The Supreme Court has confirmed another conviction of former Prime Minister Pōhiva Tu’i’onetoa on three counts of bribery during last year’s election.
This means that his election as member for Tongatapu 10 remains void and a by-election will be called.
Tu’i’onetoa was previously convicted in April and his election was declared void after the Supreme Court found he offered TOP$50,000 to a women’s group as a bribe. The offer was publicly announced but the money was not paid.
That petition was brought to the court by Kelekolio Taniela Kiu, who stood unsuccessfully for the election, challenging the result and alleging that Dr. Tu’i’onetoa committed two acts of bribery.
His latest conviction was based largely on the distribution of a number of water tanks in the period immediately during the election. This petition was brought to the court by Kamipeli Lanumata, who also stood unsuccessfully for the election.
Lord Chief Justice Whitten, presiding, said Dr Tu’i’onetoa had not proved his defence that his actions in handing out water tanks was entirely innocent and simply acceding to a request from his constituents.
He said the former Prime Minister had clearly used his position to have the 50 tanks brought to his constituency for the purpose of him directly or indirectly giving the tanks out to his constituents.
The distributions all happened during 2021 with almost half of the tanks being given in the last three months, that is, the critical period pursuant to Section 21 (3), before to the election.
“In those circumstances, the inescapable conclusion is that, on the evidence, Dr Tu’i’onetoa indirectly gave a valuable gift in the form of a water tank to one Maka Fotu and his wife,” Lord Chief Justice Whitten said.
“In the absence of any evidence of any legitimate basis for the appropriation of the tanks by Dr Tu’i’onetoa for use in his own election, I can only infer that he did so to favour his own electorate. The characterisation of almost half the tanks being distributed in the three months prior to the election as being merely a coincidence cannot be accepted.
“The evidence overall is overwhelming that he used the tanks as gifts at a time when an election was looming.
“I found it troubling that, during the course of his evidence, he appeared oblivious to the fact that what he was explaining amounted prima facie to bribery for the purposes of the Electoral Act.
“In that regard, the Act does not distinguish between naivety (at the lower end of the spectrum), wilful disregard (around the middle), or conscious corruption (at the upper end) when it comes to offences of electoral bribery.”
The judge said the gift of the tank had to be deemed a bribe and the claim that it was just acceding to a request for water tanks could not be accepted.
“I find the water tank claim proven,” the judge said.
“On that finding, I am required pursuant to Sections 32 and 37 of the Electoral Act to certify that Dr Tu’i’onetoa’s election as the representative of Tongatapu 10 is void.”
