IN THE HIGH COURT OF KIRIBATI
HCCC 30/94

IN THE MATTER OF:
The election of the Beretitenti Act and

IN THE MATTER OF:
The Elections Ordinance and

IN THE MATTER OF:
The Election for the Beretitenti of the Republic of Kiribati

BETWEEN

TEATAO TEANNAKI
Member of Parliament of and from Abaiang
Petitioner

AND

TEBURORO TITO
Member of Parliament of and from South Tarawa
and Beretitenti of the Republic of Kiribati
Respondent

Mr B Berina for the Petitioner
Mr T Teiwaki for the Respondent

JUDGMENT

Before me is an election petition praying that the election of the Beretitenti of the Republic of Kiribati held on the 30th September, 1994 be declared void upon the several grounds hereinafter mentioned.

This is the first petition in the history of the Republic of Kiribati to challenge the validity of the election of the Beretitenti.

A. THE PARTIES

The Petitioner, Teatao Teannaki, is a member of the Maneaba ni Maungatabu for the electoral district of Abaiang. He is also the former Beretitenti of the Republic of Kiribati, holding office from 4 July 1991 to 22 May 1994, when his term came to an sudden end following the dissolution of the Maneaba on 22nd May 1994. He failed to gain nomination as a candidate in the 1994 presidential election which saw the Respondent elected as the new Beretitenti. He is one of the leaders of the present opposition and he and the Respondent are strong political opponents.

The Respondent, Teburoro Tito, is the current Beretitenti of the Republic of Kiribati. He is also a member of the Maneaba ni Maungatabu for the electoral district of Tarawa Teinainano. He has been a member for that district since 1987, in which year he unsuccessfully contested the presidential election. He was instrumental in the dissolution which brought the government of the Petitioner to an end.

The voting in the presidential election held on the 30th September 1994 appeared to reflect the will of the people quite resoundingly, leaving the Respondent a clear winner by an absolute majority. This is the way the voting went:

Roniti Teiwaki	3,387	
Taberannang Timeon	3,080	
Teburoro Tito	10,834	
Tewareka Tentoa	3,886	

B. THE PETITION

In his petition, the Petitioner prays for the following relief:

1. A declaration that the election of the Respondent is void.

2. An order disqualifying the Respondent from standing as candidate for a fresh election following these proceedings

3. A declaration that the election was void.

4. Costs

5. Such further or other relief as the Court seems just".

The grounds relied upon concern three alleged incidents of bribery and one of treating and are set out in paragraph 5, 6, 7 and 9 of the petition. Two other grounds were abandoned at the start of the hearing.

The grounds relied upon are as follows:

"5. In or about January 1994, the Respondent went to the maneaba of the people of N. Wirara group and promised to provide them with the clock for their maneaba for the purpose of corruptly influencing those people to vote for him during the election. The Respondent subsequently did provide the clock for the maneaba for the purpose of corruptly influencing those people who belong to the maneaba to vote for him during the election.

6. On or about 26 August 1994 the Respondent provided free drinks to the people present at Bairiki Club at Bairiki for the purpose of corruptly influencing those people to vote for him during the election.

7. Between 30 August 1994 and 29 September 1994 the Respondent went uninvited to various "maneabas" on each island he visited campaigning for the election and in each maneaba he visited he provided free tobacco to those present in the maneabas for the purpose of corruptly influencing those people to vote for him during the election. The islands in particular are Abaiang, Maiana, and Beru.

9. In or around September 1994 the Respondent provided free passage on "Teitinraoi" to four men from Temotu village of Marakei electoral district to travel from Marakei to Tarawa for the purpose of corruptly influencing those people to vote for him during the election".

C. THE DEFENCE

The Respondent in the following paragraphs of his Statement of Defence denies the Petitioner's allegations.

"3. As to paragraph 5 of the petition it is admitted that on the date alleged the Respondent did provide a clock to the people of N. Wirara group but it is denied that the same was done for the purpose of corruptly influencing those people to vote for him during the election. The respondent did provide the clock because he was requested to do so by the said group during his first visit to the said group's new maneaba.

4. Further, or in the alternative the respondent was on the date alleged a sitting member of Parliament from the area in which Teaoraereke or the group mentioned in paragraph 5 of the petition was situated and as such he was obliged to benefit them.

5. Paragraph 6 of the petition is denied. The Respondent says that on the date alleged he was celebrating the end of the hearing of another case brought by the petitioner against him and that the people he provided drinks to were his supporters and those club friends who came to join who on earlier occasions had provided drinks to him.

6. As to paragraph 7 of the petition the Respondent admits that he went to various "maneabas" on each islands that he visited whilst campaigning for the election but it is denied that he went to such "maneabas" uninvited. The Respondent went to these maneabas after he had sought and was granted permission to these maneabas

7. Further it is admitted that on each such visit the Respondent provided either half a block or a block of tobacco to each maneaba but it is denied that this was done to corruptly influence the people present to vote for him during the election.

8. Further or in the alternative the Respondent says that he provided the said tobacco to fulfil his customary obligations as a visitor to the said maneabas and the people receiving it acknowledged it as such.

11. Paragraph 9 of the petition is denied. The Respondent says that he was requested by one man from Temotu while visiting Temotu village to assist him and his wife in their travel to Tarawa for some urgent business. The Respondent obliged by offering his seat on Teitinraoi which came after he had left Marakei.

13. In the premises the Respondent states that he has not committed any corrupt or illegal practice.

In addition, the Respondent argues a point of law. Further reference will be made to this in due course.

D. LOCUS STANDI OF THE PETITIONER

In Kiribati, the Beretitenti (the President of the Republic of Kiribati) is the Head of State and the Head of Government. He is elected by the nation after the Maneaba ni Maungatabu (National Parliament) has nominated from among its members not less than three nor more than four candidates for election as Beretitenti.

Section 32 of the Constitution provides for the election of the Beretitenti in the following terms:

"32. (1) Nomination for and an election to the office of Beretitenti shall be held in such manner as is prescribed by this section and, subject thereto, by or under law -

(a) as soon as practicable after the first sitting of the Maneaba ni Maungatabu following a general election and before proceeding on any Bill;

(b) in the circumstances specified in section 35(4) of this Constitution.

(2) The maneaba shall after the election of the Speaker nominate, from among members of the Maneaba, not less than 3 nor more than 4 candidates for election as Beretitenti, and no other person maybe a candidate.

(3) Every person who is entitled to vote in a general election shall be entitled to vote in an election of Beretitenti.

(4) A person elected to the office of Beretitenti under this section shall assume that office on the day upon which he is declared elected.

(5) A person may assume office as Beretitenti after election on not more than 3 occasions:

Provided that a person who assumes office as Beretitenti under section 35(2) of this Constitution may assume office as Beretitenti on not more than 2 subsequent occasions."

The procedure for the nomination and selection of candidates for election as Beretitenti is governed by sections 5 and b of the Election of the Beretitenti Act Cap. 29A. Those sections read:

"5. At a meeting of the Maneaba ni Maungatabu at which candidates for election as Beretitenti are to be nominated in accordance with section 32(2) of the Constitution:

(a) the Speaker shall call for the names of members qualified and willing to stand for nomination; and

(b) if, at the end of the period allowed by the Speaker for names to be given, less than 3 names have been given, the Speaker shall extend this period for such period as he thinks proper until at least 3 names have been given; and

(c) if, at the end of the period or extended period referred to in paragraph (b) the names of only 3 or 4 members qualified and willing to stand have been given, the Speaker shall declare them to be the candidates nominated by the Maneaba for the purposes of section 32(2) of the Constitution; and

(d) if, at the end of the period or extended period referred to in paragraph (b), the names of more than 4 members qualified and willing to stand have been given, an election shall be held by the Maneaba, in accordance with section 6, to select 4 candidates

6. (1) At an election referred to in section 5(d), the provisions of this section apply.

(2) The method of voting shall be by secret ballot.

(3) Each member shall cast 4 votes in order of preference, and a member who is in the ballot may vote for himself.

(4) Any dispute arising out of or in connection with the election shall be determined by the Speaker, whose decision is final.

(5) When voting has been completed points shall be awarded by the Speaker to each member in the ballot, in the following manner:

(a) 4 points in respect of each 1st preference vote cast for him; and

(b) 3 points in respect of each 2nd preference vote cast for him; and

(c) 2 points in respect of each 3rd preference vote cast for him; and

(d) 1 point in respect of each 4th preference vote cast for him.

(6) The Speaker shall then add, or cause to be added, the points awarded to each member in the ballot, and shall declare, in alphabetical order, the 4 members with the greatest number of points to be duly nominated.

(7) If an equality of points is found to exist between any of the members in the ballot, the Speaker shall order any further ballot that he thinks necessary, and the procedure at any further ballot shall be in accordance with this section".

In the 1994 presidential election four candidates were nominated. They were Roniti Teiwaki, Taberannang Timeon, Tewareka Tentoa and Teburoro Tito.

The Petitioner, who was not a candidate, claims the right to bring this petition as a person who was entitled to vote in the election of the Beretitenti pursuant to section 32(3) of the Constitution (Supra).

Section 38 of the Constitution makes provision for any question going to the validity of the election of the Beretitenti to be referred to, and determined by, the Chief Justice. Section 38 is in these terms:

"38. (1) The Chief justice shall have superintendence over elections to the office of Beretitenti, which elections shall be conducted by the Electoral Commission.

(2) any question which may arise as to whether -

(a) any provision of this Constitution or any law relating to the election of a Beretitenti under section 32 of this Constitution has been complied with; or

(b) any person has been validly elected under that section,

shall be referred to and determined by the Chief justice whose decision shall not be questioned in any court".

The section does not, however, make any mention of who is entitled to refer such a question to the Chief Justice. In contrast, where the validity of the election of an ordinary member of parliament is questioned, section 60 of the Constitution provides that an application to the High Court for determination of that question may be made by a voter, another candidate, or by the Attorney-General.

"60. (1) The High Court shall have jurisdiction to hear and determine any question whether-

(a) any person has been validly elected as a member of the maneaba ni Maungatabu; or

(b) any elected member of the Maneaba has vacated his seat therein or is required by virtue of section 58 of this Constitution to cease to perform his functions as a member.

(2) An application to the High Court for the determination of –

(a) any question under paragraph (a) of the preceding subsection maybe made by any person entitled to vote in the electoral district, and at the election, to which the application relates or by any person who was a candidate in that district at that election or by the Attorney-General;

(b) any question under paragraph (b) of the preceding subsection may be made by any person entitled to vote at an election in the electoral district for which the member concerned was returned or by any elected member of the Maneaba or by the Attorney-General:

Provided that if such an application is made by a person other than the Attorney-General, the Attorney-General may intervene and may then appear or be represented in the proceedings.

(3) The Maneaba may make provision with respect to –

(a) the circumstances and manner in which and the imposition of conditions upon which any application may be made to the High Court for the determination of any question under subsection (1) of this section; and

(b) the powers, practice and procedure of the High Court in relation to any such application.

(4) No appeal shall lie from any decision of the High Court in proceedings under subsection (1) of this section":

Sections 34 to 37 of the Elections Ordinance Cap. 29B provide for questions relating to the election of an ordinary member of parliament to be referred to the High Court by the presentation of an election petition. The procedure laid down in those provisions has been adapted by the Election of Beretitenti Act Cap. 29A so as to apply to questions relating to the election of the Beretitenti. As will be seen, when this procedure is applied mutatis mutandis it becomes clear that an elector such as the Petitioner has the locus standi to refer any such question to the Chief justice by way of an election petition.

Sections 34 to 37 provide as follows:

"34. (1)All questions which may arise from any election as to the right of any person to be or remain an elected member of the Maneaba ni Maungatabu, or, as the case maybe, of a council, shall be referred to and determined by the Court-

(a) In the case of a question relating to the Maneaba - on application in accordance with section 60 of the Constitution; and

(b) in the case of a question relating to a council - on application by the Attorney-General or an elector,

in accordance with the procedure prescribed by sections 35 and 36 for the presentation and hearing of an election petition, and the decision of the Court on any such petition shall be final and shall not be questioned in any other proceedings.

(2) Where the question to be decided concerns the right of any person to remain a member of the Maneaba ni Maungatabu or of a council, as the case maybe, the Court shall certify its decision in writing to the Chief Electoral Officer, and where the Court has decided that any person is not entitled to remain a member such person shall thereupon cease to be a member.

35. For the purposes of section 60 of the Constitution and of section 35, an election petition may, within 1 month after the date of publication of the result of the election, be presented to the Court-

(a) in the case of an election of a member of the Maneaba ni Maungatabu - in accordance with section 60 of the Constitution; and

(b) in the case of an election of a member of a council by-

(i) a person who had a right to vote at the election; or

(ii) a person who claims to have had a right to be returned or elected at the election; or

(iii) a person who claims that he was a candidate at the election.

36. (1) Every election petition shall be heard by the Court in open court.

(2) During such hearing the Court may order-

(a) the opening of any sealed packet of counterfoils of used ballot papers; or

(b) the inspection of any counted ballot papers; or

(c) the inspection and production of tendered ballot papers and the tendered votes list; or

(d) the inspection and production of any rejected ballot papers:

Provided that in making and carrying into effect the order care shall be taken that the way in which the vote of any particular elector has been given shall not be disclosed until it has been proved that his vote was given and the vote has been declared by the Court to be invalid.

(3) At the conclusion of the hearing, the Court shall determine whether the member whose return or election is complained of, or any other and what person, was duly returned or elected, or whether the election was void, and shall certify such determination to the Electoral Commission, in the case of a petition relating to the Maneaba ni Maungatabu, or to the Chief Electoral Officer, in the case of a petition relating to a council, and, upon such certificate being given, such determination shall be final and shall not be questioned in any proceedings; and the election shall be confirmed, or a new election shall be held, as the case may require, in accordance with such certificate:

Provided that where the Court finds that any candidate who has been declared to be elected was not qualified or was disqualified at the time of his election, the Court shall determine the election to be void.

37. Subject to this Ordinance, and without prejudice to any power to make rules under the Constitution, the Chief justice may from time to time make rules for regulating the practice and procedure to be observed in relation to election petitions, and subject to such rules the procedure at the hearing of an election petition shall, as near as circumstances will admit, be the same, and the Court shall have the same powers, jurisdiction, and authority, as if the Court were hearing a civil action; and witnesses may be subpoenaed and sworn in the same manner, as near as circumstances will admit, as in the hearing of a civil action in the Court, and shall be subject to the same penalties for perjury."

S. 16 of the Election of Beretitenti Act adopts the provisions of the whole of Part III of the Elections Ordinance (sections 19 to 37) to apply mutatis mutandis to an election of the Beretitenti. Part III is concerned with electoral offences.

Section 16 is in these terms:

"16. (1) The provisions of Part III and section 38 of the Elections Ordinance shall apply, mutatis mutandis, to an election of the Beretitenti under this Act save that in the said section 38 for the words "Chief Electoral Officer" wherever they occur there shall be substituted "the Electoral Commission":

(2) Regulations 28 to 31 inclusive of the regulations shall apply, mutatis mutandis, to an election of the Beretitenti under this Act save that in regulation 28 for the words "an order of the Court" there shall be substituted "the Chief Justice":"

With the necessary changes being made, sections 34 and 35 would read as follows:

"34. All questions which may arise from any election of the Beretitenti as to the right of any person to be Beretitenti shall be referred to and determined by the Chief Justice in accordance with the procedure prescribed by sections 35 and 36 for the presentation and hearing of an election petition, and the decision of the Chief justice shall be final and shall not be questioned In any other proceedings.

35. For the purposes of section 38 of the Constitution and of section 34, an election petition may, within 1 month after the date of publication of the result of the election, be presented to the Chief justice by-

(i) a person who has the right to. vote at the election; or

(ii) a person who claims to have had a right to be returned or elected at the election; or

(iii) a person who claims that he was a candidate at the election".

Sections 34 and 35 thus adapted give the Petitioner, as a voter, the right to question the validity of the election of the Beretitenti by the presentation of an election petition.

E. ELECTION OFFENCES

As already mentioned, Part III of the Election Ordinance, containing sections 19 to 37, applies mutatis mutandis to an election of the Beretitenti and is concerned with election offences.

Section 19 provides that an election may be avoided either for corruption on the part of the candidate or for general corruption.

Section 19 reads:

"19. (1) No election shall be valid if any corrupt or illegal practice is committed in connection therewith by the candidate elected.

(2) Where on an election petition it is shown that corrupt or illegal practices or illegal payments committed or made in reference to the election for the purpose of promoting or procuring the election of any person thereat have so extensively prevailed that they may be reasonably supported to have affected the result, the Court may declare his election, if he has been elected, to be void and he shall be incapable of being elected to fill the vacancy for which the election was held."

By virtue of section 23, a person who is guilty of bribery is guilty of a corrupt practice.

Section 23 provides:

"23. Every person who is guilty of bribery, treating or undue influence shall be guilty of a corrupt practice and shall be liable on conviction to a fine of $100 and to imprisonment for 6 months":

Section 24 defines the persons deemed to be guilty of bribery within the meaning of Part III. For the present purposes, subsection (a) is the relevant provision.

Section 24 (a) is in the following terms:-

"24. The following persons shall be deemed to be guilty of bribery within the meaning of this Part-

(a) Every person who directly or indirectly, by himself or by any other person on his behalf, gives, lends, or agrees to give or lend, or offers, promises, or promises to procure or to endeavour to procure any money or valuable consideration to or for any elector or to or for any person on behalf of any elector, or to or for any other person, in order to induce such elector to vote or refrain from voting, or corruptly does any such act as aforesaid on account of any elector having voted or refrained from voting at any election":

F. MENS REA

It can be seen that in subsection (a) of section 24 the word "corruptly" has not been used for any of the specified acts done before the voting, whereas any such act done after the voting is required to have been done "corruptly" to constitute bribery. This is because, in the former case, the very proof of the act itself allows the court to draw a prima facie reasonable inference that it was done with a corrupt intention.

Mr Baron Fitzgerald in the Borough of Limerick Case (1869) 1 O'Malley & Hardcastle 260 dealt with a similar statutory provision as follows:

"I am satisfied that where in the formal part of the 2nd section of the Corrupt Practices Act reference is made to offers and promises made before the vote is given, the legislature clearly intended the court to draw a prima facie reasonable inference from the act done as to the purpose for which it was done, leaving to the other side to rebut that inference if they could. Every forbidden act done for the purpose mentioned in this Act is to be regarded as done for a corrupt purpose, and once shown that a forbidden act is done for any of the purposes mentioned in the A ct it immediately becomes a corrupt act, though it would otherwise have been a purely innocent one; that is to say, in some cases the act itself affords ground for reasonable inference of the intention with which the act is done, and there the legislature has not introduced the word "corrupt"; and if the act is simply proved to be done, the Court is allowed to draw from it the ordinary reasonable inference prima facie that it was done for a corrupt purpose. But there are other cases in which the legislature, for some reason or other, appears to have thought the inference not so strong and in these cases it introduces the word "corruptly" for the purpose of showing that it did not intend the ordinary inference of intention to be relied upon ....... so here, where the legislature has not introduced the word "corruptly" ; and the actual and reasonable inference from the act is that it was an act done for the purpose contemplated, the legislature has treated it as corrupt without mentioning anything more about it. But in those cases in which it seems to have been intended that the Court should not infer the purpose simply and solely from the act, it has introduced the word "corruptly". The whole proof of corruption, as it appears to me, consists in showing that the forbidden act is done for a purpose not innocent according to the A ct of Parliament":

Applied to the present case, if it were to be proved that the Respondent gave tobacco to induce an elector to vote or refrain from voting, the court would be entitled to draw a prima facie inference that he did so with a corrupt intention, even though the word "corruptly" has not been used, and if he failed to rebut that inference then the petitioner would be entitled to succeed.

Although "corruptly" is not defined in the Elections Ordinance the following definitions make the meaning clear.

"Corruptly" imports intention; it does not mean wickedly, immorally or dishonestly or anything of that sort, but doing something knowing that it is wrong, and doing it with the object and intention of doing that thing which the statute intended to forbid." (Halsbury's Laws of England, Fourth Edition, paragraph 768).

Blackburn J. explained the meaning of "corruptly" in his decision in the County of Norfolk (Northern Division) Case, Colman v. Walpole and Lacon (1869) 1 O'M & H 236; 21 LT 264 in this way: "Then comes the section which governs the matter, and which we have to consider, and that is the 4th section, which says "every candidate at an election who shall corruptly". Now I may stop at that and say that I believe all the judges have considered that the word "corruptly" governs the whole, and that that means, with the object and intention of doing that thing which the statute intended to forbid. What that is I will see presently. It does not mean corrupt in the sense that you may look upon a man as a knave or a villain, but that it is to be shown that he was meaning to do that thing which the statute forbids".

What must be considered therefore is the Respondent's state of mind, that is, did he provide the tobacco for the purpose of corruptly influencing people to vote for him or was his intention merely to comply with Kiribati custom? If the former intention is proved then the Respondent will be guilty of the corrupt practice of bribery and his election will be avoided. If not proved, then the Respondent will be declared to have been duly elected.

The Respondent has never denied providing tobacco to the maneabas concerned, but he does deny that he went uninvited to those maneabas or that he gave the tobacco for the purpose of corruptly influencing the people to vote for him. His case is that his only purpose was to comply with the Kiribati custom known as "mweaka" which requires a visitor to a maneaba to make a presentation, the customary form of which is tobacco, in order to obtain the blessing of the maneaba. So that there would be no misunderstanding as to his :intention, he explained to the people in each maneaba he visited that his mweaka was presented in accordance with custom and was not meant to influence their vote in the election.

G. THE BURDEN AND STANDARD OF PROOF

Before going on to deal with the evidence I remind myself that the .onus is upon the Petitioner to prove his case according to the civil standard of proof, that is, on the balance of probabilities. Section 37 of the Elections Ordinance (set out above) provides that the procedure at the hearing of an election petition shall be, as nearly as possible, the same as for a civil action. The Kiribati Court of Appeal in the following passage from its judgment in Teiraoi Tetabea and Rutiano Benetito v. Kabwebwenibeia Yee-On and 10 Others (Civil Appeal No. 2 of 1988) makes it clear that this means that the civil standard of proof is to apply.

"On the hearing of an election petition, on the other hand, the procedure is as nearly as possible the same as that of an ordinary civil action, and the matters in issue need be proved only according to the civil standard, on the balance of probabilities. Evidence which would be sufficient to justify a finding by a judge hearing an election petition that a candidate had committed bribery would not necessarily be sufficient to support a conviction in criminal proceedings The fact that on the hearing of an election petition a finding had been made that a candidate had been guilty of bribery would not have any relevance in criminal proceedings brought against that candidate in respect of the alleged bribery".

H. (1) THE EVIDENCE

The hearing of the petition occupied 22 hearing days during which 36 witnesses gave evidence, 17 for the Petitioner and 19 for the Respondent.

As it turns out, the only grounds of any substance are those contained in paragraph 7 of the petition.

The allegation of treating contained in paragraph 6 of the petition, that is, that the Respondent provided free drinks to people at the Bairiki Club, is not supported by any evidence at all, and accordingly I find that such allegation has not been proved.

The Petitioner also failed to produce any evidence to support the allegation contained in paragraph 5 of the petition that in January 1994 the Respondent provided a clock for the maneaba of the people of the N. Wirara group. The Respondent was cross-examined on it, however and he gave an explanation along the same lines as that contained in paragraphs 3 and 4 of his statement of defence. l would not be entitled simply on that explanation to draw the inference that the Respondent provided the clock for the purpose of corruptly influencing those people to vote for him. He was entitled to benefit his electorate. Moreover, the gift of the clock took place in January 1994, some 9 months before the presidential election. At such time the Respondent had not even been returned as a member of the Maneaba ni Maungatabu let alone been nominated as a candidate for the presidency. I therefore consider the Petitioner's claim that the Respondent was acting corruptly with the presidential election in mind to be highly improbable. I find that this ground has also not been proved.

Similarly, no evidence was called by the Petitioner to prove the allegation contained in paragraph 9 of his petition that the Respondent provided free passage on a boat to four men on Marakei. In cross-examination the Respondent repeated what he had said in paragraph 11 of his statement of defence, that is, that he was approached not by four men but by only one man who told him that he and his wife needed to travel to Tarawa on urgent business and asked if they could accompany him on his boat. The Respondent explained that he saw the man was in need of help and as a human being he felt he had to agree. As it happened, the Respondent was able to leave by an earlier boat and did not find out until some time later that the man had managed to catch the later boat. That is where the evidence rests in regard to this allegation and in my view it falls a long way short of establishing on the balance of probabilities that the Respondent's motive was to corruptly influence the man and his wife to vote for him. This allegation then is also rejected as not proved.

That leaves to be considered only the grounds relied upon by the Petitioner in paragraph 7 of his petition which alleges:

"7. Between 30 August 1994 and 29 September 1994 the Respondent went uninvited to various "maneabas" on each island he visited campaigning for the election and in each maneaba he visited he provided free tobacco to those present in the maneabas for the purpose of corruptly influencing those people to vote for him during the election. The islands in particular are Abaiang, Maiana, and Beru".

I now turn to consider the evidence of both parties relating to those grounds. What follows is a summary of that evidence.

H. (2) THE PETITIONER'S EVIDENCE

(PW = Petitioner's witness, RW = Respondent's witness)

PW 1 Teatao Teannaki - PETITIONER, Age 58

Member of Parliament for Abaiang.

The Petitioner gave evidence that he is familiar with the custom of giving tobacco on his island of Abaiang. On Abaiang it is called MWEAKA. It is given to a shrine or to the ghosts (spirits) of that shrine. Those looking after the shrine accept the gift. The purpose is to give into the ghost of that place so that it will bring you luck.

In Abaiang there are three shrines, where mweaka is given.

If mweaka is given to the shrine of Beia n Takae at Ribono village then it is not necessary to give mweaka at the other two shrines. Alternatively, if you do not go to Ribono you can pay mweaka at the shrine of ARAURI at Takarano village, or at the shrine of NIKUAO at Tabontebike village.

Nowadays mweaka is given in the form of tobacco. There is no prescribed amount. The practice is to give half a stick or even one stick.

If you do not give tobacco to one of those shrines then the belief is that the spirit of the shrine will impose bad luck on you.

Those expected to give mweaka to the shrines are visitors to the island for the first time. A visitor gives mweaka only once and is not expected to pay mweaka if he visits again.

The giving of tobacco in a maneaba is not called mweaka, it is called a gift in the course of meeting those in the maneaba. A visitor, if invited, can give this gift, but not if he is uninvited. There is no penalty if a gift is not given.

The Petitioner gave some examples of people visiting a maneaba without giving mweaka. A lady named Teborenga, acting manager of a seaweed company visited the village of Borotiam at the end of 1993 or beginning of 1994 to promote the production of seaweed. She did not give a mweaka in the maneaba.

Another lady, acting manager of the Outer Islands Project, also visited a maneaba on Abaiang and did not give mweaka.

Even the Respondent visited a maneaba in Abaiang on 29 July 1994 for a court case and did not give mweaka, even though members of the old men's association were present.

The Petitioner claimed that the Respondent is no stranger to Abaiang. He attended secondary school there for 3 years and thereafter frequently visited Abaiang. In 1984 he visited for a soccer tournament. Some time in 1990 or 1991 he went with a team to the village of Taburao. Another time he opened a soccer field in the village of Tuarabu. So he is no stranger to Abaiang, and according to custom is not a visitor.

The Petitioner said that elders responsible for shrines have made him aware of the custom. Also, in the village he comes from, there is a shrine cared for by two families, one of which is his own.

When cross-examined, he agreed that the Respondent came to Abaiang on 29 July 1994 to give evidence at a court case, and was later joined as a party. He nevertheless expected him to give tobacco, because he had been doing it in other maneabas. The present Vice-president had presented tobacco to the old men in the maneaba who were members of the old men's association called Ueen Abaiang.

He also agreed that he was not present at any of the maneabas visited by the Respondent on his tour of the islands.

He denied that in the presidential election campaign of 1991, following which he was elected President, he gave 3 blocks of tobacco at the village of Tabiang on Abemama, but he agreed he gave tobacco in some maneabas for the purpose of wanting to visit the maneaba concerned. This is not obligatory, it is optional.

He further agreed that when he was in government he sometimes visited maneabas in the outer islands and gave tobacco to the people there. The tobacco was provided by the Government if it was a Government tour. He conceded that "for various reasons" the giving of tobacco in maneabas is recognised by the Government, one reason being that the people of the island come to a meeting organised by the Government. The Government is obliged to do that, but a person travelling alone is not, especially if he is campaigning.

He agreed that he had visited Abaiang when he was President and had given tobacco in various maneabas. He did so because he was invited and saw it as his duty as President.

He said that tobacco is precious and that even 1/4 inch would influence people. He agreed that the value of one inch of tobacco was only 10 or 15 cents.

PW2 Kaiaua Namauna, 68, Tebunginako, Abaiang

He is Chairman of old men's association called Ueen Abalang.

He said that one of presidential candidates, Roniti, visited, the council maneaba at Taburao, Abaiang and did not give any tobacco. This fact did not give rise to any discussion amongst the old men present.

Another candidate, Tewareka gave a block of tobacco.

He met another candidate, Taberannang, at a maneaba at Tabontebike village and he gave nothing. Again, the matter was not discussed.

The witness grew up in Abaiang and was taught custom by the elders. The purpose of mweaka is that it is for the ghosts.

If tobacco is given in the maneaba it is not mweaka but a gift. A person is not expected to give mweaka inside the maneaba.

As regards the gathering in Taburao in July last year he said it was not a meeting of the unimane but was for a court case held inside the council maneaba, and he was there with many old men. He saw the Respondent there and the Respondent did not give tobacco, but they did not expect him to give anything to them because they were merely spectators at the court case.

In cross-examination he agreed that when the candidate Tewareka gave a block of tobacco, it was received by the old men of the Ueen Abalang Association, of which he is one. It was not customary but a person may do so if he wishes, and they accepted the tobacco.

He denied being a supporter of the Petitioner, the former President. He also denied being related to him, but later admitted that he has a brother who was adopted by the Petitioner's uncle.

PW3 Tekateke Makiakia, 52, of Borotiam, Abaiang

He testified that the Respondent came to the maneaba Tabakea in the village of Borotiam. More than 30 people were present, almost all of them adults.

He saw the Respondent present 18 sticks of tobacco to an old man named Kobeaia, saying that it was his gift for permission to enter the maneaba. He then went on to say that he wanted to be elected president.

The witness was given the tobacco to share amongst those present in the maneaba. His share was half a stick.

He said that he had been called to the maneaba to listen to Respondent but was unable to say whether Respondent had been invited or not.

The other 3 presidential candidates visited maneabas in Borotiam but none of them gave tobacco, and the failure to do so did not spark any discussion. This is because the giving of tobacco in the maneaba in Borotiam is not expected.

When cross-examined he agreed that Respondent was in fact a visitor to his village.

He could not recall Respondent telling those present that he was giving the tobacco in accordance with custom, nor could he recall Respondent saying that they should not be influenced by the tobacco.

He did recall, however, that Respondent had been there once before campaigning for the presidency. This was in 1987, and on that visit Respondent had given tobacco and he agreed that Respondent had mentioned that it was part of the custom. He also agreed that his share of the tobacco was only about 3 inches long valued at about 30 cents.

Contrary to what he had said in examination-in-chief he was prepared to accept that when the candidate Tewareka visited the maneaba where the council was having its meeting he did give tobacco.

PW4 Tabuna Burataake, 46, Ribono, Abaiang

He testified that before the Respondent visited his village, two of the other candidates - Roniti and Taberannang - had visited the village maneaba at Ribono and neither of them had presented any tobacco.

He said that the Respondent visited the village maneaba, Tekabaranuea roughly a week before the election. There were more than 40 people present, all adults. The Respondent gave one block of tobacco to Tiwai, who was the designated person responsible for receiving gifts of tobacco. He cannot remember the exact words used by Respondent, but he said words to the effect that it was his gift.

When a block of tobacco is cut up there are about 34 sticks about the length of his left hand (approximately 8 inches). The share he received was 3/4 of a stick which he estimated was about the length of his left index finger. (Clearly if his share was that length then it would have been something less than 3/4 of stick).

A stick of tobacco and a block of tobacco were produced without objection. A block weighs 500 grams, measures 71/2" (19.5 cm) x 7" (17.75 cm) and is 1/2" (1.25 cm) deep. A stick is 7" (18 cm) long, 1/2" (1.25 cm) wide, and 1/4" (6 mm) deep.

He said that there is a shrine at Ribono is called Beia n Takae, the name of the spirit, and that visitors should leave a mweaka there. 1, 2 or 3 sticks would suffice.

He said that the Respondent had visited Ribono on three prior occasions, twice to the village maneaba and once to the church maneaba.

He said that he had not been expecting the Respondent to give any tobacco. When the Respondent produced the tobacco he mentioned that he was one of the candidates.

When he received his share of the tobacco he was happy with the Respondent, and also felt indebted to him.

When cross-examined he agreed that on the two prior occasions the Respondent had visited the village maneaba, he had seen him give tobacco on one of those occasions and, although not seeing him the other time, had received some tobacco after his visit.

PW5 Mamauri Taketi, 76, of Ubanteman, Abaiang

He gave evidence that he saw the Respondent in his village prior to the election. He did not know the Respondent was coming until some other old men in a car arrived and told him that a meeting had been arranged with the Respondent at the village of Takarano. It was getting late, so he decided that they would wait for Respondent in Ubanteman.

He and the other old men waited for the -Respondent outside the maneaba. The other old men were from Tabontebike, a village at the southern tip of the island. There were about ten old men present.

There is no village maneaba in Ubanteman so the Catholic Church maneaba is used instead. This is the only maneaba in Ubanteman.

Apart from the old men, other people from the village were present in the maneaba.

The Respondent entered the maneaba and when they were all seated, the Respondent stood up and thanked them for coming at his humble invitation. He said he had brought something with him and asked that someone accept it. The old men accepted it and saw that it was tobacco.

The Respondent then explained the purpose of his visit, which was that he wanted to become President.

The tobacco was later shared among the old men. He received more than two sticks, almost three. The men from the village present in the maneaba were angry that they did not receive a share. He thought the old men were mistaken in thinking that the tobacco was for them only.

He appreciated the tobacco from Respondent and felt indebted to him.

He said that the giving of gifts inside the Catholic maneaba is a common thing, as it is the only maneaba. Visitors are expected to give gifts when they visit the maneaba. It is something which is done, but which is not obligatory. If a visitor did not give a gift there would be no penalty and people would not talk unkindly about him.

When cross-examined he admitted that his memory is not good and that he does not recall all of what the Respondent said in the maneaba.

However, he does not recall Respondent saying that the tobacco was his mweaka according to custom, or that it should not influence people to vote for him.

He conceded that it is customary for a visitor to the maneaba to present a gift, but if a person is not invited but comes of his own accord then a gift is optional. If the people of the village invited someone to visit their maneaba and he brings a block of tobacco to present to the old men, that is quite acceptable and is within the framework of custom. If the guest does not bring a gift he would be regarded according to custom as a poor man. He could be referred to as a person who does not know the custom of Kiribati. It would therefore be safer for a guest to bring a gift. If, for example, he himself travelled to Tarawa and was invited by the old men there to the maneaba as a guest, he would bring a gift. It is the custom for a person to bring a gift if he intends to visit a certain place.

PW6 Tekambo Toauru, age 63 of Koinawa, Abaiang

He testified that he is a member of the old men's association in Abaiang called Ueen Abaiang and was one of the old men who saw the Respondent at Ubanteman in the Catholic Church maneaba.

When the Respondent came into the maneaba he said that he had brought something with him and he asked one of them to receive it. An old man stood up to receive it and when it was opened he saw it was tobacco. The Respondent mentioned to the old man that it was his gift. He did not use the word "mweaka". The Respondent said: "I am one of those who want to work for our country Kiribati". He did not hear him say anything else. His share was more than two sticks. He had not expected to receive any tobacco.

Two days later the Respondent came to his village of Koinawa and he met the Respondent in the village maneaba called Teatunuea. There were about six people present. He was the only old man, some were in their 40s and no one was younger than 20. The Respondent brought tobacco which he said was mweaka and presented it to him. The tobacco was shared and he received 11/2 sticks. He was very happy at receiving the tobacco and felt indebted to Respondent.

He said that the giving of things inside the maneaba is the normal thing if the person is invited, but the Respondent was not invited.

If a visitor chooses not to give anything, there is no penalty attached and they would not say nasty things about him.

When cross-examined he agreed that the Respondent had sent a message that he was coming, and that he was not only agreeable to the Respondent coming to their maneaba but in fact he was the one who requested the Respondent to come into the maneaba. However, he resisted the suggestion that Respondent was invited and maintained that it was the Respondent who had invited them to meet with him. He conceded though that Respondent did not enter the maneaba uninvited but was asked to come in. He also conceded that the meeting had been arranged by the Island Council.

He agreed that another presidential candidate, Tewareka, had visited Taburao and had presented tobacco.

He also agreed that when the Respondent presented the tobacco he did in fact say that it was his mweaka, but he denied hearing the Respondent say that the mweaka was given according to custom and that they should not be influenced by it. He did admit, however, that he had left to relieve himself while the Respondent was still speaking.

He denied that the tobacco had been shared between the 36 households of the village. The Respondent had given more than 10 sticks and his share had been 11/2 sticks. He did agree though that where a person is invited to the maneaba by the village then the gift should be shared by the villagers.

He agreed that he had known the petitioner since childhood but denied being a friend of his.

He said that he had 2 boys but could not remember their ages because he has high blood pressure!

In re-examination he resiled from his testimony that the meeting with Respondent had been arranged by the Island Council.

PW7 Tokintekai Rewa, 26, Tebunginako, Abaiang

He saw the Respondent in the Catholic Church maneaba at Tebunginako. He had gone there because he had heard that somebody was going to speak in the maneaba and he wanted to listen. There were about 10 people present, the younger ones being in their 20s.He himself was not registered as a voter.

The Respondent stood up and asked for someone to receive his mweaka. He received the tobacco from the Respondent. He had never in his life received a mweaka before.

After he received the tobacco, the Respondent then stated that he was one of those who wanted to be a father to Kiribati. He also mentioned that he wanted to be elected President.

The tobacco was later shared by a person named Tokamaen among those present. His share was one stick.

In cross examination it was put to him that there were 30 to 40 people in the maneaba and he conceded that although there were only about 10 people there when Respondent arrived, more people came after that.

He denied that his share was really only two inches of tobacco.

He agreed that he heard the Respondent say that the mweaka was part of the Kiribati custom "that if you enter the maneaba you have to give a gift", but he denied hearing the Respondent say that it should not influence their votes. He conceded that the Respondent gave the mweaka openly to voters and non-voters alike, in other words, to all those inside the maneaba.

PW8 Tokamaen Tawita, 24, of Tebunginako, Abaiang

He was present when the Respondent visited the maneaba at Tebunginako.

There were about 10 people in the maneaba, two of whom were only 14 or 15 years of age.

The Respondent gave one block of tobacco as mweaka. This was received by Tokintekai. The Respondent then spoke of his qualities and said that he was one of those who wanted to be elected president.

It was he who shared the tobacco. He had never done this before. Every one present received at least one stick and a few two sticks, including himself. It is the practice to give a share to everyone present. Even the two youngsters 14 or 15 years old received a share.

He was happy with the tobacco and felt indebted to Respondent.

In cross examination he agreed that some people came after the Respondent arrived, but he would put the total attendance as no more than 18.

He did not know if the Respondent had told the people that he gave the mweaka to comply with custom and that it should not influence them to vote for him.

PW9 Kanoua Toariri of Ewena, Abaiang, aged more than 60.

This witness did not see the Respondent, but gave evidence of what other people had done when visiting the maneaba.

He said that he saw Roniti, one of the presidential candidates, at the council maneaba named Terunganaine in the village of Taburao. He did not give anything and was not criticised for it after he left.

Another candidate, Taberannang, visited the maneaba named Tetokaniaki in his village of Ewena. He also did not give anything.

He saw a third candidate, Tewareka, at the maneaba Terunganaine but he left after Tewareka said that he wanted to be elected President, so he does not know whether Tewareka gave anything or not.

A "fisheries lady" visited his maneaba last month and she did not give anything. She was not criticised for it but if she had given tobacco it would have been accepted. The giving of gifts inside the maneaba is; not obligatory.

PW10 Kaiboboki Temati, 36, Tanimaiaki, Abaiang

He testified that when the Respondent came to the village maneaba he produced tobacco which he said was his mweaka. He then said that he was one of those who wanted to be elected to the Presidency.

There were more than 50 people in the maneaba, the youngest being about 20 years old.

The tobacco, almost a block, was given to him to share. Each share was more than 1/2 stick. He had not been expecting the Respondent to give tobacco and felt indebted to him.

He said that a visitor to a maneaba can give something if he wishes to, and it would be accepted, but he would not be criticised if he did not give anything.

PW11 Teatao Bwebwentekai, 54, of Teteirio, Beru

He is the chief councillor of the Island Council of Beru. He uses the term "moanei" instead of "mweaka" to describe the ceremony in the maneaba.

He said that he met the Respondent at the Government station on Beru and accompanied him on his tour of the villages.

They went first to the village maneaba at Aotukia, where there were more than 30 people, all adults.

The Respondent stood up and gave more than one block of tobacco to the maneaba as moanei. He said, amongst other things, that he wanted to be elected.

The cost of a block of tobacco at that time was $20-00.

They went on from there to Tabiang where there were more than 40 people in the village maneaba. Again, the Respondent gave a block of tobacco, or more than a block, as his moanei. Again he said, amongst: other things, that he wanted to be elected.

The next village visited was Aoniman. There were more than 20 people, all adults, in the village maneaba. By "adult" he means a person of 19 years of age and upwards. The Respondent stood up and handed over his moanei. It was about one block of tobacco but was a different size from the other blocks. Again he said he was one of the candidates.

The Respondent went on to visit a fourth maneaba, but the witness did not accompany him.

The following day he met the Respondent at his village maneaba. More than 20 people were present, all adults. Again, the Respondent gave his moanei, using the same words. Again he said he was one of the candidates to the presidential election. The moanei was almost one block of tobacco. His share was 1 1/2 sticks.

He explained that moanei is something which is given to the maneaba by visitor. It is not obligatory but if it is given it will be accepted. If not given, it does not matter. There is no prescribed minimum for moanei.

In cross examination he agreed that he had arranged the meetings for Respondent on Beru, after Respondent had written to the Island Council.

At Autukia, although his estimate was that the tobacco given was more than a block, he conceded that he did not see it properly as it was wrapped up.

He also conceded that although he did not hear the Respondent say that he was only complying with custom he could have said that. He was only there because he had to accompany Respondent but he was not really concentrating on what he was saying. He was unable to say whether or not the Respondent mentioned that the moanei should not be taken as part of his campaign and that it should not influence their vote.

He further conceded that at Tabiang, the Respondent may have only presented 1/2 block of tobacco.

At Tabiang he again was not concentrating on what Respondent was saying, so he does not know whether Respondent had told the people he was complying with custom in the maneaba or that the moanei should not influence their vote.

At Aoniman village he admitted that he was not sure of the amount of tobacco given; it might have been 1/2 block.

This time he remembers hearing Respondent explain to the people that the moanei was part of the custom. He did not hear Respondent say that the moanei should not influence their vote, but he admits that he was not interested and was not paying attention.

The next day the Respondent visited his village of Teteirio, but once more he was not interested in what Respondent had to say; in fact he left early. He only stayed about 10 minutes.

He said that a stick of tobacco costs more than 70 cents.

He agreed that the people of Beru are very strict on custom. The custom of the maneaba is that a visitor may give something but is not obliged to. The gift normally given by visitors is called moanei, which is praised in the maneaba and it is explained to those present that it is the visitor's moanei. He says, though, that he does not quite understand moanei.

He admitted that he was asked to come to court by Taomati Iuta, MP for Beru and a member of the Opposition. He was reluctant to admit any relationship with this MP, at first conceding he might be a distant relative and then agreeing that he might even be his uncle, but he does not really know.

PW12 Tewaki Tebania, 39, Muribenua, Nikunau

He gave evidence that the Respondent came some time in September 1994 to the church maneaba at the village of Muribenua. The Respondent was not invited but he had asked to meet with them. It was therefore known that he would visit the village and the visit was welcomed.

On arriving at the maneaba Respondent presented one block of tobacco which he said was his mweaka. There were more than 50 people present, all adults. His share was more than 1/2 stick. Every household in the village received a share. After giving the tobacco the Respondent explained the purpose of his visit, that is, that he wanted to become President.

The witness stated that he was pleased to receive the tobacco and felt indebted to the Respondent.

He explained that "mweaka" is something you leave behind when you depart. It is not something you announce publicly. You leave it without saying anything. You can leave it in the maneaba or at shrines. The giving of things inside their maneaba is something a person is free to decide. In Nikunau, mweaka usually takes the form of tobacco.

There is no prescribed minimum for mweaka. You can give more in the maneaba but at the shrines at least a stick, or even less.

The word "moanei" is also common on Nikunau. It is a gift you give when you first arrive. It can be given in the maneaba or the house if you have a visitor whom you have invited.

He said that when the Respondent presented his gift he used the word "mweaka". He announced it publicly, which is not how you present mweaka in Nikunau.

In cross-examination he agreed that the Respondent as a visitor, was entitled to give moanei but he was not obliged to do so. It is good manners to give moanei, but there would not be a problem if it is not given.

He further agreed that when the Respondent stood up to present his mweaka but before it was received he explained that he was complying with custom and it had nothing to do with the coming Presidential election.

PW13 Takabwebwe lakoba, 52, Tematantongo, Maiana

He testified that he saw the Respondent in his village maneaba at: Tematantongo where the Respondent presented more than 10 sticks of tobacco, saying that he was giving it to the old men as their smoke. He said, "this is your smoke. I hope you don't mind".

The tobacco was nevertheless shared with all who were present, and he received 1/2 stick.

He feels that if he receives a gift from somebody he has to repay that gift.

PW14 Natan Tutamoa, Age 55, Nikumanu, Nikunau

He said that the candidate Roniti visited the KPC maneaba at Nikumanu. There were over 100 people there yet he gave nothing, and he was not criticised for it in the maneaba.

The Respondent came next, but he was not there for that visit.

PW15 Kabuati Namoriki, 54, Bubutei, Maiana

He said that two other presidential candidates, Roniti and Taberannang visited his village before the election. Neither gave anything. He had not expected anything and did not criticise them for it.

The Respondent did not visit his village.

PW16 Meerei Aukitino (f) 37, Officer-in-Charge of Outer Islands Project.

She gave evidence that she visited Abaiang on 18 September this year and went to maneabas in all the villages except Tebunginako.

At the first village she visited, Takarano, she presented a block of tobacco, but at the other seven maneabas she went to she did not give anything. She explained this by saying that she came from a very small company and she had come for the benefit of the villagers.

In one village, Tabontebike, she was invited to the maneaba one night; for a welcome feast. She went to the maneaba with money and presented the money. She did that because she had been invited and would have been ashamed not to have given anything.

She did not feel the same about the other maneabas because her visit was not for her benefit but for theirs.

She gave the tobacco in Takarano as her mweaka. As far as she was concerned it was for the whole island, and thereafter it was not necessary to give any tobacco in the other villages.

In cross-examination she agreed that she had gone to Abaiang to encourage the people to catch more fish. The project was for their benefit and that is why she did not feel ashamed at not giving tobacco in every village. However, had the visit been for her benefit she would have felt ashamed at not giving tobacco.

She also agreed that mweaka is the acceptable thing in Kiribati. Her grandparents taught her that if you are new to a place you should bring something. When she gave the block of tobacco at Takarano she had felt obligated to give it.

PW17 Teaiaki Koae, 31, Clerk to the Maneaba ni Maungatabu.

He produced on subpoena the following documents:-

(i) The article entitled "Corrupt and Illegal Electoral Practices", written by himself and published in the book "Atoll Politics"; and

(ii) The minutes of the proceedings of the Maneaba ni Maungatabu for December 1991, in particular pages 352 to 356 incl. which record a speech delivered in Parliament by the Respondent on the 17th December 1991.

The witness stated that he based his research for his article on two Kiribati High Court cases, Tito Teburoro v. Bauro Teteka & Ors (No. 22 of 1982) and Kabwebwenibeia Yee-On and 10 Others v. Teiraoi Tetabea and Ors (No. 8 of 1987). He was once Acting Chief Registrar of the High Court, has a BA degree from the University of the South Pacific and an LLB from the University of Papua New Guinea. No attempt was made to qualify this witness as an expert on customary law and he himself agrees that his article was based on his research of the two cases, rather than a study of the customs of Kiribati.

I do not intend to recite the whole of that article here because I do not think that it has any probative value as far as the issues presently before the court are concerned.

I will quote one passage, however. This passage was referred to by counsel for the Petitioner in his submissions and seems to echo the sentiments of the Respondent as appear in his speech referred to above.

"I-Kiribati are very emotional and could be influenced by receiving unexpected, seemingly kind gifts. Receipt of a gift normally requires the recipient to return the favour in a way that surpasses the value of the original gift. The easiest way to reciprocate the gift from an electoral candidate would be with a vote. Therefore, if I-Kiribati are to exercise their constitutional right to vote freely, they must be protected against unwarranted and unjustified gifts".

The Respondent's speech to Parliament was tendered as an admission against him and it is now set out in full.

"Speaker, perhaps some Members will wonder as to what is the meaning of this. There is no wish that this topic of mine will provoke a lengthy debate Mr Speaker. The real purpose Mr Speaker, is that I wish to highlight some of our customs, or some Kiribati traditions which are beginning to be eroded Mr Speaker, by the foreign ideas and the office of the Member of Parliament.

Speaker, as we all know there was no such office in the time of our ancestors, but is a office created by Foreigners which is to elect someone from the people of an island. And after you have been elected in an election you are a little bit above your compatriots because you receive a salary every month; you get flown to Tarawa, or we that are from Tarawa, will begin to get a mead allowance every day and for all the days that we are meeting. There is a rise in status Mr Speaker to those elected and because of that there is an attraction in wanting to be elected to an office like this.

Speaker, and I am not blaming someone or anyone as perhaps it is in all of us to find our own means so that we could be elected. There is someone who says that what I say is proper that our means is to work for our people for the four (4) years We do a lot of useful efforts for them and they will see us as good workers for their benefit. If this is true then they will return us in the next election.

But there are other creativities Speaker, which we have created and they will eventually become established practice during the election, such as one. when an election time is drawing close we start doing something such is called a way of putting people in an awkward position. This does not mean that we are denigrating an I-Kiribati of not being able to think or an I-Kiribati liver being easily rotten. I am not saying that an I-Kiribati's liver is easily rottened by something that you offer him, but I am saying that a person Speaker, is very awkward if he does good to himself. If you show kindness to him an I-Kiribati under his custom will reciprocate your kindness. If you give him something then you are placing him in a position of indebtedness to you and for that debt what is there to repay? And my way as an I Kiribati I feel something may be getting your food such as "te manam " (grated cooked babai mixed with grated coconut) which I may be contributing in the Maneaba. After you have got your food "te manam" then I feel at peace, for you offered me a drink of milk which is thick and I eat rice and a 6lb corned beef and I eat cabin biscuit. In return for these I have a way to show that I am a person who is not hungry and I am not in need of those things you offered me for I have them myself. You have your pride and I have my pride. You give me kindness and I offer kindness in return. The debt is repaid there Speaker and there is no more feeling of being indebted or being obligated or a feeling of indebtedness, or feeling of anxiety or feeling of gratitude.

Sometimes however, Speaker, there is no time for me an I-Kiribati when something is done to me, to me who is also a voter, for you do me a favour and there is little time and I have no other alternative to repay my debt; and to show you that I am a real person and one who is not in need and does not expect you to feed my mouth with what, with water. And since time is close and I have no other alternative to repay you other than to give you these pluses from me, my wife and children.

And this is another side Speaker, which can be awkward. Since we are already in a position where we are paid and thus have money and if we carry on with this practice Speaker then it will be very difficult for others who may have more talents than as to compete against us in this office of ours. For we, have been in this place before them doing kind deeds of significance greater than what a more talented person can do as I have already been elected and done much work of kindness to the people. And it may happen then that in future if this practice is growing it will only be those who fill up my pocket who will get to elected members for their people in the House of Parliament. I am one Speaker who do not believe in this that the person who fill sup??? one's pocket will get to be elected, or to be more trusted, as the best servant or worker for his people. I think that the talent for work is different from the talent of having money and those two sides are different Speaker, and the point I put for discussion Speaker, is to find a way that we can agree to this time not to continue with our current practice based on money. What is important is our I-Kiribati values which is to look for what is right, to look for the best and to look for progress.

Besides that Speaker there is another thing which is developing and Government should not be offended if I say this, but recently Speaker this thing reached its climax when Radio Kiribati made an announcement to denounce the publication of a book by one of the Churches of Kiribati. I heard Speaker that after some time the Head of that Church was contemplating to sue Government in the High Court when they felt that it was them that had been denounced by the parent who is the Government of Kiribati. This is something which I say it will be sad for our future if we do not readily table them.

I heard that the Head of the Church felt uneasy when it was announced to the public that its newspaper is a newspaper which is lying and is falsely accusing Government, and what else and what else.

I am not supporting the church Speaker but I stand for what is right and what is to be followed. I think that if Government is feeling concerned from time to time by the activities of one Church, or by various organisations then I say that it is the duty of the Government which is the parent to discuss, to call for the son/daughter who has been unhappy or what else happened and to listen and to find a solution in the best way Speaker.

Speaker I do not think that it is the proper way to make an announcement over Radio Kiribati and to spend almost a thousand dollars from public funds in denouncing some organisations that they are bad and to put them to shame. I think this is not the way to peace but it is the way to violence and war if these issues are not quickly subdued.

Thanks to the Vice-President for his speech which he raised last time to thank Kiribati for the peaceful recent election where he said that it was very peaceful and not like other countries where during their elections there is much violent rioting and civil war amongst their people. I think that Government must be very thankful beyond thanks to Kiribati for in spite of it Government instigating war in its news, which was provocative, it must thank that church and it must also thank the people who had anything to do with maintaining peace during the time when there was a feeling of jealousy when people were very much preoccupied with the election.

These are traditions which we must uphold Speaker, the tradition of having peace. We people of Kiribati must be peaceful and we have a custom of doing right and not taking advantage. These customs of ours Speaker, I think they must be kept until the end of the world and I think that is our duty, us that are now in positions of leadership, to preserve these customs. For if we do not Speaker then one day there will be war. There will be war occurring between our people in the north, south, the Protestants, Catholics and the group of Members who support the present Government party and those Members who support us. They will stick to their ideologies and they may wage war in time Speaker. This is the reason I raise this topic Speaker which I lay it before honourable Members Thank you very much".

This was the last witness for the Petitioner and his case was then closed.

H. (3) THE RESPONDENT'S EVIDENCE

RW1 Teburoro Tito, 43, President of Republic of Kiribati.

The Respondent gave evidence that his home island is Tabiteuea North, but he now resides in his electorate of South Tarawa.

He was taught about Kiribati custom at home where his father is in charge of the village maneaba.

He holds a Science degree and a graduate certificate in Education. After graduation he worked for the Ministry of Education. From 1983 to 1987 he was a member of the Kiribati Language Board which produced a standardised grammar and also materials on Kiribati culture for primary and secondary levels. Part of the Board's activities was to collect materials on the different customs of Kiribati, including practices in the maneaba.

He has given evidence in the High Court as an expert witness on customary practices. One case was an adoption case when he was in the Ministry of Education. More recently he gave evidence in an election petition case HCCC 25 of 1991, Tuarirake Teiwaki & Ors v. Teaiwa Tenieu.

During his presidential campaign he visited several islands, including Abaiang. In every case he wrote to the Island Council giving advance notice of his visit and requesting a meeting in the village maneabas only, not the church maneabas. In each particular village the notice of his coming visit was accepted.

Upon his arrival in Ribono village, Abaiang, the clerk of the Island Council gave him a programme prepared for his visit to the island. The people were all ready and eager to greet him.

As he approached the maneaba one of the people there called in a Kiribati way, "come, come". He went into the maneaba where a special mat had been placed for him to sit on. One of the old men stood up, welcomed him and thanked him for coming. When the old man sat down he stood up and presented a mweaka in the traditional way, explaining that it is in respect of Kiribati custom and that it has nothing to do with the election or the voting. One of the men received it and he sat down. The ceremony continued with this man talking on the mweaka and giving his blessing on the mweaka and the giver of it. What this man said was applauded and he sat down. Respondent then stood up and spoke for about one hour on Kiribati as a nation, its direction and future, his personal vision, and the policies of his party, economic, social etc.

At Ribono he gave one block of tobacco. There were about 50 people there, quite a full maneaba.

The witness then went on to describe in detail his visits to the other villages of Abaiang, and to the islands of Beru, Nikunau and Maiana. In each maneaba the ceremony performed was essentially the same, and he was always provided with food.

In Borotiam village, Abaiang, the tobacco he gave was about 1/2 block.

At Koinawa village, Abaiang, there were about 40 or 50 people present in the village maneaba and he gave about 1/2 block of tobacco.

At Tanimaiaki village, Abaiang, 50 or 60 people were present and he gave almost a block of tobacco.

At Tebunginako village, Abaiang, he met the people in the Catholic maneaba. At first there were only about 20 people present, but his number grew to about 50 during the meeting. He gave about 1/2 block of tobacco. After being called into the maneaba he sat on the western side which is the usual place for a visitor.

On Beru Island the same arrangement had been made with the Island Council, and he visited several villages with the Chief Councillor Teatao, who gave evidence for the Petitioner.

In the village maneaba at Aotukia he met about 40 or 50 people. He presented about 1/2 block of tobacco. Again he was seated on the western side of the maneaba which is a very traditional maneaba. Another word for mweaka in this village is "moanei".

In Tabiang village maneaba there were 40 or 50 people present and he gave about 1/2 block of tobacco.

At Aoniman village the old man who received his mweaka reaffirmed his belief that it is a custom, will always be done whether or not there is an election, will not affect their judgment and that mweaka is not meant to destroy the independence of a human being but rather to reinforce it. There were 40 or 50 people there and he gave 1/2 block of tobacco.

In the village maneaba at Teteirio he presented about 1/2 block of tobacco. The old man who accepted agreed that the mweaka had nothing to do with the election, that they had their own minds, that they had plenty of smokes, and that the little smoke he had received would not make any difference at all.

When he visited Nikunau Island he went to the village of Muribenua to the village maneaba, which is also the Protestant Church maneaba. About 40 to 5 people were present and he presented 1/2 block of tobacco. The old man who received it also said that it had nothing to do with the election but only with custom.

When he visited Maiana Island he went to the village maneaba at Tematantongo. There were about 30 adults there and he presented about 1/2 block of tobacco. The people there agreed that mweaka would never influence their vote. One old man said that their decision had already been made after listening to the parliamentary debates on the radio.

His understanding of mweaka is that it is a way of respecting the maneaba and certain sacred places of the Kiribati people. When you do it you get a blessing in return. You are free from the curse of the spirits. This is based on the belief of the Kiribati people from time immemorial that life is controlled not so much by human beings as by spirits. In mythology we are descended from spirits or half spirits created by the god Nareau. Nowadays it is translated in human terms.

He gave mweaka in those maneabas out of respect for the maneaba as a sacred house, respect for those in it and those who form part of it, living and non-living. According to their belief, the spirits of the non-living also dwell there in the maneaba or in the village.

If he did not give mweaka he would be open to criticism and open to misfortune for the rest of his life. His immunity from curses, misfortunes and bad luck would be weakened.

Prior to these visits he had given mweaka many times, in fact every time he goes to a maneaba.

He started organising football tournaments in Abaiang in 1984. The first time he arrived he presented three blocks of tobacco to the people in their maneaba in Koinawa village. From then on, he visited he presented no less than three blocks of tobacco to each village maneaba he visited.

The second tournament he organised was on Tabiteuea North and he did the same thing. At Eita village he presented three blocks of tobacco to the old men at the village maneaba, and another three blocks at his home village of Buota.

The fourth tournament was held on Abemama and he presented three blocks of tobacco the village maneaba, where they were guests.

The fifth tournament was held on Makin Island and he presented three blocks of tobacco to St Paul's maneaba, where they were guests.

He has lost count of the many places in which he has given mweaka as a football organiser or education officer. He visited Beru Island twice in 1984 or 1985 and presented his mweaka to the school maneaba.

More recently, he took his veteran's soccer team on a tour of Abemama, Aranuka, North Tarawa and Abaiang, and in each place he always started off with a presentation of no less than three blocks of tobacco in the maneaba where they were received.

In 1987 when he was one of the candidates in the presidential election, he visited all of the northern and central islands of Kiribati and one or two in the south. He gave mweaka because he felt he had no choice but to do so.

He was referred to Ex "C", the English translation of the speech he made in Parliament in 1991. He said the heading of the topic was, "Undermining Some Parts of Our Custom in Our Ambition to become Politicians".

His purpose in raising the topic was to discourage certain undesirable behaviour by some MPs prior to the election; for example providing substantial amounts of food and drink, food such as tins of biscuits and large tins of corned beef; also, the practice of the ruling party of providing increases in employment and the price of copra and seaweed to voters immediately before the election; further, the bad practice of the last government in creating tension and rivalry between church groups and sectors of the community a day before the general election. He believes that if the politicians themselves do not discourage such activities, then the election results would not produce good quality men for the nation. Good quality men would always lose out to men with no quality but plenty of money.

He explained that the speech had nothing whatever to do with the maneaba. It was not an attempt to undermine or criticise the sacredness of mweaka. It is his belief that mweaka promotes the independence, integrity and dignity of the human mind rather than invading its independence. It makes a voter more dignified by being respected, whereas providing large tins of biscuits and corned beef, extensive employment created at the last minute, and large amounts of cash from copra, erode the independence and integrity of the voter.

His government's view of mweaka is no different from that of the previous government, that is that mweaka is a must for public servants and officials travelling to the islands. Public servants are provided with public money to buy mweaka. If tobacco is not available they may give $20 cash to the maneaba. They are entitled to mweaka of one block of tobacco or $20 cash per maneaba. If they wish to give more it must come out of their own pocket.

When cross-examined he said that his original intention was to present one block of tobacco in all the maneabas visited but did not have the money, so he decided to give one block in places of traditional significance and a '/2 block in places of lesser significance.

He agreed that mweaka may be called a customary gift but it is really an act of respect.

RW2 Tauia Timi, 57, of Ribono, Abaiang.

He said that he was in his village of Ribono, Abaiang, when the Respondent arrived in September last year.

He and the old men welcomed the Respondent to the maneaba. He told the Respondent to "come".

The Respondent had a mweaka with him, almost a block of tobacco. It was received by Tiwai, the messenger of the village and it was praised as is the custom when there are guests in the maneaba.

The Respondent said: "To the old men and men of Ribono, I did not give you this mweaka for the purpose of being elected. I give you this mweaka in accordance with the custom of Kiribati as I am a newcomer to your maneaba".

There were 40 or 45 people present. It was not a block of tobacco but 15 sticks. They had expected mweaka because it is a custom of their village and their maneaba.

He and the old men thanked Respondent and blessed him with good luck for what he had done. This is what is always done to visitors who come to Abaiang.

He voted in the election and he had made up his mind who to vote for long before Respondent visited Abaiang. Respondent's mweaka which was only a 1/4 stick did not change his decision.

This was the Respondent's first visit to the maneaba at Ribono.

The old men's association, Ueen Abaiang, has visited his village a number of times, the last time being in November this year. They visited the same maneaba that the Respondent visited and they presented a block of tobacco as mweaka.

In cross-examination he confirmed that every time the Association visits their maneaba they always give mweaka of that kind. It is not just in his village but wherever they go.

RW3 Tewannanti Maio, 5l , Ubanteman, Abaiang

He testified that he was at the maneaba when the Respondent came to Ubanteman in September 1994.

When the time came the Respondent stood up, held his mweaka and said: "This is my mweaka for the purpose of obtaining good luck as this is my first time in the maneaba". He did not mention anything about the election.

When the Respondent presented his mweaka he said words to the effect that he was giving it for Kiribati custom and not as part of his campaign. The Respondent was thanked and his mweaka was blessed.

The old men of the Association later took the tobacco away with them instead of sharing it.

RW4 Tebeibei Tamatau, 62, South Tarawa

He gave evidence that he used to live in Banraba village, Abaiang, but has been in South Tarawa for more than five years now.

He is familiar with the custom of Abaiang, having been taught about it by his grand-father.

He was a member of the Ueen Abaiang, the old men's association, from the 1970s until he left Abaiang, and at one time he was Chairman.

On one occasion a nun, Sister Alice, brought him to Tabwiroa, a Catholic secondary school on Abaiang to teach Kiribati custom and traditions, including the maneaba and mweaka. He taught this for more than two weeks.

He explained that mweaka is something a visitor presents to a maneaba. Those inside the maneaba are the people who were there before the visitor.

One reason for presenting mweaka is to obtain good luck from those inside the maneaba. Another reason is so that those inside the maneaba will see the visitor as a man.

The procedure is that the visitor stands up and steps forward towards the person who is receiving the mweaka. He does not just stand where he was seated but moves forward under baonimoto, a place under the roof of the maneaba. The messenger of the maneaba comes forward to receive the mweaka which he then gives to the old men. If the visitor has anything to say about what he has given, he can then say it. The popular form of mweaka nowadays is tobacco.

The visitor must stand beneath the baonimoto in order to show himself to the spirit of the maneaba, Taukarawa, who is up there. The story goes that his place is in the roof.

A shrine is another proper place for mweaka to be given.

A visitor to the maneaba is one who is a stranger to that village. Every visitor to that maneaba is required to give mweaka upon which he will obtain the blessing of Taukarawa.

The witness went on to say that when he was a member of Ueen Abaiang he went with the Association to other maneabas on Abaiang and gave mweaka to the village hosting the meeting.

When he was chairman he would ask the secretary to write to the members asking them to bring along mweaka. If the village to be visited was a small one, they might contribute one stick each; if it is a large village then at least two sticks each. The amount would also depend on the number of members attending, perhaps more than 20.

"Moanei" is something given by the visitor that belongs to those who are in the maneaba at that particular time.

There are three types:

(1) Moanei - to be used by those in the maneaba at that time.

(2) Ririwete, to be used by the old men present in the maneaba at that time, and

(3) Mweaka, to be used by the whole village divided into households.

The tobacco given at shrines is to obtain a blessing for your stay on the island. In the old days it was called "te tabo". It is now called "mweaka".

This witness concluded his evidence-in-chief by stating that he is related to the Petitioner; they are cousins.

RW5 Mweretaka Eria (m) of Ewena/Taburao, Businessman, Age 58.

The witness said that not long before the presidential election in September 1994 he saw the Respondent when the latter visited the maneaba Terunganaine at the village of Taburao on Abaiang.

The Respondent stated that the purpose of his visit was as one of the candidates in the presidential election. Before proceeding any further he asked for someone to come forward and receive his mweaka, which was tobacco wrapped in white paper. The Respondent said that the mweaka was given in accordance with Kiribati custom and that it should not affect one's right to vote for whoever he wanted to.

The witness was not able to see exactly how much tobacco was presented, but .he estimated that there were about 10 short sticks. The tobacco was later shared amongst those in the maneaba, about 20 or more persons, and his share was a piece of tobacco about half the length of his index finger.

The witness lives very close to that maneaba and he has observed people visiting it from time to time. All of the visitors gave tobacco in accordance with the Kiribati custom, which is that if you visit a maneaba you give tobacco called mweaka.

The witness again saw the Respondent in the village maneaba at Ewena, Abaiang. The Respondent was supposed to have arrived at 6.00 p.m. but was running late and did not arrive until after 10.00 p.m. at which time there were only a few people left in the maneaba.

The Respondent said that before he proceeded he wanted one of the old men to come forward and receive his mweaka. An old man named Kaumai came forward and said that this was for the purpose of Kiribati custom but that he the Respondent was not obliged to perform it.

The Respondent said more or less the same as he had said at Taburao, that the mweaka was not meant to influence the people's right to vote and that they should vote for whom they like.

The witness could see that the tobacco was wrapped in the plastic cover used for block tobacco but that it was not a full block. When it was shared he received about half a stick.

The following month, in October 1994 a man named Tebuai Uaai visited the maneaba and he presented a block of tobacco as mweaka.

The witness said that Respondent's visits to the two maneabas had no effect on the way he voted.

The witness underwent an exceptionally long cross-examination. He was in the witness box for almost five days of the hearing and all but 50 minutes of that time was taken up by cross-examination. In my view he stood up remarkably well. There were some minor inconsistencies in some of his answers, but he was not shaken at all on what he said were his knowledge and beliefs of Kiribati custom. In fact, he was given ample opportunity to enhance what he had said in examination-in-chief and I was left with the impression not only that he had a good knowledge of Kiribati custom but that the beliefs he expressed were absolutely genuine.

He confirmed that while it is not obligatory for a visitor to present mweaka in the maneaba, if he does not do so those present would think of him as a person who does not know Kiribati custom. What is presented by the visitor in the maneaba is never described as a gift but as mweaka, the custom performed in the maneaba. Mweaka is a very old custom related to the spiritual world. The mweaka is presented to the spirits in the maneaba although it is consumed by the people there.

When the old man's association Ueen Abaiang visits a village maneaba, the association presents mweaka to the village. But when Ueen Abaiang occupies a maneaba to receive a visitor, that visitor presents his mweaka to Ueen Abaiang and not to the village. In that situation, Ueen Abaiang are deemed to be the owners of the maneaba for the time being. The custom does not change; the only change is the person receiving the mweaka.

The witness drew no distinction between village maneabas and church maneabas; the custom of mweaka applies to both.

He agreed that the amount of tobacco presented has no bearing on the custom. Whatever amount is presented would still be mweaka. But he qualified this by saying: "It's a bit funny if you give half a stick (of tobacco) in every village. It would be mweaka but what would the people think?" He regarded one block of tobacco as being a small amount if it is distributed to the villagers.

In re-examination he explained that he had seen a lot of visitors come to the maneaba at Taburao, including High Commissioners, the former President leremia Tabai and people from the Government; they had all presented mweaka.

PW6 Tebuai Uaai (m), age 41 of Butaritari.

The witness stated that he was the Senior Local Government Officer with Home Affairs.

He was on Butaritari when the other three presidential candidates visited there prior to the 1994 presidential election. The Respondent did not come to Butaritari.

He accompanied the candidate Tewareka Tentoa to four villages and in each maneaba Tewareka presented a mweaka of one block of tobacco.

He also accompanied the candidate Roniti to three maneabas but left when Roniti entered the maneabas.

He went with the candidate Taberannang to three maneabas and Taberannang did not present mweaka in any of them.

The witness is at present in charge of projects in the outer islands such as the village bank project. In relation to that project he went to Abaiang in November 1995 and visited all the villages. In each maneaba he presented a block of tobacco as mweaka, a total of 14 blocks. He paid for this tobacco himself and was reimbursed by the Government.

The witness is a strong believer in the advice given to him by his unimane, especially his father, who told him that whenever he visits a maneaba he must present mweaka to receive a blessing.

RW7 Bonto Kiribati (m) Age 44 of Abaiang, Agricultural Assistant.

This witness said that he has been on Abaiang for about two years. In September 1995 he was part of a team which toured the island to inform the people of the nature of their work and how they could assist them. Apart from himself, the team included the Chief Councillor, clerk to the council, a policeman, court clerk, medical assistant, Island Project manager, magistrate, the manager of two co-operatives, a representative from the seaweed industry, and the council treasurer.

The first village they visited was Ribono. In the village maneaba there the Vice Chief Councillor presented a block of tobacco as their mweaka.

In the village maneaba at Ubanteman, they again presented mweaka of one block of tobacco.

In the village maneaba at Tanimaiaki they also presented one block of tobacco as mweaka.

Other villages visited by the team were Takarano, Tebunginako, Borotiam, Aonobuaka, Tebero, Tuarabu, Tebanga, Tabontebike and Nuotaea. In each of those villages mweaka of one block of tobacco was presented.

Cross-examination revealed that he did the same thing in Marakei in 1993, visiting all of the maneabas there and presenting mweaka of one block of tobacco in each.

The witness resisted the suggestion that mweaka is simply a gift. He said that there is a difference because the word "gift" is not used in the maneaba as it is considered impolite to do so. "Gift" is used outside the maneaba, whereas what is presented inside the maneaba is called mweaka.

I noted with interest that counsel for the Petitioner, Mr Berina, revealed in one of his questions that in 1992 he himself had presented tobacco at the Catholic Church maneaba on Marakei.

RW8 Boitabu Toukuriri (m) Age 31 of Borotiam, Abaiang.

He said that prior to the presidential election in 1994 he saw two of the candidates, the Respondent and Taberannang at his village of Borotiam in the village maneaba called Tabakea.

The Respondent was called into the maneaba in the normal way. There were about 20 people present in the maneaba, all adults and mostly men but there were a few women there as well.

The Respondent stood up, greeted the old men and those in the maneaba and said: "I am one of the candidates for the presidential election. In custom I have brought with me mweaka of tobacco. My mweaka should not influence whom you have planned to vote for. You have the right to vote for whom you want".

The mweaka presented was about half a block of tobacco. It was shared amongst those present and the witness received about half a stick.

The other candidate, Taberannang, also came to the same maneaba but instead of presenting mweaka he apologised for not doing so.

The witness has seen other visitors come to their village maneaba and present mweaka. The amount usually presented is one block of tobacco. He remembers a Government team which visited his village during the Petitioner's Government and presented mweaka. The names of two of them were Meita and Ioran. Also, the old men's association Ueen Abaiang visited their maneaba and presented mweaka.

He said that the tobacco given by the Respondent had no influence on the way he voted.

In cross-examination he denied that he was upset with Taberannang for not giving mweaka. In fact he felt sorry for him because Taberannang is an I-Kiribati and knows the custom but because he did not comply with it he was regarded as a person who does not know custom.

As far as the amount goes he agreed that one stick would still be mweaka but that is the amount which would be given at a shrine. He had never seen anyone give one stick of tobacco in the maneaba. He agreed that Taberannang gave nothing at all, but he cannot recall anyone else giving nothing.

He disputed the suggestion that mweaka is a gift. He had never heard what the visitor brings to the maneaba described as a gift.

RW9 laruru Rubeaua (m) Age 50, of Tanimaiaki, Abaiang.

This witness testified that prior to the presidential election he saw the Respondent at the maneaba called Katokibaina in Tanimaiaki village. There were about 40 people present, all adults and mostly men, with a few women.

The Respondent asked one of those in the maneaba to accept his mweaka. He then said he was one of the candidates for the presidency and wanted to work for Kiribati.

The witness himself accepted the mweaka, seven sticks of tobacco, from the Respondent. He then gave it to a person named Ioane whose role was to praise it. The mweaka was shared amongst those in the maneaba and the witness received one inch of tobacco as his share.

The witness said he had expected the Respondent to bring tobacco as that is the custom. He had decided whom he was going to vote for two years before the election and the Respondent's visit did not change anything.

When cross-examined he said after a visitor who has not brought mweaka has left the maneaba those in the maneaba would call him a person who does not know Kiribati custom, or "a Japanese, or something".

He confirmed that he had not heard the Respondent say that his mweaka was not meant to influence the people in their vote.

He would not agree to the suggestion that mweaka was a gift. He said that a gift has no place in the maneaba and if something is shown to be a gift it is not accepted. Mweaka is different from a gift and is presented differently.

He agreed that when a visitor presents mweaka he does not have to ensure that everyone receives a share. That is not his responsibility.

In re-examination he remembered that the Respondent had said, when presenting his mweaka, that it should not influence them in the elections. He said that when he was asked about that yesterday, "May be I was so nervous I did not recall". (The day before, both in-chief and in cross-examination he had stated that the Respondent had not said those words).

RW10 Robiti Tebuaka (m) Age 29, from Tebunginako Village, Abaiang.

He said that he was in the village maneaba with about 18 or 19 other people, all adults, when the Respondent was allowed by the old men to enter the maneaba.

The Respondent greeted those inside the maneaba then stood up and asked for one of the old men to receive his mweaka. Before the mweaka was received the Respondent said that the mweaka should not influence them.

The tobacco, one block, was shared amongst those in the maneaba and the witness received one stick as his share.

The witness had decided on who to vote for after hearing the names of the candidates on the radio. The tobacco he received did not affect his vote.

He has seen other visitors come to that maneaba. A team from Government consisting of chief councillors and clerks from the whole of Kiribati once visited and presented mweaka to the maneaba.

RW11 Toati Takaria (m) Age 46 of Nikumanu Village, Nikunau.

He is Deputy Chief Councillor for Nikunau Island.

Prior to the presidential election he saw two of the candidates, the Respondent and Roniti, on Nikunau.

He saw Roniti first in the church maneaba at Nikumanu. There were a lot of people there, over 400, because other villages had come to Nikumanu for a gathering. Roniti made an offering of $40 to the church and $20 to the village.

The Respondent visited the village maneaba. He presented one block of tobacco as mweaka and explained that it was not part of his campaign but was for custom and that the people of Nikunau should not be influenced by it. When he left the maneaba the tobacco was shared and the witness received about two inches of tobacco. More than 300 men and women were present.

The witness stated that he was not influenced in his vote by the tobacco.

The witness had expected Respondent to bring tobacco because he had seen since he was a young boy that the practice was for visitors to bring mweaka to the maneaba. He has seen many visitors come and they did the same thing, usually giving one block of tobacco.

In cross-examination he greed that although it is custom for a visitor to bring tobacco it is really up to the visitor. However, he said it would be funny if a visitor did not perform custom because every visitor to his island presents mweaka.

He denied that mweaka was a gift.

He said that while a visitor usually brings one block of tobacco he has seen less than that given on occasions, amounts like 10 or 20 sticks.

RW12 Noaa Riua (m) Age 33, of Muribenua Village, Nikunau.

He said that he saw the Respondent and another presidential candidate, Roniti, on his island before the election.

The Respondent came to the church maneaba in Muribenua. It was known in the village that he was coming and 40 to 50 people were waiting in the maneaba, all adults and mostly men.

When the Respondent arrived the master of ceremonies of the maneaba went outside to greet him. He entered the maneaba and sat down in a place for visitors.

Then the old men stood up and spoke words of welcome. The Respondent then stood up and presented mweaka. He said, "People of Nikumanu starting from the infants to the old ones I present this mweaka in accordance with the custom that has been known to Kiribati which visitors always do and the mweaka should not affect you during your vote, but I am doing this in accordance with custom".

The tobacco presented was one block and it was divided amongst 50 households (42 households of the Kiribati Protestant Church and 8 households of Catholics). The witness received about half a stick of tobacco.

He had already decided who to vote for before the Respondent's visit and the tobacco he received did not affect his decision.

He was expecting the Respondent to bring tobacco because that is always done by visitors. He remembers when Teatao, the Petitioner, was President he visited the same maneaba and gave one block of tobacco. On another occasion three men from Government, Tekaie Uriam, Ereman Taoaba, and Tetabo Makara came to the maneaba and presented a mweaka of one block of tobacco.

The witness saw the candidate Roniti in the church maneaba at the village of Nikumanu, and Roniti gave money instead of tobacco. The witness saw him hand it to the master of ceremonies and thinks it was $40. He stated that when Natan Tutamoa gave evidence in the Petitioner's case that Roniti did not give any money he was lying.

In cross-examination he stated that he did not see Roniti give $20 to the village. The $40 Roniti gave was in appreciation of the choir.

The witness said that he does not know how he would feel if the Respondent had not brought any tobacco because he had never seen that happen. Nor had he seen a person come to the maneaba with only one stick of tobacco, or even ten sticks. What he has seen given as mweaka is one block of tobacco.

RW13 Mareweata Kiata (m) Age 61 of Tanimaiaki, Butaritari.

He is a member of the unimane (old men's) association on Butaritari and has been for a long time.

Before the presidential election three of the candidates visited Butaritari: Taberannang, Tewareka and Roniti.

The old men's association were holding a meeting in a maneaba in the village of Antekana when Tewareka visited them. The witness was chairman. Tewareka made a campaign speech and then presented mweaka of one block of tobacco. They would expect a visitor to present mweaka. They did not share the tobacco but left it behind for the maneaba.

Taberannang accompanied the association on a visit to the school maneaba at Bikaati. He made a campaign speech there but did not give anything.

Roniti approached the witness at his home in Tanimaiaki and asked him if he could arrange a meeting of the unimane as he wanted to speak to the old men. The meeting was arranged in the school maneaba at Keuea and Roniti provided the transport for the old men to get there. The old men arrived first and there were 33 people there when Roniti came. They first had some coffee and bread and then Roniti made his campaign speech. A lunch of rice and soup was served and then Roniti presented mweaka of one block of tobacco. They shared the tobacco and received one stick each. Apart from providing the transport, Roniti provided the food.

The witness said that in custom if a person comes to visit them like that they expect him to give something.

The witness did not see the Respondent in Butaritari before the presidential election.

When cross-examined he said that there is no limit on the amount of mweaka that should be given; what is important is how much you can afford.

The witness said that after Taberannang had left the maneaba without giving anything, he was discussed by those in the maneaba. He was described as an uncultured person, a white man and a person who does not know custom.

It was put to the witness that it is not obligatory for a visitor to bring mweaka to the maneaba. While he agreed that a visitor cannot be forced to bring mweaka, if he is I-Kiribati he really has no choice, because throughout Kiribati every person who visits the maneaba gives mweaka.

RW14 Enere Tekena (m) Age over 70, from Tanaeang, Tabiteuea North.

This witness testified that before the presidential election, the candidate Taberannang, who is himself from Tab North, visited the witness's village of Tanaeang, going to the village maneaba known as Tarabito. About 40 or 50 people had gathered, all of voting age. When Taberannang came to the maneaba he presented mweaka of one block of tobacco before proceeding to give a campaign speech.

Before the Petitioner, Teatao, was elected president the witness saw him in the same maneaba and Teatao gave mweaka the same as all the other people give. Teatao gave one block of tobacco, Roniti gave one block of tobacco, leremia gave one block of tobacco. When Taomati Iuta was vice-president during Teatao's presidency he toured with a team from Government and gave one block of tobacco. (The reference to Ieremia was to the first Beretitenti of Kiribati, leremia Tabai).

The witness has spent all his life on Tab North and what he knows of custom is what he has seen in his lifetime.

The witness saw the Respondent in his village maneaba before the 1994 presidential election. The Respondent was welcomed in the same way as the others and he presented the same mweaka as those people Teatao, Roniti, leremia and Taberannang, that is one block of tobacco. When presenting the mweaka, the Respondent said, "That mweaka of mine should not influence you but it is custom. You have your own rights but I come here to show that 1 want to be your servant as president and I will do my best for you and for the whole of Kiribati as well".

The Respondent's tobacco was shared amongst the households of the village, more than 60 of them, and the witness received about one third of a stick as his share.

The Respondent, as n MP from South Tarawa, was regarded as a visitor and was expected to bring tobacco on his visit to the maneaba in accordance with custom.

In cross-examination he agreed that it is a matter for the individual whether or not he brings mweaka but, if he does not bring it, after he leaves the maneaba the people would not be happy.

If a person does not bring mweaka he is said to be cursed by the ghost.

The witness agreed that it is up to the visitor how much mweaka he brings, but, from what he has seen, visitors use their common sense and bring enough so that the people each get a share.

He rejected the suggestion that the tobacco presented in the maneaba is for the people. He said it is for custom or for the ghost which is represented by the people.

He also rejected the suggestion that the tobacco presented as mweaka is really a gift. He said he had never seen a gift presented inside the maneaba.

He again rejected the suggestion that mweaka is only practised in the shrines. He explained that in the shrine the mweaka is for one person only, who represents the ghost, whereas in the maneaba there are many ghosts who are represented by the people in the maneaba.

RW15 Uatioa Itinikarawa (m) Age 63 from Tanimaiaki Village, Abaiang.

This witness said that he saw three of the candidates in his village of Tanimaiaki prior to the 1994 presidential elections. Those candidates were Taberannang, Roniti and the Respondent.

He saw the Respondent in the village maneaba named Katokibaina. The Respondent had been invited by the chairman of the village.

After entering the maneaba he presented his mweaka and emphasised that it was not meant to affect their right in making their vote. The witness understood the Respondent to be giving the mweaka because of custom and not because of the election.

The amount of tobacco given was about 10 sticks as far as the witness could see. His share was about two inches of tobacco. He had expected the Respondent to give tobacco as mweaka, and it had no effect on his vote.

Taberannang also visited the maneaba but did not bring mweaka.

The witness was also cross-examined as to his character and admitted that he had been dismissed from the Public Service and had spent some time in prison.

He rejected the suggestion that Respondent had only presented seven sticks of tobacco. He said that the 30 or 40 people in the maneaba each received two inches of tobacco.

RW16 Bakabae Aritian (m) Age 60, of Tematantongo, Maiana.

This witness saw all of the presidential candidates at his village maneaba at Tematantongo prior to the 1994 election.

After the Respondent was welcomed by one of the unimane he stood up and explained that the mweaka must be presented as a custom and he did it not to influence them but because of the custom. He then asked for someone to accept the mweaka and it was accepted.

Almost 50 people were present and the witness thinks that the mweaka was one block of tobacco. His share was half a stick.

The witness said that he was not influenced by the tobacco and it did not affect his vote.

The witness saw Tewareka at the same maneaba but he cannot recall whether Tewareka gave anything because he, the witness, arrived late.

Roniti and Taberannang also came to the maneaba but neither gave anything.

When cross-examined he denied being upset with Taberannang for not giving mweaka, but thought that Taberannang did not know the custom. He agreed that even in custom a visitor has a choice but said that from the point of view of the villagers, that visitor does not know the custom.

Counsel for the Petitioner, Mr Berina, put it to the witness that he (Mr Berina) gave mweaka outside the maneaba when he was in Tematantongo and in response the village invited him to the maneaba. The witness explained this by saying that what Mr Berina did does not mean that mweaka can be presented outside the maneaba. If it is not brought to the maneaba then it is not mweaka. In Mr Berina's case, the witness himself took the mweaka and gave it to the spokesman in the maneaba where it was presented and distributed.

He said that when Roniti left the maneaba without bringing anything, that fact was discussed among those present.

The witness disputed that mweaka is a gift, saying that from their ancestors he knows that what is given in the maneaba is mweaka.

RW17 Teramweai Itinraoi (f) Age 37.

The witness is the Acting Under-Secretary of the Public Service Division. She produced Circular said to be OB29/109 (although this number does not appear on it) issued by the Under Secretary, Public Service Division and circularised to all Secretaries, Heads of Divisions Chief Registrar High Court, Clerk to Parliament, Compol Betio and Director of Audit Bairiki. The circular deals with the subject of mweaka. The document is dated 9th August 1994 before the new Government came in. It was introduced during the Council of State before the Respondent became President.

The document was admitted without objection as Exhibit 4. It reads as follows:

"REPUBLIC OF KIRIBATI

OFFICE OF THE BERETITENTI
PUBLIC SERVICE DIVISION
P O BOX 68 
BAIRIKI, TARAWA
9th August 1994

OB CIRCULAR

All Secretaries
Heads of Divisions
Chief Registrar, High Court
Clerk to Parliament
Compol, Betio
Director of Audit, Bairiki

MWEAKA IN THE FORM OF CASH WHILE ON TOUR OF
OUTER ISLANDS

There have been incidences where government employees were required to make, as part of their official tour on an outer island, a public address to the villagers in the village maneaba and for which such employee cannot escape but succumb and conform with the traditional principles of offering a "mweaka": In some instances, a situation may arise where the officially recognised "mweaka" viz. Tobacco is out of stock on the island and the absence of tobacco on that island at that particular time, coupled with the disquieting experience envisaged if no tobacco as mweaka is presented, may compel such employee to decline the invitation to the mwaneaba; unless of course such employees are capable of resorting to other means, such as cash mweaka.

2. My purpose in writing at this point in time is to officially announce to all addressees that the Public Service Division has accorded such a scenario a thorough thought and in the eventual analysis, is sympathetic with those officials who may have got themselves pushed into presenting cash mweaka without proper rebate from the government. With immediate effect therefore, those officials who may not be able to procure tobacco for presentation as a mweaka, may now give cash in mweaka to the extent of $20.00 only as an alternative to tobacco. This cash mweaka is applicable for each maneaba visited, however meetings convened in a venue other than a village maneaba will not attract a rebate from government. In addition, those officials who can establish that they have indeed been compelled to offer cash in lieu of tobacco as mweaka to any maneaba, may request to this office for consideration prior to the Chief Accountant's processing of the rebate.

I trust that what is discussed in the foregoing is explicit however, I shall be glad to assist where clarifications are required.

(Sgd) Itintaake Etuati
for Under Secretary
PUBLIC SERVICE DIVISION"

In cross examination she agreed that there is nothing in the National Conditions of Service about mweaka being allowed. It was only introduced in August 1994 but before that claims in terms of tobacco were usually allowed.

She also agreed that the document was made after the Respondent had been returned as Member for South Tarawa.

In re-examination she explained further that in the past civil servants involved in ministerial tours usually gave mweaka. In 1992 she herself was involved in a Government team which went on tour and they gave mweaka of tobacco. This was when the Petitioner was in Government.

RW18 Batika Tominiko (m) Age 46 from Koinawa, Abaiang.

This witness, gave evidence that he saw three of the candidates for the presidential election at his village of Koinawa before the 1994 election. They were Taberannang, Roniti and the Respondent.

Before the Respondent arrived at the village maneaba there were about ten adults waiting inside for him. When the Respondent arrived an old man welcomed him and asked him to come in and take a seat on the mat, which he did. They then waited until more villagers arrived.

The Respondent then stood up and said, "Before I proceed we have a custom that we are used to. As you are aware, that is called mweaka". The old men seated opposite him replied, "That is right! That is right! Carry on". The Respondent then bent down to take his mweaka. It was tobacco wrapped in brown paper. He said, "This mweaka should not change your mind or influence you in your vote. Mweaka is our custom which must be performed. I ask that an old man receive my mweaka".

The witness estimated that the mweaka was more than 10 sticks of tobacco. It was given to the old men and later shared. His share was about one stick.

The witness said that the tobacco he received did not affect his vote. He had already made up his mind before the Respondent came.

In cross-examination he agreed that he had seen Taberannang and Roniti inside the same maneaba and they had given nothing. In answer to counsel he said that Taberannang had come first, hen the Respondent. He had expected something from both the Respondent and Taberannang. However, he was not upset with Taberannang, those in the maneaba only said that he does not know custom. It was the same with Roniti. Both of them were discussed after they left the maneaba. Those in the maneaba said that they had been educated overseas and may be they were brought up there and don't know the custom.

He denied that there had been only 10 people in the maneaba. Other people arrived to make the number up to about 20, and that was how many people there were in the maneaba when the Respondent left.

He also denied that the tobacco given to him by the Respondent was a gift. He was insistent that it was not a gift but custom.

RW19 Tewareka Tentoa (m).

The witness is the Kauoman-ni-Beretitenti (Vice President) of the Republic of Kiribati.

In 1994 he was one of the presidential candidates and campaigned on several islands in Kiribati.

On Abaiang he visited Ueen Abaiang (the old men's association) in the maneaba at Taburao, the Government station. He presented the old men with tobacco; he is not sure whether it was one or two blocks.

He also went to Marakei where he visited all of the village maneabas. At each maneaba he gave mweaka of one block of tobacco. Marakei has been divided into wards and the maneabas he visited were the maneabas of each ward.

He also went to Butaritari and as far as he can remember he visited all of the maneabas in the villages and gave mweaka of one block of tobacco in each maneaba.

After that he visited Makin and Kiebu and gave mweaka of one block of tobacco in each maneaba he visited.

He went to Kuria and visited maneabas there accompanied by the Chief Councillor or Clerk and gave mweaka in those maneabas as he had done elsewhere.

He also went to Malaria and visited all the village maneabas there, giving mweaka of one block of tobacco in each.

He did the same when he visited Nonouti, giving mweaka of one block of tobacco in each maneaba visited.

He went to Abemama and again visited all the villages and gave mweaka of one block of tobacco in each of the maneabas.

The last island he went to was Beru and again he visited the villages maneabas and gave mweaka of one block of tobacco in each.

In the witness' own words: "The reason I gave mweaka is because that is what you should do. It is so as we are known to the people and also to obtain blessing, the blessing of those in the island; in custom we say the spirits of the ghosts. I personally feel obliged. There is no way I cannot give mweaka. We grew up in Kiribati. These are the norms and values of our society. If you visit a place and do not give that you look funny and they say you are not an I-Kiribati. We were brought up in a Kiribati society and that is where we learned our custom, in our homes, in our villages".

The witness went on to explain that he was campaigning when he went to those islands but in giving mweaka he was performing custom.

Before this he had been in the Line Islands after the dissolution of the Maneaba, and he thinks he gave one block of tobacco. "If you ask to meet with them in the maneaba it is a custom you should do - give mweaka".

In cross-examination it was put to him that he gave his blocks of tobacco to the voters and he answered that the tobacco was given because of custom and not to influence them. He said that the tobacco was not given to the voters but to the maneaba, voters and non-voters alike.

He agreed with counsel that he had spent a lot of money on tobacco but added that he would not be so stupid as to visit the islands without it.

He also agreed with counsel that he is upset because they are taking this custom to court. The reason was that it is being taken to court by fellow I-Kiribati who have been brought up in custom. If it had been a foreigner he would understand.

It was put to him that in custom mweaka is not obligatory but he did not agree. He stated that mweaka is known throughout Kiribati and to an I-Kiribati mweaka is custom. An I-Kiribati grows up in Kiribati and that is how he is identified.

He agreed that it is up to the visitor how much mweaka he gives but he denied that in giving a block of tobacco he was giving more than was necessary. He said that under custom one block is alright and it is wrong to say that you have to give one stick instead of one block.

He was asked about some writings on the culture of Kiribati. He had not read Sir Arthur Grimble's "Tungaru Traditions" but had read Maude's "The Evolution of the Gilbertese Boti" and "The Gilbertese Maneaba". It was put to him that there is nothing about mweaka in those books and he replied that that is because the books are not about mweaka but about the boti and how a maneaba is constructed. In answer to a question by counsel that those books also talk of the custom of a maneaba he replied that the foreigner who wrote those books had other things in mind. He would not agree with the suggestion that mweaka is not important in the maneaba.

This was the last witness for the Respondent, whose case was then closed.

I. CONCLUSIONS

(i) MWEAKA AND THE MANEABA

The evidence, and the Respondent's own admissions, establish that during his campaign for the 1994 presidential election he visited the islands of Abaiang, Beru, Nikunau and Maiana and gave tobacco in the various maneabas there.

In rebuttal of the Petitioner's claim that he did so with the intention of corruptly influencing the people to vote for him, the Respondent says that he was doing no more than what was required of him by the custom of mweaka.

I have heard a great deal of evidence on this custom from the 36 witnesses called to give evidence in this case. In my view, two witnesses stood out from the rest in their knowledge of Kiribati custom. They were the Respondent himself and his witness RW4 Tebeibei Tamatau. Both have been involved in the teaching of Kiribati custom and traditions and the Respondent has given evidence in several court cases as an expert witness on custom. 1 accepted what they had to say about custom. Where their evidence was in conflict with that of other witnesses, 1 preferred their evidence.

The Petitioner argues that mweaka is a custom of a shrine, not of a maneaba, and that therefore the Respondent was not following custom when he gave the tobacco.

I have been referred to the books "Tungaru Traditions" (Grimble), "The Evolution of the Gilbertese Boti" (Maude) and "The Gilbertese Maneaba" (Maude). Counsel for the Petitioner argues that although all of these books discuss the maneaba, none of them makes any mention of mweaka being a custom of the maneaba but would have done so had mweaka been an important customary obligation to be performed in the maneaba:

I have studied these books and they do not, in my opinion, shed any light on the issues in the present case.

Grimble's book (at pages 203-205) deals only with the situation where the visitor is able to establish a right to sit in the maneaba by proving that he is a clansman related to one of the ancestoral boti (i.e. a place reserved in the maneaba for members of certain clan).

In "The Evolution of the Gilbertese Boti" Maude also deals only with the situation where the visitor claims to be a clansman. The book is more concerned with the culture associated with the boti, not the maneaba. He says on page 11:

"It would be inappropriate here to enlarge on the function of the maneaba in Gilbertese culture, a subject far too vast to do justice to in this study".

He does, however, say something about the maneaba which, in a way, can be regarded as supportive of what the Respondent has been saying:

"All behaviour under its roof had to be seemly, decorous, and in strict conformity with custom, lest the maneaba be matauninga (offended) and the culprit maraia (accursed)".

In "The Gilbertese Maneaba" Maude is concerned solely with details governing the construction of a maneaba, not with its customs.

It does not necessarily follow therefore that because those works make no mention of mweaka in the maneaba such custom does not exist.

The evidence before me enables me to come to certain conclusions regarding the custom of mweaka.

The traditional custom of mweaka was that a visitor to an island had to make an offering to the spirit at a shrine in order that his visit would be blessed with good luck. Another traditional expression of mweaka was for those journeying by sea to appease the spirits of the sea by throwing part of their food or tobacco into the sea before consuming it. Nowadays the accepted form of mweaka is tobacco.

At the shrine, the only person necessarily involved in the presentation of the mweaka is 'the visitor. Although the presentation is for the blessing of the spirit, the reality is that the tobacco left at the shrine is later consumed by the owner of the shrine, or, in some places, by the next person to come along. But the fact that a human being would eventually enjoy the tobacco is not the essence of the custom.

Over the years, popular usage has extended the traditional meaning of "mweaka" to include the custom in the maneaba. I am uncertain whether the custom of mweaka in the maneaba had its beginnings in ancient times or is of more recent origin. However, that it is a custom at the present day cannot be denied. Mweaka in the maneaba seems to have a similar philosophy to mweaka at the shrine in that the blessing of the spirit is sought. The essential difference is that mweaka in the maneaba involves the participation of people other than the visitor.

As far as I can ascertain, when mweaka is presented to a maneaba, the maneaba, for the purposes of the ceremony, is composed of three elements: the building itself, the people in it, and the spirits, or non-living. The mweaka, in the form of tobacco, is presented in the maneaba (one part) for the blessings of the spirits (another part) and is later consumed by the people (a third part). This is why "mweaka" cannot be described as a gift in the ordinary sense of the word. The custom is not simply the giving of tobacco to those in the maneaba. The presentation is really to what can be described as a trichotomy - the maneaba, the people present and the spirits - and the paramount purpose is to obtain the blessing of the maneaba, not to enrich the people present, even though it is realised that the tobacco will be shared among them.

What I have described appears to be the traditional approach to the custom, an approach which is associated with many legends of spirits which inhabit the maneaba. This belief in the supernatural nature of mweaka has probably been eroded to a large extent by the coming of Christianity to Kiribati and the advent of the Samoan missionaries in 1870 (Maude, "The Evolution of the Gilbertese Boti" p. 49). Nowadays there will no doubt be many a visitor to a maneaba who does not subscribe to the traditional belief. Nevertheless, the custom of presenting mweaka to the maneaba remains to be observed regardless of the personal beliefs of the visitor.

If I am wrong on what 1 have said about mweaka then it should be borne in mind that my primary concern is to consider the sufficiency of the evidence to establish as a fact that mweaka is a custom of the maneaba. That having been established, it is really not necessary to go into the more esoteric beliefs associated with the custom, although perhaps ethnographers and anthropologists would not agree.

(ii) GIFT OR CUSTOM?

Counsel for the Petitioner submits that mweaka is a customary gift. I have already explained why I do not consider mweaka to be a gift in the ordinary sense of the word. If counsel means by "customary gift" that mweaka becomes a gift in the literal sense only as an incidence of the custom of mweaka, then I would partially agree with him. I say "partially" because the gift would be a literal gift to only one of the elements of the trichotomy, that is, the people in the maneaba. Except in that very restricted sense, I accept the evidence of RW4 Tebeibei Tamatau and other witnesses for the Respondent that mweaka, when presented in accordance with custom, is not a gift. In my opinion, given the nature of the custom, it is more appropriately described as an offering.

(iii) IS MWEAKA OBLIGATORY?

Counsel for the Petitioner argues in the alternative that if mweaka is a custom of the maneaba then it is not obligatory.

The Petitioner himself admitted that members of a Government tour would be obliged to give tobacco in the maneaba, even though he denied it was necessary for individuals.

His witness PW5 Mamauri Taketi conceded in cross-examination that if a guest did not bring tobacco he would be regarded as a poor man and would be referred to as a person who did not know the customs of Kiribati.

PW 12 Tewaki Tebania said when cross-examined that it is good manners to bring moanei.

PW 16 Meerei Aukitino said in her evidence that in one village she had been invited to a feast and, having run out of tobacco, she went to the maneaba with money because she would have been ashamed not to have given anything. She agreed in cross-examination that she had been taught by her elders to give mweaka when visiting a new place and that when she gave the block of tobacco at Takarano she had felt obliged to do so.

The Respondent said in his evidence that if he did not give mweaka he would leave himself open to criticism and misfortune.

RW4 Tebeibei testified that every visitor to a maneaba is required to bring mweaka.

RW5 Mweretaka said that a person who did not bring mweaka would be thought of as not knowing Kiribati custom.

RW6 Tebuai said he was brought up to present mweaka when visiting a maneaba.

RW8 Boitabu deposed that he would regard a visitor who did not bring mweaka as not knowing custom.

RW9 Iaruru said that those in the maneaba would call such a person a "Japanese or something".

RW11 Toati thought it would be "funny" if a visitor did not follow custom because every visitor to his island presents mweaka.

RW12 Nooa said that he had never known a visitor to not give tobacco.

RW13 Mareweata would regard a visitor who did not give tobacco as "an uncultured person, a white man and a person who does not know custom".

RW14 Enere said that the people would not be happy with such a person and he would be cursed by the ghost.

RW16 Bakabae thinks of such a person as not knowing custom.

RW17 Teramweai produced a circular issued by the Public Service Division which describes visits by government employees to a village maneaba where they "cannot escape but succumb and conform with the traditional principles of offering a `mweaka :" The circular mentions "the disquieting experience envisaged if no tobacco as mweaka is presented' which may compel an employee to decline an invitation to a maneaba.

RW18 Batika said that certain presidential candidates who did not bring mweaka were thought by those in the maneaba not to know the custom because they had been educated overseas and may have been brought up there.

RW19 Tewareka Tentoa, the Vice President, stated that one has no choice but to give mweaka if one is I-Kiribati.

The evidence also revealed that counsel for the Petitioner has himself presented mweaka on a number of occasions.

I am satisfied that the evidence establishes the existence of a certain obligation attaching to mweaka. The nature of that obligation becomes clear when one considers the meaning of "obligatory".

The word "obligatory" is defined in The Concise Oxford Dictionary as meaning, "Legally or morally binding, imperative and not merely permissive; constituting an obligation".

Clearly the custom is not legally binding, but whether it is morally binding is another matter.

I am satisfied on the evidence that a visitor who did not present mweaka to the maneaba would suffer a loss of esteem in the eyes of those people in the maneaba. He would still be received and treated politely but he would not be highly regarded.

From the visitor's point of view, if he is an I-Kiribati who values Kiribati custom it is only natural that he would be constrained by his own conscience to follow it by presenting mweaka. He would be aware that there is an unspoken convention which requires him to do so.

Even if a visitor did not believe in the ideology of mweaka, good manners alone ought to compel him to bring mweaka.

Those witnesses who expressed the opinion that mweaka was not obligatory spoke from the point of view of a person on the receiving end. They were not asked to put themselves in the position of an I-Kiribati visitor who respects the custom. Although such a visitor would not incur any penalty by not bringing mweaka, he would almost certainly suffer the admonishment of his own conscience.

It follows from what 1 have said that I regard the custom of mweaka in the maneaba as obligatory in the sense of being morally binding on a visitor.

(iv) WAS THE RESPONDENT A VISITOR?

I am satisfied on the evidence that the Respondent was a genuine visitor to those maneabas he visited on the various islands. His visits were pre-arranged by the Clerk of the Island Council and were accepted by the unimane of the villages he visited. At each village he was welcomed and invited into the maneaba. There is no evidence of any incident in which he was not invited into a maneaba and no evidence that any of his visits were opposed in any way.

(v) THE AMOUNT OF MWEAKA - REASONABLE OR EXCESSIVE?

Counsel for the Appellant argues that the Respondent, if he were truly just complying with custom, need only have given one stick of tobacco.
It is clear on the evidence that there is no minimum amount applicable to the custom of mweaka.

Small amounts of one stick of tobacco, or even less, seem acceptable for presentation at a shrine, where no other people are involved in the ceremony. On the other hand, the same amount presented to a maneaba where there are say 50 people would be obviously inadequate.

The fact that there is no fixed minimum amount does not mean that a visitor should not use his common sense when presenting mweaka. It is a well-known part of the custom that the tobacco is afterwards shared out to the people in the maneaba and sometimes, if there is enough, to the households in the village. To present one stick of tobacco to a crowded maneaba might constitute a technical observance of the custom but in my view such a diminutive offering would probably be insulting to those receiving the visitor unless he was known as a poor man.

As to the question of what is an acceptable amount to present as mweaka, I am satisfied from the evidence of the Respondent and his witnesses (RW2, RW5, RW6, RW7, RW8, RW11, RW12, RW13, RW14 and RW19) that the amount of mweaka commonly recognised as standard in the maneaba is one block of tobacco, the cost of which is $20.00.

I accept the Respondent when he says that his government's attitude to mweaka is no different from that of the previous Government, that is, that public servants travelling to the islands are entitled to claim expenses for one block of tobacco per maneaba.

RW 12 Noaa remembers seeing the Petitioner when he was Beretitenti present one block of tobacco. RW 13 saw two other presidential candidates each present one block of tobacco. RW 14 saw the Petitioner give one block of tobacco before he was elected Beretitenti. He also saw two other presidential candidates each present one block of tobacco. He has also seen another former Beretitenti and a former Vice President each present one block of tobacco. RW 19, the current Vice President, said that when he presents mweaka it is one block of tobacco.

I do not. doubt the Respondent when he says that he had originally planned to present one block of tobacco at each maneaba and that he had managed to do so in a lot of maneabas but eventually had to compromise because of lack of funds. It is submitted for the Petitioner that the inconsistency in the amounts of mweaka presented at the various maneabas imports a sinister motive, particularly when it is considered that no mweaka at all was given at one village. I do not agree with this argument. I accept that the differences in the amounts of mweaka presented were not planned but were brought on by necessity. I accept also the Respondent's explanation that when he reached the village referred to he had run out of tobacco.

The evidence of both sides makes it abundantly clear that none of the Respondent's presentations of mweaka to a maneaba ever exceeded what is commonly regarded as the standard amount.

(vi) WHAT DID THE RESPONDENT SAY?

Counsel for the Petitioner submits that the Respondent did not tell the people at the maneabas not to be influenced in their vote by his mweaka which was presented in accordance with custom and not as part of his campaign.

The Respondent gave evidence that he said words to that effect in every maneaba. His evidence was corroborated by ten witnesses (RW2, RW3, RW5, RW8, RW10, RW12, RW14, RW15, RW16 and RW18) who were present at the various meetings. There was another witness, RW9 laruru, but I did not believe he had any memory at all of what had been said.

Only one of the Petitioner's witnesses (PW 12 Tewaki) was prepared to admit that he had heard the Respondent say those words. However, PW3 Tekateke in cross-examination was persuaded to admit that in the presidential campaign of 1987 the Respondent had explained when presenting his mweaka that it was part of the custom. PW11 Teatao was the Chief Councillor of the Island Council of Beru. He was present in four maneabas where the Respondent presented mweaka. In his evidence in chief he said that all he heard the Respondent say was that he wanted to be elected. However, in cross-examination he conceded rather begrudgingly that at Aoniman he also remembered the Respondent explaining to the people that moanei was part of the custom. He also conceded the Respondent could have said more at the other three villages but he does not know as he was not paying attention.

On this issue I preferred the evidence of the Respondent's witnesses. I find as a fact that at each maneaba visited by the Respondent he explained to the people that his mweaka was presented in accordance with custom and was not meant to influence their vote in the election.

(vii) PRECEDENT

Counsel for the Petitioner submits that I ought to follow the decision of Muhammad C.J. in TEIWAKI & ORS v. TENIEU (HCCC No. 25 of 1991) which avoided the election of the respondent in that case on the grounds of bribery and illegal practice. That decision does not appear to be applicable to the present case. In that case there were four specific allegation concerning the respondent's giving of tobacco. Two instances involved the giving of tobacco inside a maneaba to which the respondent had not been invited and to which he was not a visitor as he lived locally. The other two instances involved the giving of tobacco not in the maneaba, but elsewhere. The learned Chief justice obviously found those allegations proved. Gifts of tobacco in those circumstances would have had nothing to do with the custom of mweaka. That case can therefore be distinguished from the present one.

However, the learned Chief Justice did express some views on the custom of mweaka which I decline to follow. In particular, I decline to follow his finding that mweaka is analogous to a charitable gift.

It is interesting to note that the learned Chief Justice considered the meaning of "mweaka" on the basis of an erroneous dictionary definition that was apparently cited to him. The dictionary referred to is the Gilbertese-English Dictionary originally compiled in French by Father E Sabatier and translated by Sister Oliva.

The definition as it appears in the learned Chief Justice's judgment is as follows:

"'Mweaka' according to this dictionary means "A gift presented to person visited after long absence, to a new host, formally to a spirit of dwelling or country visited, v, to make an offering". A great deal of interesting evidence has been given on the subject and I believe that mweaka is a customary gift, that it has been a recognised Kiribati custom and has existed from times immemorial. The recognised purpose of the gift is what the dictionary says and is akin to a religious ritual. It is supposed to bring blessings on to the giver of the gift and is gratefully received by the donee. I have no doubt that over the years the term "mweaka" has come to be abused".

I underline "formally" because that is where the error is. The correct word should have been "formerly". When that word is read into the definition it indicates that "mweaka" has a different meaning today from its original meaning.

I wonder whether Muhammad C.J. would have concluded that "over the years the term 'mweaka' has come to be abused" had the dictionary been cited correctly?

(viii) MWEAKA AND THE LAW

It is true that in some countries handing out tobacco at meetings on the eve of an election would lead to an irresistible inference that the candidate did it to attract votes. Counsel for the Petitioner has cited Halsbury's Laws of England where it is stated that - "If the act of bribery is committed shortly before the poll the act will be assumed to .be bribery until the contrary is shown".

It should be remembered that England and other western countries do not have any parallel situation to Kiribati at election time when the question of compliance with custom arises.

What the Elections Ordinance forbids are corrupt practices, not compliance with custom. A genuine intention to comply with custom is not an intention to induce electors to vote or refrain from voting and so is not contrary to the election laws.

There is no law in Kiribati which requires custom to be suspended at election time. A custom either exists or it does not. If it exists then it ought to be respected at all times. Any custom that can be ignored at will is meaningless.

In the preamble to the Constitution - the supreme law of Kiribati - the people of Kiribati pledge to cherish and uphold the customs and traditions of Kiribati. The lessons of history show that the price to be paid for failure to do so is a heavy one - the loss forever, of a national identity and way of life.

The Elections Ordinance does not present an obstacle to the showing of due respect for custom. The two are not inconsistent. A candidate in an election cannot be found guilty of a corrupt practice if his only intention was to comply with custom. No inference of a corrupt intention ought to be drawn solely because a candidate presents mweaka in a maneaba. On the other hand, suspicions as to his motives would naturally be aroused if he gives an excessive amount, or gives money or quantities of goods other than the customary tobacco, or if his presentation is not in accordance with custom in some other respect. In those circumstances he may well find himself in the position of having to rebut an inference that his real intention was to corruptly influence the voters. But where a candidate presents mweaka in a maneaba in the customary manner and the mweaka is no more than the usual or standard amount as mentioned earlier, there is no reason why this alone should foster the inference of a corrupt intention or cause his political opponents to go running to the courts.

(ix) THE RESPONDENT'S INTENTION

In his speech to Parliament the Respondent acknowledged that I-Kiribati are very emotional people who could be influenced by an act of kindness. I accept that the Respondent attempted to counter this feeling by saying to the people in the maneabas he visited that his mweaka was for custom only and that it should not influence the way they wished to vote. In fact, not one of the 36 witnesses who gave evidence in this case testified that he was influenced to vote for the Respondent because of the mweaka, although several of the petitioner's witnesses coyly stated that they had felt indebted.

It is true that in order to prove an intention to bribe it is not necessary to prove that the people were actually influenced. Nevertheless, if a voter does not vote for the Respondent who is alleged to have influenced him, that is evidence that the voter was not influenced (Lichfield Election Petition (1869) 1 O'M & H 22). I cannot accept that a normal person would feel a need to vote for a candidate after having been specifically released from any obligation to do so. I infer from the fact that not one witness was able to say that the Respondent's mweaka bought his vote that what the Respondent said to the people had the desired effect.

I have already mentioned that it is the intention behind the giving of the mweaka that is all important. If the Respondent had given large quantities of tobacco, or if other goods or money had been given, then there would be a strong inference that he intended to induce the people to vote for him.

Today, the accepted form of mweaka according to custom is tobacco, and that was the only commodity presented by the Respondent to the maneabas he visited. The amount given was never more than one block and often less. The Respondent had no say in how the tobacco would be divided, although he knew that it would normally be shared among those present in the maneaba and perhaps among the households of the village. On some occasion those in the maneaba ended up with a diminutive amount of tobacco - less than a little finger in length - and on other occasions their share was one or two sticks. Whatever the individual share turned out to be, it cannot be said that the amount of tobacco presented by the Respondent was excessive, or even substantial. A single block of tobacco is, in my view, not much more than a token of the custom it represents when given to a gathering of people in the maneaba (see the evidence of PW4 for the dimensions of a block of tobacco). While the Respondent's mweaka was sufficient to comply with custom, the size of the individual shares would not in my opinion be likely to influence a voter. And in case there was any chance of that happening, the Respondent took the precaution of explaining his purpose in presenting the mweaka.

I accept the Respondent's evidence that he has a history going back many years of observing the custom of mweaka when he visits a maneaba. His usual practice is to present much more tobacco than he did during his election campaign. So his compliance with custom was not just an inclination that developed around the time of the approaching election.

I formed the impression from listening to the Respondent that he is a well-educated man who has a deep respect for the customs and traditions of Kiribati. In this regard he can correctly be described as a traditionalist. His background and personal behaviour are strong support for this view. I thought that his 1991 Parliamentary speech went very much to his credit. (The speech is set out in the evidence of PW 17). In that speech he demonstrated a genuine concern that the customs and traditions of Kiribati be preserved and not exploited for mercenary motives.

It is simply not plausible that the Respondent, being an intelligent man who knows Kiribati custom and who is not unfamiliar with election petitions, would blatantly set out on a wide-scale campaign of bribery. I am not satisfied that it has been proved on the balance of probabilities that he had the deliberate intention of corruptly influencing electors to vote for him. On the contrary, the evidence clearly preponderates in favour of the conclusion that he did no more than was necessary to comply with custom. I therefore find that section 24(a) of the Elections Ordinance has not been contravened and that the Respondent has not been guilty of any corrupt practice.

I mentioned earlier that counsel for the Respondent also argued a point of law. Having found as I have, it is not now necessary for me to decide that question.

The petition fails. The election is confirmed and a certificate that the Respondent was duly elected as the Beretitenti of the Republic of Kiribati will be sent to the Electoral Commission forthwith.

The Petitioner is ordered to pay the costs of the Respondent as agreed upon or taxed.

THE HON R LUSSICK
Chief Justice
(28/02/96)