Anti-corruption crusader guilty of misconduct in office

Scandalising the Judiciary

Three allegations made against the MP accused him of ‘scandalising the judiciary’.

Firstly by posting on his Facebook account the sentence: ‘A relevant point to note is that the Chief Justice was only recently appointed by O’Neill late last year’, and thereby insinuating a conflict of interest.

Secondly, by posting the following words on Facebook accusing Peter O’Neill and his lawyers of filing a fake Warrant of Arrest to deceive and mislead the court in judicial proceedings:

“What was not anticipated was that O’Neill and his lawyers would solicit assistance from the Chief Justice and desperate enough to submit fabricated documents to mislead the Court that the Warrant was defective as a means to obtain a stay order”.

“In response the Chief Justice hand-wrote on the same letter directing the judge to attend to the matter for a temporary stay until 21st October 2019; Miviri please attend to this matter for a temporary stay until 21/10/19; following the directions issued by the CJ Miviri J vacated his earlier directions and agreed to hear O’Neill’s lawyers application at 3pm that afternoon; After hearing the application consistent with Os directions the judge granted an interim stay, restraining police from arresting and executing the warrant of arrest against 0,Neill until Monday 21st October 2019; A relevant matter to not is that the Chief Justice was only recently appointed by O’Neill last years.”

Thirdly, by publicising a complaint lodged against him by the Chief Justice, Gibbs Salika, and posting it on his Facebook account.

The Leadership Tribunal considered the three allegations together, noting that they all related to articles posted on separate dates between 2nd and 10th November 2019 and all arising from a common set of facts, namely:

“a criminal complaint laid by the leader [Bryan Kramer] against Peter O’Neill on 7 October 2019 for abuse of office for directing the payment of more than K300, 000 from the National Gaming Control Board which eventually helped his political nemesis Nixon Duban win the Madang Open Electorate under the auspices of upgrading Yagaum Lutheran Rural Hospital. Out of that transaction the Court of Disputed Returns found Duban guilty of bribery and undue influence and voided his election as member.

Following the leader’s complaint, a Warrant of Arrest was necessary to bring O’Neill for questioning by police. Police obtained from the Waigani District Court a Warrant of Arrest against O’Neill.

On 16 October 2019, before police could execute the Warrant of Arrest, O’Neill through Nivage Lawyers sought an urgent application in the National Court for orders to stay the Warrant of Arrest from being executed. The reason for the application by O’Neill was to seek Judicial Review of the decision to issue the Warrant of Arrest which was couched as constituting patent defects. The application ended up with Hon Justice Miviri twice.

On both occasions, Hon Justice Miviri fixed 21 October 2019 as the date for hearing the application inter-parte. Not satisfied with Hon Justice Miviri’s decision and fearing imminent arrest, Peter O’Neill’s lawyer wrote to the Associate to the Chief Justice Togi Maniawa seeking an urgent interim stay. That letter was forwarded to the Chief Justice. Upon receipt of that letter the Hon Chief Justice by notation on the same letter wrote the following words: “Miviri J. Please attend to this matter for a temporary stay until 21/10/19.

Following that notation Hon Justice Miviri heard the application and granted orders restraining police from executing the Warrant of Arrest pending determination of the substantive proceedings. Peter O’Neill was not arrested. On the return date police withdrew the warrant of arrest and O’Neill was not charged.”

The Tribunal concluded that Kramer was guilty on the first two allegations of scandalising the judiciary and not on the third.

In making its conclusion the Tribunal relied on the following findings.

Firstly, by publishing his Facebook articles under the title “O’Neill flees country as National Court dismisses his case preventing arrest” Kramer was distorting the facts. According to the Tribunal it was ‘far from the truth’ to allege the Court had dismissed O’Neill’s case and that there was no evidence O’Neill had even been charged with any offence. It was the police, and not the court, that later withdrew the Warrant of Arrest.

There was also no evidence, found the Tribunal, that O’Neill and his lawyers ‘solicited any assistance from the Chief Justice’. The only evidence was of a letter to the judges associate which was an entirely normal part of court process.

There was also no evidence of collusion by the Chief Justice with the law firm where the judge’s daughter worked and there was ‘no evidence of a defective or fake Warrant of Arrest as alleged’ or that the same was used by O’Neill to obtain the stay order.

There was also no direction, found the Tribunal, from the CJ to the trial judge on how to deal with the stay application. Instead the CJ merely asked Judge Miviri to ‘please attend to the matter’ of the application. It was a request not a direction, says the Tribunal, and it left it open for the judge ’to reconsider or stick to his earlier stance’.

There was ‘nothing unusual, sinister, or instructive’.

The tribunal also found, as an issue of fact, that there was ‘no evidence that O’Neill appointed the Chief Justice’, instead the appointment was made by the National Executive Council.

The Tribunal did though accept that ‘there may be a hint of a conflict of interest’ in that O’Neill was at the time the Prime Minister and therefore the Chairman of the NEC and ‘there is also the evidence that Peter O’Neill directed Tom Kulunga, then Commissioner of Police to approach Sir Gibbs Salika personally on an Arrest of the former Chief Justice Sir Salamo India.”

Nonetheless, the Tribunal found the assertion that the CJ was appointed by O’Neill, was ‘inaccurate, distorted and far from the truth’ and ‘renders any hint of a conflict of interest by the CJ nugatory’.

In Kramer’s favour, the tribunal did conclude that none of the articles published on Facebook were intended to interfere with the course of justice or lawful process of the Court, as alleged by the Ombudsman Commission. This was because, at the time of publication, the court matter was already ‘completed, dead and done’.

Nonetheless, it was the Tribunal’s conclusion that:

“Our conclusions from the series of articles and the publication of the letter by the Chief Justice by the leader is that they constituted unsubstantiated facts and unverified conclusions. The leader published them to enhance his personal interest more than for the public good as the leader asserts. The publications were also intended for the victims of his unrestrained utterances to suffer any consequence that followed.”

Did they though constitute a breach of duty as defined in S.27 of the Constitution?

According to the Tribunal, as Minister for Police at the time of his Facebook posts, Mr Kramer went ’too far’ by complaining publicly about court processes and this demeaned his office (in breach of s27(1)(b).

The Tribunal found it was ‘standing practice’ that the police and judiciary ‘work at arm’s length not attack each another’. As Minister for Police, Kramer ‘had to lead in that respect and protect that relationship’.

“The leader is deemed to have demeaned his office by publishing articles of person[al] interest in conflict with his position as Minister.”

The Tribunal also found that Kramer had breached s27(1)(c) by allowing both his personal and public integrity to be called into question by publishing comments that were neither ‘factual or fair’ and were ‘misstatements and inaccurate’.

According to the Tribunal, Kramer ‘failed to exercise restraint as a leader’, ‘let loose his self-control’, ‘allowed his personal interest to take precedence’ and ignored the ‘adverse consequences of breeding negative perception [sic] on the judiciary’ and let ‘a gullible public pass judgement’.

“The result of his conduct was that public confidence in the judiciary overall was denigrated. It gave birth to negative perception and disrespect for the judiciary leading to scandalising the judiciary, a government institution bestowed with a high degree of trust.

By his conduct in publishing factually untrue statements it allowed his public and personal integrity into question as to whether he was a leader of truth thereby demeaning his office as Minister for Police and position as a leader.”

The Tribunal also found that Kramer’s conduct constituted a breach of s27(1)(d) in that it diminished respect for and confidence in the integrity of the government (which, said the Tribunal, includes the judiciary).

“… the articles on Facebook denigrated the high respect and confidence the public has of the Judiciary. It created doubts as to whether the last bastion of hope is wrought with corruption which the judiciary is supposed to protect and defend.”

Political interference

The fourth allegation faced by Mr Kramer was that he had, as Minister for Police. interfered in police operational matters resulting in the termination of Mr Paul Nii as Director of Police Legal Services.

It was alleged this interference was as a result of Mr Nii’s giving advice against the arrest of Peter O’Neill, ‘which did not go down well’ with the Minister.

In his defence, Kramer denied any involvement or interference in the termination of Mr Nii and contended that Mr Nii had been sacked for abuse of a hire car.

The Tribunal sided with Mr Kramer on this matter and found him not guilty.

The Tribunal found that Mr Nii, who is now a serving Magistrate, was indeed terminated from the police service for his unauthorised use of a hire vehicle.

The Tribunal was also unconvinced by Mr Nii’s evidence that he was directed ‘so many times’ by the Police Commissioner, who was under pressure from Mr Kramer, to give clearance for the arrest of Peter O’Neill. The Tribunal considered ‘this piece of evidence by Mr Nii as grossly exaggerated and unsubstantiated’.

The Tribunal did find as a fact that both former Prime Minister, Peter O’Neill and Mr Kramer, as Police Minister had political interfered in the operational matters of the police force. In O’Neill’s case in relation to the arrest of the former Chief Justice Sir Salamo Inja, and in Kramer’s case in relation to the arrest of Peter O’Neill.

However, as the political interference by Kramer did not relate to the termination of Mr Nii, as alleged, he was found not guilty.

DDA Spending on Tolo Enterprises Limited

Allegations 5-12 against Mr Kramer all related to the Madang District Development Authority and Kramer’s conduct as Chair of the DDA Board.

District Development Authorities are statutory corporate bodies established to control the expenditure of funding for local infrastructure projects and service delivery as provided under District Support Grants (DSG) and the District Service Improvement Program (DSIP).

The District Administrator is automatically the Chief Executive Officer of the local DDA and its operations are governed by a Board comprising the local MP as Chair, each of the Local Level Government Presidents and three community representatives.

All financial matters of the DDA are subject to the Public Finance Management Act and financial guidelines and instructions issued by the Department of Finance.

Allegations 5 and 6 were that Mr Kramer allowed an associate company, Tolo Enterprises Limited, to benefit through providing consultancy services to the Madang DDA and he acted dishonestly in misappropriating the K455,751.20 paid to the company.

Mr Kramer did not dispute that Tolo Enterprises was engaged by the Madang DDA nor that it was paid the sum of K455,751 for its services.

He did however contend that Tolo Enterprises was not an associated company as he was neither a direct or indirect shareholder or a director. He also argued Tolo’s engagement by the DDA was approved by the DDA Board, along with four other consultancy services, that the amounts paid to the company were for services rendered and were properly acquitted and there was therefore no appropriation.

Kramer did accept that he knew the owner of Tolo Enterprises, Hitolo Carmichael Amet, but argued that was not evidence that the pair were associates within the meaning of the law. He also pointed out that he had declared his apparent conflict of interest in knowing Mrs Amet to the DDA Board and had recused himself from the meeting at which the Board agreed to engage her company.

Section 1 of the Organic Law on Duties and Responsibilities of Leadership defines an associate as ‘a member of the family or a relative, or a person associated with the leader or with a member of their family’.

The Tribunal disagreed with Kramers assertions. It found him guilty of misconduct in allowing Tolo Enterprises to benefit from consultancy services in what it described as ‘a dishonest and conflict of interest situation’ and that Kramer dishonestly misapplied more than K400,000 to the benefit of the company.

In making it’s determination the Tribunal relied on three undisputed facts. Firstly that Tolo Enterprises is a company owned by Mrs Hitolo Carmichael Amet, the wife of Sir Arnold Amet. Also that Kramer had met with the owner prior to her company’s engagement and the pair had discussed consultancy issues. Thirdly that Kramer and Sir Arnold had ‘a strong relationship’.

“They were both from Madang Province. The leader appointed Sir Arnold as community representative to the Authority Board. The leader and Sir Arnold had strong political connections. To round it all off Sir Arnold assisted the leader before this Tribunal.”

These facts, said the Tribunal could ‘not be coincidences’ and collectively showed that Tolo Enterprises was connected to Kramer via its ownership by the wife of Sir Arnold Amet and his relationship with Kramer.

The Tribunal was not impressed by Kramer’s recusal from the meeting that endorsed the engagement of Toto Enterprises, describing it as ‘only a smokescreen’ to comply with the statutory requirement to disclose his interest.

Indeed, according to the Tribunal, the declaration of interest by Kramer in the DDA Board meeting ‘further affirms the strong relationship that existed with Tolo and its owner’.

“Our conclusion is that when the leader allowed Tolo Enterprise to benefit from consultancy services in a dishonest and conflict of interest situation he was guilty of misconduct in office under s 27 (5) (b) of the Constitution.

It therefore follows that the leader dishonestly applied more than K400, 000 to the benefit of Tolo Enterprise being an associate company thereby being guilty of misconduct in office under s 13 (a) of the Organic law on Duties and Responsibilities of leadership.

“We find the leader guilty under allegations 5 & 6”

The Tribunal verdict does not however elaborate on how the conduct of Kramer was found to be ‘dishonest’ or make any finding on whether the consultancy services were provided as contracted. This stands in stark contrast, as we will see below,  to allegation 13, another charge involving misappropriation; in that case the lack of evidence of how monies were used was seen as crucial in finding the Leader not guilty.

Misuse of SIP funds to pay office rent

Allegations 7 and 8 were that Kramer misused Madang District Service Improvement Funds to pay Electoral Office rentals contrary to DSIP Fund Guidelines and misappropriated K229,500 from DSIP funds to pay rent for a Ward project office.

Although the Tribunal found as a matter of fact that there was ‘no evidence that there was an electoral office’ it did find there were electoral staff employed in the Ward project office.

The Ward project office was set up by the DDA to carry out service delivery and the DDA used DSIP funds to pay the office rental and staff wages.

Some of those staff though, according to the Tribunal were not DDA staff but electoral staff who should have been paid by Kramer from his own electoral allowances.

Because there were electoral staff paid by the DDA and they were operating from the Ward project office where the rent was paid by the DDA, the result was that ‘DSIP funds were expended for purposes for which it could not have been expended’.

“We therefore find that the leader is guilty of misconduct in office under s13 of the Organic Law”

Creating an unapproved management structure

Allegation 9 was that Mr Kramer created a structure within the Madang DDA without obtaining approval from the Department of Personnel Management as required.

The charge related to a DDA Board decision to approve a proposal from Mr Kramer to create a Ward Project Office within the Authority. The Ward Project Office had its own staff structure and operated from its own office. While the existing District Administration structure implemented sector programmes, the new structure looked after the Secretariat to the DDA Board, Special Projects and Ward Projects.

According to the evidence presented to the tribunal all payment records for the dispersal of District Service Improvement Funds from 2017-2020 were kept by the District Finance Office. The records from 2021 on were kept at the Project Office.

S.23 of the District Development Act 2014 requires that the Secretary of the Department of Personnel Management shall ‘approve a proposed staffing structure’ for each DDA.

The Tribunal found that the creation of the Ward Project Office constituted a new staffing structure that was operating without the required mandatory approval of the Secretary in Port Moresby. Any staff employed and payments made as wages were therefore ‘illegal and void’.

The Tribunal was also scathing in its assessment of the monies that were wasted in its opinion on operating two structures.

“The obvious resultant effect was that DSIP funds meant for development were expended to maintain an overloaded structure.’

Although the Tribunal acknowledged there was no criminal intent. Kramer had created an illegal structure and caused funds to be misapplied and was in breach of S27(1)(b) of the Leadership Code.

Misuse of DSIP funds to pay electoral staff

Under allegation 10, Mr Kramer was accused of misapplying K233,514 from DSIP funds to pay the salaries and wages of electoral staff. It was alleged this was in breach of DSIP guidelines and amounted to double-dipping as Kramer was also receiving an electoral allowance as part of his Parliamentary salary.

The Tribunal found that electoral officers can be employed by a DDA as staff and cannot be engaged as consultants, rather all electoral employees must be paid for by a Member of Parliament from his Parliamentary electoral allowance.

“Electoral staff are the eyes and ears of an elected leader for the district. They are employed or engaged at the discretion of the leader. Their employment or engagement is outside of the normal public service structure. Wages for an electoral officer would have to be paid from the electoral allowance of the leader as intended by the SRC determination”.

The Tribunal rejected the leaders assertion that the named staff were not his electoral officers. The Tribunal noted the staff were named as ‘electoral officers’ in the staff structure, there was no evidence that Kramer maintained a separate electoral office and no evidence any were paid from his Parliamentary allowances.

“By allowing payments to electoral officers by the Authority while the leader was receiving allowances meant for such payments amounted to double dipping on the part of the leader. By doing so the leader breached s 5(2) of the Organic Law thereby being guilty of misconduct in office.”

Employment of Mrs Amet

Allegation 11 concerned the appointment of Hitolo Carmichael Amet as head of the DDA Board secretariat while she was also a member of the Board representing the community.

The Tribunal found the allegation had no basis. The undisputed evidence was that Mrs Amet had never been appointed a member of the Board.

Kramer was found not guilty under this allegation.

Misappropriation of K15 million

The final allegation faced by Mr Kramer was the misappropriation of K15,649,312.50 of DSIP funds used to purchase plant and equipment without following procurement processes.

Specifically it was alleged that three vital documents were not annexed to the payment vouchers, namely the procurement committee decision, legal clearance from the Solicitor General and a contract.

The Tribunal found the payment of K15 million was made by the DDA to Madang Works and Equipment Limited pursuant to a court order. The Order was specific about the amount to be paid, the source of the funds and the recipient and that it should be done ‘in compliance with legislative procurement requirements’.

The Tribunal did not make any finding on whether the court legislative requirements had been followed but found as there was no documentary evidence as to how the money was spent it was unable to conclude whether the money had been misappropriated or not.

The allegation was not proved to the required standard and the leader was found not guilty.

Summary charges and verdict

Bryan Kramer was facing 13 allegations of misconduct in office. One of the allegations was withdrawn with no evidence offered. Of the remaining 12 allegations, Kramer was guilty on eight and not guilty on four. He is now awaiting his sentencing hearing.

Allegation 1. Scandalising the Judiciary by posting articles on his Facebook account and insinuating a conflict of interest by the Hon. Sir Gibbs Salika, Chief Justice of Papua New Guinea.

Guilty

Allegation 2. Scandalising the Judiciary by posting articles on his Facebook account accusing Hon Peter O’Neill and his lawyers of filing a fakeWarrant of Arrest to deceive and mislead the Court in the matter OS (JR) 720 of 2019.

Guilty

Allegation 3. Involvement and interference in police operational matters resulting in the termination of Mr Paul Nii Director Legal Services.

Not guilty

Allegation 4. Publicizing the complaint lodged against him by Hon Sir Gibbs Salika the Chief Justice of Papua New Guinea and posting it on the Facebook account.

Not guilty

Allegation 5. Allowing an associate company, namely Tolo Enterprises Ltd to benefit through consultancy services to the Madang District Development Authority

Guilty

Allegation 6. Misappropriation of K455,751.20 to the use of Tolo Enterprises Ltd a company owned by an associate

Guilty

Allegation 7. Use of Madang District Services Improvement ProgrammeFunds in Paying Electoral Office Rentals Company Contrary to SRC Determination 2015 and DSIP Funds Guidelines

Guilty

Allegation 8. Misappropriation of K229,500.00 of the District Services Improvement Program & District Support Grants on rental payment of ward project office

Guilty [note in the Tribunal’s own published verdict the finding is listed as  ‘Not Guilty’ in the conclusion on the final page which seems at odds with the earlier text]

Allegation 9. Creating a structure within the Madang DDA without obtaining approval from the Department of Personnel Management.

Guilty

Allegation 10. Misapplication of Madang DSIP funds on salaries and wages of electoral staff in the Madang District Ward Project Office contrary to the DSIP guidelines

Guilty

Allegation 11. Allowed for the appointment of Hitolo Carmichael Amet as head of the Secretariat while being a member of the board representing the community

Not Guilty

Allegation 12.

Withdrawn

Allegation 13. Misappropriation of K15, 649,312.50 of Madang DSIP funds through the Madang Works and Equipment Ltd in funding plant and equipment without following procurement processes

Not Guilty