By Linny Folau

The election of Dr Pohiva Tu’i'onetoa as the Tongatapu No.10 People’s Representative to the Legislative Assembly has been declared void by a Supreme Court judge, who this afternoon found that the former Prime Minister committed bribery on one occasion, in the lead up to the November 2021 General Election.

The election petition was filed by Kelekolio Taniela Kiu a registered voter for Tongatapu 10 district, who is a farmer by profession. He also worked as town officer from 2010-16.

Kiu challenged Dr Tu'i’onetoa’s election alleging that he committed two acts of bribery in breach of section 21(1)(a) of the Electoral Act and therefore sought the court’s declaration that Tu'i’onetoa’s election is void.

Hon. Mr Justice Cooper issued a written 35-pages judgment today, after hearing evidence presented over three-days of trial on April 19-21, at the Supreme Court in Nuku'alofa.

He found that a 'tokoni' of $50,000 pa'anga made by Tevita Lavemaau (the then Minister of Finance) at a 'Niutao event' and repeated at a Lapaha event was an offer of promise on behalf of Dr Tu'i'onetoa, of a valuable gift with the intention to influence any elector to vote for him, had been proven to the requred standard of bribery.

The judge therefore declared Dr Tu'i'onetoa's election void and ordered him to pay the costs of the proceedings.

"Pursuant to section 37 of the Electoral Act 1989 I shall forthwith certify this result to the Speaker of the Legislative Assembly," stated the judgement.

In the Tongan language the word “Tokoni” means to help, assist, give a hand (ref. Churchward).

The Niutao event ran from 1-2 October 2021, which showcased the handicrafts of the Women's Association of Tongatapu 10.

Second allegation unproven

Meanwhile, on the other allegation of bribery that by constructing a wharf at Afa village on the eastern district, which is Dr Tu'i'onetoa's constituency, that he was simply buying votes and as such an act of bribery.

The judge found this allegation had not been proven to the required standard.

William Clive Edwards SC represented Dr Tu’i’onetoa. Teisa Cokanasiga represented Kiu.

Allegation

Kiu in his affidavit said that the tokoni of $50,000 was to the Women's Group of Tongatapu 10. He had seen the video footage and also been told about the event.

Paragraph 21 of Kiu's affidavit said that the giving of the $50,000 was done on behalf of Dr Tu'i'onetoa to influence voters, he stated that was so, even if the respondent claimed it was a fund or aid, said the judge.

He held the view that was wrong and it did not matter that this was done under the auspices of a donation for weaving or handicrafts.

It had been done to find favour with a large number of women from Tongatapu10 who were at the event. It may lead to economic growth, but it needed to be done at the right time, he said.

The judge said, both Dr Tu'i'onetoa and Mr Lavemaau gave evidence that the funds were there and with, what they described as the right conditions being met, the Women's Group could have had them.

He said it was also significant that this announcement was then repeated by Mr Lavemaau at Dr Tu'i'onetoa's campaign event on 28 October 2021 in Lapaha.

“In other words, the respondent (Dr Tu'i'onetoa) was aware of what was stated at the time. He never withdrew from that offer. On the contrary, he has stuck by it through to the Lapaha event and right through the whole trial. I form the clear view that in every sense, he has assented in what Mr Lavemaau announced,” said the judge.

"I find to the required standard that the petitioner has proved it was an offer, made by someone, on the respondent's behalf which he knew of and he assented in its being made."

“But an offer of what? Was it a gift, or was it a grant, as the respondent has argued? Was it significant that it was never paid?,” said the judge.

He said the evidence of a witness Mele 'Amanaki was telling.

From her experience of working in government, she knew and gave evidence that a grant had to be budgeted for.

“It had to be advertised and then Miss Amanaki's submissions received and reviewed. It was a process that took 3-6 months and could take up to a year. It meant, with all her knowledge and experience, any money announced as being available the next week was not a grant, but a gift,” said the judge.

Proven

The judge said, whether it was a grant or a gift, matters not and whether it was paid or not, equally did not matter in relation to the statutory framework.

"An offer or promise can be enough, as set out in section 21(2) and I am quite sure that  the petitioner has proved to the required standard the announcements we are concerned with amounted to just that, either an offer or a promise or both."

He then found that the petitioner had proved to the required standard there was a valuable gift given on behalf of Dr. Tu'i'onetoa.

“Was it given to induce any elector to vote for Dr Tu'i'onetoa? I have already found on the evidence before me the object of the gift, was a specific organisation, so not a general recipient but a defined group so "any elector".

“I have already mentioned that Miss Langaola Kiu was present on 1 October at Niutao and a registered voter of Tongatapu 10, she heard the announcement. This has all been proved by the petitioner,” he said.

The judge said because of the timing, these events were caught under section 21 (3) and it then fell to the respondent to prove, on the balance of probabilities, that this was not done for the purpose of influencing the vote.

"This was an exhortation to vote for Dr. Tu'ionetoa. The act of then giving $50,000 pa'anga to be distributed amongst a significant number of potential voters….not six weeks before the election then speaks for itself."

The judge said that Dr Tu'i'onetoa also had his banner at the event.

“I also bear in mind that the leaflets with his party slogan were handed out. And, that whether by design or accident, one of those leaflets with its slogan was on prominent display during a speech on the live video broadcast.

“Considering the foregoing and the whole of his evidence and more widely the evidence at large, I am quite sure that he has not demonstrated, or even tried to demonstrate that this was not done to influence the vote,” he said.

"Accordingly, I find that the tokoni of $50,000 pa'anga made by Mr Lavemaau at the Niutao event and repeated at the Lapaha event some 27-days later, was an offer or promise on behalf of Dr. Tu'i'onetoa, of a valuable gift with the intention to influence any elector to vote for him."

The judge therefore found that the petitioner had proved to the required standard that Dr. Tu'i'onetoa committed the offence of bribery, on this occasion.

Loses parliamentary seat