verify the allegations.

The brief reports from polling officials including presiding officials provide that there was NO major incident which contradicts the grounds raised in the objections.

The Returning Officer for North Waghi Mr. Andrew Kulangi even provided a statement basically saying that the election was a success and that reports he had received from the six (6) disputed polling venues that polling in those areas were a success.

The Law

Section 153 A(1) of the Organic Law provides that:

153 A – Excluding Ballot Box From Scrutiny

  1. Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot box containing marked ballot papers where he is of the opinion that:-
    1. The ballot papers in it were not lawfully casted; or
    2. The ballot box was tampered with and the integrity of the ballot papers in it were compromised.
  2. Where objection is taken to a ballot box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any response from a scrutineer to be in writing and for the relevant Presiding Officer and other polling officers are available at the scrutiny to comment on the objections and responses given before making a decision;
  3. A ballot box is damaged but its contents have not been disturbed is not to be rejected for reason of the damages;
  4. A decision of a Returning Office under this section may not be challenged other than by way of a petition.

Let me point out here that the Law is very clear that the Returning Office has the discretion whether to allow or disallow the scrutiny of ballot papers in a disputed ballot box after taking into consideration all available evidence and reports.

No Court Order in Place

Further to that, currently there is no Court Order sought or in place that stops the Returning Officer Andrew Kulangi or the Electoral Commission from counting any of the six (6) disputed ballot boxes for North Waghi.

A similar issue arose during counting for the Koroba-Lake Kopiago Open in Hela Province.

This means that RO Mr. Kulangi can continue to count the ballot boxes from Kerowil polling place.

Any aggrieved party has the right to file an election petition only after the declaration of the results if he is not happy with the outcome.

Present Situation in North Waghi

The situation on the ground in North Waghi now is very tense and volatile and the Returning Officer for North Waghi Andrew Kulangi has advised the Solicitor General’s Office to seek my direction as Electoral Commissioner for a decision on the disputed ballot boxes.

The decision to allow or disallow the disputed ballot boxes for counting remains the direction of the Returning Officer.

However, the Returning Office is subject to the directions of the Electoral Commissioner because the Returning Officer is ONLY exercising delegated powers of the Electoral Commissioner under section 18 and 19 of the Organic Law.

Reference Case: Supreme Court in Paias Wingti v. Kala Rawali – EP No. 55 of 2007 and SCR No. 17 of 2008 – Robert Kapoal v. Philemon Embel make the Return Officer’s powers under section 153 A of the Organic Law subject to the Electoral Commissioner’s directions.

In the present case, the evidence against the refusal of counting of all the six (6) disputed ballot boxes is not overwhelming.

There is contradicting evidence also available. There is video evidence of only one ballot box and that is for Kendu 1.

At the end of the day, it is the Electoral Commissioner and the Returning Officer’s call whether to allow or disallow the counting of the disputed ballot boxes on all available evidence and reports.

Finally, a party who is not content with the Electoral Commissioner’s decisions is at liberty to take up the matter in the Court of Disputed Returns.

Media Consultant

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