Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 226
N730
PAPUA NEW GUINEA
[LEADERSHIP TRIBUNAL]
IN THE MATTER OF A REFERENCE BY THE PUBLIC PROSECUTOR UNDER SECTION 27(2) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP AND IN THE MATTER OF KEDEA URU
Waigani
Bredmeyer J (Chairman) Oli SM Seneka SM (Members)
10-12 July 1989
20 July 1989
CONSTITUTIONAL LAW - Leadership Code - Misconduct in office - Allowing “integrity” to be called in question - Diminishing respect for “integrity” of government - Whether actions dishonest - Receipt of rental allowance to which not entitled - Chairman of NBC - Guilt not established to reasonable satisfaction - Recommendations for repayment of monies received - Constitution, s 27(1)(c), (2) - Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), s 27(2).
STATE SERVICES - Statutory authorities - Leadership Code - Chairman of NBC - Misconduct in office - Allowing “integrity” to be called in question - Diminishing respect for “integrity” of government - Whether actions dishonest - Receipt of rental allowance to which not entitled - Guilt not established to reasonable satisfaction - Recommendations for repayment of monies received - Constitution, s 27(1)(c), (2) - Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), s 27(2).
The Constitution, s 27, relevantly provides:
“27.    Responsibilities of office
(1)      A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not:
...
(c)      to allow his public or official integrity, or his personal integrity, to be called into question; or
(d)      to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.
(2)      In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).”
The Chairman of the National Broadcasting Board, a statutory body set up by the Broadcasting Commission Act (Ch No 149), was charged, inter alia, with misconduct in office in that he improperly received rental allowances of K350 per week to which he was not entitled while he was a tenant in a National Broadcasting Commission house and that, in receiving the rental, he was in breach of s 27(1)(c) and s 27(2) of the Constitution.
The evidence revealed that the Chairman had applied for and received a housing allowance (to which he was not entitled) amounting to K25,900 over a period of eighteen-and-one-half months.
Held
(1)      For the purposes of s 27(1)(c) and s 27(2) of the Constitution “integrity” is to be equated with “honesty”, and lack of integrity with dishonesty.
(2)      In the circumstances, the question to be determined by the Tribunal to its reasonable satisfaction was whether the Chairman had been guilty of any dishonesty or lack of integrity in applying for or in receiving the rental allowance.
In re James Eki Mopio [1981] PNGLR 416 at 420-421, applied.
(3)      (Member Seneka SM dissenting) In the circumstances, the Chairman had not been guilty of any dishonesty or lack of integrity and the offences had not been made out.
(Per the Tribunal) In the public interest the Tribunal recommended that the Chairman enter into an agreement with the National Broadcasting Commission to the effect that he vacate the house in question and go to live in his village house and forgo any rental allowance for a period of eighteen-and-one-half months with the proviso that if he failed to do so his appointment as Chairman should be terminated.
Cases Cited
In re James Eki Mopio [1981] PNGLR 416.
Reference
This was the hearing and determination of a reference by the Public Prosecutor pursuant to s 27(2) of the Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), of two charges of misconduct in office.
Counsel
I Owusu-Sechere, for the Public Prosecutor.
L Gavara-Nanu, for Kedea Uru.
Cur adv vult
20 July 1989
BREDMEYER J OLI SM: Mr Kedea Uru is the Chairman of the National Broadcasting Board, a statutory body set up by the Broadcasting Commission Act (Ch No 149). He was given that appointment in 1985. As Chairman, he is the Executive Officer of the National Broadcasting Commission (the NBC). He has been in broadcasting all his life. In June 1986, the National Executive Council approved “a net rental allowance of K350 per week be payable to constitutional office holders and heads of departments”. In December 1986, the Salaries and Conditions Monitoring Committee met and decided that heads of statutory bodies should also benefit from this housing allowance in the same way as constitutional office-holders and departmental heads. In an explanatory circular SCMC 1/87, dated 13 February 1987, the then chairman of that committee, Mr Paul Songo, explained the rationale for this allowance:
“The rationale being that this would encourage those appointees whose positions entitle them to reserve houses as part of their conditions of service, to remain or move to their own houses to free reserve houses for further allocations etc.”
In a later circular SCMC 2/87, dated 6 August 1987, addressed to heads of statutory authorities, Mr Songo, as chairman of the committee, explained that the allowance ceased for those heads of statutory bodies occupying official accommodation but would continue for those who had moved out of an institutional house. That circular reads as follows:
“APPLICATION OF HOUSING ALLOWANCE
The decision of the National Executive Council to apply the Housing Allowance to Departmental Heads and Constitutional Office-Holders was designed to encourage them to purchase their own houses.
At its meeting dated 29 May 1987, the Committee noted that Heads of Statutory Authorities are normally provided with official accommodation by their respective institutions. The houses provided are attached to the respective positions, and, are therefore not for sale.
As a result, the Monitoring Committee decided that the payment of the Housing Allowance of K350 per week will now no longer apply to Heads of Statutory Authorities. This decision takes effect on and from 31 July 1987.
However, where a Head of a Statutory Authority has under the previous decision ceased to occupy an institutional house, then that officer shall continue to enjoy the K350 per week Housing Rental Allowance.”
Mr Uru wanted to take advantage of this allowance, so, on 18 August 1987, he moved into an NBC house at Badili or Koki Point, Allotment 66, Section 6, Koki. The house is two-bedroomed, made of wooden walls, louvres and an iron roof. It is about 30 or 40 years old and in a somewhat dilapidated condition. It does not have a security fence but it is in a nice location with a good view of the water. It was valued at K52,700. Mr Uru wanted to buy this house and the National Broadcasting Board approved of that desire. Nevertheless, the NBC did not have a home ownership scheme in operation at that time although they were busy preparing such a scheme to parallel the scheme brought into operation in 1986 for the sale of government houses to public servants. The scheme was not in operation because the Broadcasting Commission Act needed to be amended first. Mr Uru moved into the Badili house as a tenant and signed a tenancy agreement with the NBC at a rental of K24 per fortnight. He paid the public utility charges and the electricity charges. On 2 October 1987, he wrote to Mr Wep Kanawi, the chairman of the Salaries and Conditions Monitoring Committee, asking if he was eligible to receive the K350 per week housing allowance. Receiving no reply to that letter, he wrote a similar letter on 4 November 1987. That letter is very important and we reproduce it in full.
“P.O. Box 1357
BOROKO, PNG
from the office of the chairman
Our Ref: 5-12-14/5-1-390
04 November 1987
Mr Wep Kanawi
Chairman
Salaries & Conditions Monitoring Committee
P O Wardstrip
WAIGANI
Dear Mr Kanawi
RE: APPLICATION OF HOUSING ALLOWANCE
This letter is a response to the Circular Instruction No 2/87 of 6 August 1987 concerning the above.
As of 18 August 1987, I moved into an NBC residence at Badili with the objective of buying the house. At its meeting at Kieta recently, the Board approved the request to allow the Chairman and Deputy Chairman to enter the NBC Home Ownership Scheme.
Under the Scheme, an officer has to be a sitting tenant before he is qualified to buy a house.
The houses including the Chairman’s official residence at Wonga Estate are reserved houses and are not up for sale. On that understanding, I moved into the NBC residence at Badili after filling in the necessary forms under the Home Ownership Scheme. I am currently paying the rent and Public Utilities charges out of my own pocket.
A Circular Instruction dated 6th August 1987, Subject: Application of Housing Allowance — the last paragraph states and I quote, “However, where a Head of a Statutory Authority has under the previous decision ceased to occupy an institutional house, then that officer shall continue to enjoy the K350 per week Housing Rental Allowance” unquote.
Since I left my own house in the village and moved into an NBC house at Badili with the intention of buying the property under the Home Ownership Scheme, I was wondering whether I would still be entitled to receiving the K350 per week Housing Rental Allowance.
I would appreciate your advice on this.
Kindest regards
Yours sincerely
KEDEA K URU
Chairman
KKUdl
cc Mr K ToMarum
Secretary
Department of Justice
Central Government Offices
P O Wardstrip
WAIGANI”
The matter came before the Committee at its meeting on 25 February 1988. The minutes of that meeting read as follows:
“NBC Chairman
Rental allowance approved (although submission has yet to be presented to SCMC) effective from date of occupation of own accommodation within Port Moresby.”
On 5 April 1988, Mr Kanawi, as chairman of the SCMC, wrote to Mr Uru as follows:
“Rental Allowance
Reference is made to your letter of November 1987 regarding above.
I am pleased to advise that SCMC at its meeting of 25 February 1988 has endorsed the payment of rental allowance to be made to you, effective as from 18 August 1987, subject to taxation law.”
On receipt of that letter, Mr Uru instructed his director of finance to pay him the rental allowance. This was done and the initial payment backdated to 18 August 1987 came to K11,900. He continued to get the allowance of K350 per week which was paid in the form of K1,400 per month until the end of February 1989 when the allowance ceased as a result of the Ombudsman Commission’s investigation. Mr Uru thus received the allowance from mid-August 1987 to the end of February 1989, a total of K25,900 received over eighteen-and-a-half months.
The Ombudsman Commission investigated this matter and considered that Mr Uru was guilty of misconduct in office. Mr Uru, as head of a statutory authority, is a leader to whom the Leadership Code sections of the Constitution apply by virtue of s 26(1)(g) of the Constitution. Accordingly, it referred the matter, together with a statement of the reasons for its opinion, to the Public Prosecutor under s 27 of the Organic Law on the Duties and Responsibilities of Leadership (Ch No 1). The Public Prosecutor in turn referred two charges to us which are as follows:
“(1)    That MR KEDEA URU, Chairman of the National Broadcasting Commission improperly received rental allowances of K350.00 per week while he was a tenant in a National Broadcasting Commission house at Badili, Port Moresby, in the National Capital District. AND THAT at the time of receiving the said rental allowances of K350.00 per week, the said KEDEA URU, Chairman of the National Broadcasting Commission, was not a person entitled to receive such allowances in accordance with the terms of a Decision of the National Executive Council, as explained and interpreted by a Salaries and Conditions Monitoring Committee Circular, and in so receiving such rental allowances as aforesaid, he derived personal gains from his office and thereby allowed his public or official integrity or his personal integrity to be called into question, contrary to the provisions of Section 27(1)(c) of the Constitution.
(2)      That the said MR KEDEA URU, Chairman of the National Broadcasting Commission improperly received rental allowances of K350.00 per week while he was a tenant in a National Broadcasting Commission house at Badili, Port Moresby, in the National Capital District, and thereby used his Office for personal gain and engaged in an enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he was carrying out the duty imposed by s 27(1) of the Constitution, contrary to s 27(2) of the Constitution.”
The charges are laid under s 27(1)(c) and s 27(2) of the Constitution which read as follows:
“27.    Responsibilities of office
(1)      A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not:
(a)      to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or
(b)      to demean his office or position; or
(c)      to allow his public or official integrity, or his personal integrity, to be called into question; or
(d)      to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.
(2)      In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).”
A number of documents were tendered to us without objection by counsel for the Public Prosecutor and by counsel for Mr Uru. We consider that we have a full record of the relevant correspondence and documents which relate to this matter. Mr Wep Kanawi gave oral evidence before us as did Mr Joseph Korau, the director of the Secretariat of the NBC, and Mr Uru. Although there is some conflict in the oral evidence, which we mention later, the primary facts are not in dispute and come almost entirely from the documentary evidence.
ENTITLEMENT TO RECEIVE THE RENTAL ALLOWANCE
The first charge alleges that Mr Uru was not entitled to receive the allowance of K350 per week and both charges allege that he “improperly” received the allowance. Was he entitled to receive the housing allowance? We examine that question first. The June 1986 decision of the National Executive Council approving the housing allowance of K350 was confined to constitutional office-holders and departmental heads. It was extended to the heads of statutory bodies by the SCMC and we have quoted, or quoted from, its only two circulars on the subject, No 1 and No 2 of 1987. These circulars are lacking in detailed criteria as to entitlement to the allowance, but from them, and from other evidence, we consider that the following rules are clear.
1.       The head of a statutory body is entitled to the allowance if he rents a house privately. In the first SCMC circular 1/87, the allowance is called a rental allowance in one place. We consider that the allowance was fixed at K350 a week to enable a head of a statutory body to pay commercial rent on a private house of suitable standard for a head. The allowance thus enabled a head to rent a suitable private house and at the same time freed the official house which he formerly occupied for sale to, or lease, by, another officer.
2.       The head of a statutory body is entitled to the allowance if he lives in his own private house, for example, a village house or a house he has purchased in the city.
3.       The head of a statutory body is entitled to the allowance if he lives in a house which he is buying from his statutory body. That is an extension of the second rule to a house which he is in the process of buying.
4.       The head of a statutory body is not entitled to the rental allowance for a house which he is leasing from the statutory body.
The rules are the same for constitutional office-holders and departmental heads.
There is a good reason for rule 4 and it is well illustrated by Mr Uru’s case. He was renting the Badili house from the NBC at K24 per fortnight, that is, K12 per week. The rental allowance was K350 per week. As we have said, that allowance was deliberately fixed as being adequate to rent a private house of suitable standard in Port Moresby. It therefore seems patently ridiculous to pay K350 per week to a man to enable him to pay rent of K12 per week. Mr Gavara, counsel for Mr Uru, asked us to feel the “plight” of his client — who had moved out of his official residence at Wonga Estate Five Mile, which was provided rent free and with free electricity and public utility services, and moved into the Badili house where he had to pay for all three. We were not impressed by that argument. A rental of K12 per week is very cheap for a house valued at K52,700 and a payment of K350 per week is a gross over-compensation for a rent of K12 per week. Moreover, the allowance was never intended to cover public utility and electricity charges. We do not think that the rent of K12 per week is unfairly onerous on a man used to rent-free living and we note in passing that he received other allowances on top of his salary not enjoyed by the great bulk of employees of statutory bodies. For example, in 1988 and 1989, he received a motor vehicle allowance of K39.87 per fortnight which was in addition to a free official car. Presumably that vehicle allowance went towards the running and maintenance of his private car. We also note in passing that he received a “Chairman’s allowance” of K76.87 per fortnight. We have not explored the purpose of this allowance but we note from the papers before us that it was in addition to an entertainment allowance. We also note that he received payments for four overseas trips between November 1987 and May 1988.
We are firmly of the view that Mr Uru was not entitled to the housing allowance. The prosecution have thus proved the first element of each charge. Because he was not entitled to the housing allowance he is therefore legally and morally obliged to pay it back. By receiving that allowance he received K25,900 over a period of eighteen-and-a-half months to which he was not entitled.
MR URU’S INTEGRITY
We now turn to the second element of the charges. The nub of the second element of the first charge is that by obtaining that allowance Mr Uru thereby allowed his “public or official integrity ... to be called into question”. They are the relevant words of the offence established by s 27(1)(c) of the Constitution. Was Mr Uru guilty of that? The second element of the second charge is much the same. Did his gaining of that money “give rise to doubt in the public mind that his official integrity was being called into question”, or did it “diminish respect for and confidence in the integrity of government in Papua New Guinea”? We are here quoting key phrases from s 27(1) and (2) of the Constitution. We consider that these charges are directed at the same conduct.
“Integrity” is defined in the Concise Oxford Dictionary as “wholeness, soundness, uprightness, honesty”. The key issue in this second element of each offence is really Mr Uru’s integrity. In getting this money, was his integrity called into question? Of the dictionary meanings we consider the most apposite synonym is honesty. We consider that integrity equates with honesty and that the opposite of integrity is dishonesty. In simple terms — but we think not in over-simplified terms — the issue boils down to this: did Mr Uru get the allowance dishonestly?
The first point we make in answer to that question is that Mr Uru did not simply direct his staff to pay him the allowance when he moved into the Badili house. He applied for a ruling on his entitlement to the allowance from the SCMC and he waited until that ruling was given. He acted perfectly honestly in so doing.
Secondly, the ruling itself was clear, unequivocal and unconditional. It is contained in Mr Kanawi’s letter of 5 April 1989 which we quote again:
“Rental allowance
Reference is made to your letter of November 1987 regarding above.
I am pleased to advise that SCMC at its meeting of 25 February 1988 has endorsed the payment of rental allowance to be made to you, effective as from 18 August 1987, subject to taxation law.”
That ruling was given as a result of Mr Uru’s letter of 4 November 1987 which we have reproduced in full. The third matter we look at is whether Mr Uru gained that approval through a dishonestly worded letter of application. We consider that most of the information contained in that letter is absolutely true: for example, that the Board of the NBC had approved his request as Chairman to enter into the NBC’s Home Ownership Scheme; that in order to buy a house he had first to become a tenant of it; and that he was paying rent for the house. Some parts of the letter are not true. For example, he refers twice to the NBC’s “Home Ownership Scheme” and once to the “Scheme” meaning the same thing. In truth, the scheme was only a proposed scheme. The NBC needed first to get its Act amended; that was for valid legal reasons which need not concern us here. The proposed scheme was not in force at the time and is still not in force because the Broadcasting Commission Act has not yet been amended. So it was wrong of him to refer to the proposed scheme as the Home Ownership Scheme, implying that it was already in force. Yet Mr Uru’s mistake on that was shared by other NBC officials. The minutes of its meeting held at Tinputz on 5 June 1987, attended by twelve officials and members of staff, referred to it as the NBC’s Home Ownership Scheme. Other documents were tendered to us from the NBC all referring to it as the NBC Home Ownership Scheme. For example, on 28 July 1987, Mr Joseph Korau, describing himself as the co-ordinator of the Home Ownership Scheme, addressed a standard four-page letter to the Chairman headed “Home Ownership Scheme” and the letter commenced: “The house that you currently occupy is to be offered for sale to you subject to Board approval.” The letter went on to give four pages of detailed conditions applicable to the Home Ownership Scheme and invited a response from the recipient to say whether he wished to purchase the house or whether he declined to do so. That letter was sent to the Chairman a few weeks prior to him entering the Badili house. Nevertheless, the point we are making here is that it referred to the NBC’s Home Ownership Scheme and invited participation in it although the scheme needed legislative amendment to the Broadcasting Commission Act before it could be really implemented. The NBC staff were so keen to implement the scheme and gain the benefits of it that they prepared all the necessary forms in advance and sent them off and had them completed in advance so that, when the scheme came into force, they would be ready to implement it without delay.
The standard of proof in the Leadership Tribunal cases has been established by the Supreme Court in In re James Eki Mopio [1981] PNGLR 416 at 420-421:
“All of the above tests may well be useful but in our view there is no absolute degree or standard of proof to be applied by the Leadership Tribunal. The Tribunal must be reasonably satisfied of the truth of the allegations or denials. In reaching such a conclusion it must give full weight to the gravity of a charge of misconduct in office by a person subject to the Leadership Code, the adverse consequences which follow and of the duty to act judicially and in compliance with the principles of natural justice. In practical terms the standard is not as high as the criminal proof beyond reasonable doubt but in our opinion, the very nature of the offence of misconduct in office created by the Constitution and the Organic Law on the Duties and Responsibilities of Leadership, will require a higher standard of proof than that ordinarily applicable in civil cases, namely proof on a balance or preponderance of probabilities. In matters involving accusations amounting to criminal conduct, the standard must be close to that applicable in a criminal trial.”
We apply that standard to this particular issue. Given that Mr Uru is not a lawyer and cannot be expected to know legal niceties as clearly as a lawyer, and given the fact that other officials in the NBC referred to the proposed scheme as the “Home Ownership Scheme”, we do not consider that Mr Uru has been deliberately dishonest in referring to the Home Ownership Scheme in his letter of 4 November 1987.
The fourth matter we examine is whether Mr Uru did anything dishonest between sending the letter of application of 4 November 1987 and getting the letter of approval from the SCMC on 5 April 1988. Counsel for the Public Prosecutor argued that Mr Uru had been told that he had to supply home ownership documents before approval for the allowance could be given. That argument is based on Mr Kanawi’s evidence given in a statutory declaration dated 20 April 1989:
“The Executive Officer made a verbal request to NBC officials that the Home Ownership documents be provided to the SCMC in support of the Chairman NBC’s letter. The Chairman SCMC also had a verbal understanding with the Chairman NBC that he would provide the Home Ownership documentation.”
In elaboration of these statements, Mr Kanawi, in his sworn evidence to us, said that the SCMC directed its executive officer, Miss Julie Palaso, to get the documents from Mr Uru or the NBC staff. Mr Uru denied ever having received such a request from Miss Palaso as also did Mr Joseph Korau, a senior NBC official who was in charge of its Home Ownership Scheme. Miss Palaso is in Scotland and was thus not available to give evidence to us. Mr Kanawi also said in his sworn evidence that he told Mr Uru to bring in the Home Ownership documents so that he could see if Mr Uru was entitled to the allowance. Mr Uru denied ever having received such a request from Mr Kanawi. All three witnesses, Messrs Kanawi, Uru and Korau, impressed us in their oral evidence. We are unable to say from their answers or demeanour that any one of them is lying. It is thus one witness, Mr Kanawi, against two, Messrs Uru and Korau, and given the high standard of proof applicable, which we have already mentioned, we are not satisfied that Mr Uru was told that the approval of the housing allowance was conditional on him producing home ownership documents to the SCMC.
We suspect that Mr Kanawi did not see the issues as clearly at the SCMC meeting of 25 February 1988 as he does now with the benefit of reflection upon the facts of this case. We say that because the minutes of that meeting do not clearly say what Mr Kanawi said to us. To us he said:
“I knew that Mr Uru wanted to buy the house but I was trying to verify if the NBC had a home ownership scheme and I also wanted to know if he had entered into an arrangement to buy the house to qualify for the allowance.”
That statement imposes two conditions on approval of the allowance, but those conditions were not spelt out in the minutes which state:
“NBC Chairman
Rental allowance approved (although submission has yet to be presented to SCMC) effective from date of occupation of own accommodation within Port Moresby.”
We asked what “submission” is referred to in those minutes? If the approval was conditional on the NBC having a Home Ownership Scheme and on Mr Uru being a purchaser under that scheme, why not spell it out? Why not use the words “subject to” instead of “although”? For example, the minute could have read: “Rental allowance approved subject to submission of the NBC’s Home Ownership Scheme and of sale documents to Mr Uru.”
We think the minute is unclear as to its meaning. Whatever it meant, it was not sent to Mr Uru and we consider that he was not told of the necessity to follow up his application by a submission to the SCMC. Following the meeting of 25 February, Mr Uru took no further steps to advance his case. He did not lobby with the chairman of the SCMC or with any of its members, or its executive officer. If the minute of the February meeting did not accurately reflect Mr Kanawi’s and the committee’s concern over Mr Uru’s eligibility for the allowance, the letter of approval was even further removed from those concerns. It was an unequivocal, unconditional approval of the allowance. Mr Kanawi explained to us how that letter came about. He said that, following normal practice, the letter was written by the executive officer of the committee, Miss Julie Palaso, although her name or initials do not appear on it. Mr Kanawi signed the letter quickly without reading it for content. He said he sometimes signs 300 to 400 letters a day. He skims through them to check for grammatical errors but does not have time to check them for content. Thus he signed this letter without checking it against the minute of the February meeting, or against his recollection of what the committee decided at that meeting. He said that Miss Palaso is a good, experienced and reliable worker whose work can be trusted. That assessment may in general terms be correct, but in this case she erred and the letter does not agree with the minutes, nor with what really happened at the meeting according to Mr Kanawi’s evidence on that. There is no evidence or suggestion that Mr Uru in any way caused Miss Palaso’s favourable letter to be written.
When Mr Uru received Mr Kanawi’s letter of approval of 5 April 1988, he arranged for the allowance to be paid to him by his staff. We consider he was entitled to act on that letter and we see no reason why he should have queried it. We consider that Mr Uru has not been guilty of any dishonesty or lack of integrity in gaining the approval of the SCMC to the housing allowance. The prosecution has thus failed to prove the second element of each offence and we thus find Mr Uru not guilty of those offences.
RECOMMENDATIONS FOR REPAYMENT OF THE MONEY
We have found Mr Uru not guilty of the two charges and that is the end of our official function as a Tribunal appointed under the provisions of the Organic Law on the Duties and Responsibilities of Leadership. Nevertheless, we feel constrained in the public interest to go on and make a recommendation as to how this money should be repaid by Mr Uru. Occasionally judges and tribunals make such recommendations in the hope that their well-informed and impartial views will be seriously considered by the authorities. Thus, for example, it is not uncommon for a judge at the conclusion of a judgment to make a recommendation to the executive or to the Parliament that the law should be changed. It is, of course, entirely up to those authorities whether the recommendation is accepted or not.
In this case Mr Uru received K25,900 housing allowance over an eighteen-and-a-half-month period to which he was not entitled. He received it primarily through a mistake made by the Salaries and Conditions Monitoring Committee. It therefore seems right to us that he should repay the money. Under s 28(5) of the Constitution, the proceedings of a leadership tribunal are not a bar to other proceedings provided for by law. This means that the NBC can sue Mr Uru for that sum and obtain a judgment against him. We have examined Mr Uru as to his assets and income and, if such a judgment was obtained, Mr Uru has no assets immediately available to repay the sum. He would therefore have to repay the sum at say K100 to K200 per fortnight. Mr Uru has a large family and the court is unlikely to order him to pay more than, say, K200 per fortnight. At that rate it would take Mr Uru about five years to repay the sum. He is now aged 48 and, if at some time in the future he should retire or otherwise lose his present position, the repayments may cease. We regard such a method of recovery of such a large sum and over such a long period as likely to be unsuccessful and unsatisfactory.
We recommend a better way of recovering the money. Mr Uru has a private house at Gabagaba village. He told us that it is worth about K30,000. He lived in that house for several months in 1987 and received the rental allowance for it and at the same time retained his official residence. His actions in so doing caused fuss at the time and adverse exposure in the newspaper. No charges arose out of those circumstances and we have not considered them in any detail in this case. Suffice it to say here that the village house is a reasonably adequate one. Also since moving into the Badili house Mr Uru has spent a fair amount of the K25,900 paid to him in improving the Gabagaba house. We propose that Mr Uru goes and lives in his Gabagaba house for a period of eighteen-and-a-half months and that during that period he forgo the rental allowance. If Mr Uru vacates the Badili house and moves his village house he is clearly entitled to receive a rental allowance of K350 per week. We consider that he should move into that house and not receive the rental allowance for eighteen-and-a-half months and his non-receipt of that allowance, to which he would otherwise be entitled, would cancel out the receipt of K25,900 which he received between mid-August 1987 and the end of February 1989, to which he was not entitled. We propose that Mr Uru enter into an agreement to that effect with the NBC Board and with the SCMC and if he fails to do so his appointment as Chairman should be terminated.
We note that Mr Uru was appointed as Chairman of the Board initially for a three-year period commencing on 22 July 1985. He was later appointed as acting Chairman of the NBC as from 23 July 1988. That appointment is found in the National Gazette G2 of 5 January 1989, p 4. Mr Uru has thus enjoyed the position of Chairman for about four years. His present appointment is open ended. Under s 16 of the Broadcasting Commission Act (Ch No 149), the Chairman is appointed by the Head of State acting on advice and is appointed for such period as the Head of State acting on advice determines. Thus Mr Uru will continue to hold the appointment until the Governor-General acting on the advice of the National Executive Council decides to terminate his appointment. We consider that the proposal we have made for recovering the K25,900 wrongly paid to Mr Uru is a fair and reasonable one. We consider that Mr Uru should agree to it in writing and act on it, that if he does not his acting appointment as Chairman should be terminated. We make that recommendation to the National Executive Council and to the Governor-General.
SENEKA SM: I have the misfortune of dissenting from my colleagues and now set forth my reasons.
The charges are laid under s 27(1)(c) and s 27(2) of the Constitution. The Chairman of the National Broadcasting Commission (the NBC) as head of a statutory body is subject to the provisions of the Leadership Code by virtue of s 26(1)(g) of the Constitution.
Mr Kedea Uru was and is the Chairman of NBC and the Chief Executive and is therefore eligible to the rent allowance of K350 weekly. This is according to SCMC circular Instruction No 2/87 dated 6 August 1987, where Mr Paul Songo, then the chairman, said:
“However, where a head of a statutory authority has under the previous decision ceased to occupy an institutional house, then that officer shall continue to enjoy the K350 per week Housing Rental Allowance.”
This was a follow-up from the earlier circular No 1/87 dated 13 February 1987 where it said:
“... Heads of statutory bodies should also benefit from this Housing Allowance as similar to Constitutional and Departmental heads appointees.”
These circulars were sent to heads of statutory bodies and Mr Kedea Uru, being the Chairman of NBC, a statutory body, was aware that he was entitled to the rental allowance.
However, Mr Kedea Uru was not collecting the rental allowance as he was still occupying the NBC reserve house at Wonga Estate. He was only allowed to collect the rental allowance when he vacated the reserve house to move and reside at his village, Gabagaba. The personnel officer, Mr Matt Aimano, in his NBC Inter-Office memo dated 30 March 1987 said:
“In our case we could not pay the allowance to the Chairman because he continued to live in a reserve house since the decision on the allowance was made. However, as of this week the Chairman has moved to his own house at the village. We should now execute the NBC decision using resources within our recurrent budget.”
This, in effect, means that Mr Kedea Uru as the Chairman of NBC was not entitled to the rent allowance while occupying the reserve house at Wonga. But when he moved into his own house he became eligible for the rent allowance.
Mr Kedea Uru had moved into an NBC Badili house as of 18 August 1987 and when he moved in his rental allowance ceased. However, he wanted to collect the rental allowance but was not sure if he was eligible. He therefore wrote a letter which was dated 2 October 1987, to SCMC saying that because the Wonga Estate house is a reserve house and is not for sale he had moved into a rented house with the view to buying it under the Housing Ownership Scheme. In order to occupy this house he had signed a Tenancy Agreement and Tenancy Variation form, and commenced paying rent at K24 per fortnight. He wanted to be the sitting tenant in order to buy this house at a later date. At this stage, he was not buying the house but preparing himself so that when the NBC Home Ownership Scheme did come into existence he would, as a sitting tenant, buy the house. The Home Ownership Scheme at this stage was only a proposal yet to be approved by the NEC. Mr Kedea Uru therefore was paying rent as a tenant and his intended ownership had yet to be realised.
There was no response forthcoming so he wrote another letter on 4 November 1987 which has been quoted in full by my colleagues.
The reply was in response to the second letter and the SCMC answer was an unconditional “Yes”, in a letter dated 5 April 1988, also quoted by my colleagues. Yet is not the answer “Yes” inadequate? He had, for example, three circulars that had gone through his office and though the two SCMC circulars were not in great or clear detail, the intentions of the circulars were clear: to advise the statutory heads that to qualify for rental allowance the head must be living in his own house. Mr Kedea Uru even vacated the reserve house at Wonga Estate to occupy his own house at Gabagaba village. That, I believe, is easy to tell because that is what Mr M Aimano told us in his circular dated 30 March 1987. Even living in a house and paying rent is probably adequate to tell that the tenant does not own the house. He is occupying the house while paying rent for it. At least this doubt should make him seek further clarification. I will come back to this later on.
But I suppose it is sufficient to say that Mr Kedea Uru explained his position to SCMC concluding with the question, was he entitled to get the rental allowance? To this he received an unconditional “Yes”, meaning the answer included Mr Kedea Uru’s position referred to in the letter and the question he asked at the end. Mr Kedea Uru should not have acted upon it as the answer was incorrect and the act of receiving the rental allowance was also incorrect.
Let me briefly touch on the effect of the answer of the SCMC. Mr Kedea Uru had written two letters setting out his position and asking if he was eligible for the rental allowance. He expected a better answer than merely saying “Yes”. The details in the minutes were next to nothing. Though Mr Wep Kanawi, in his evidence, said he had a number of discussions and telephone calls with Mr Kedea Uru, these discussions or telephone calls do not reflect the content of the minute. I am sure if the contents of these conversations were raised in the meeting, these would have been added to explain further their reason for granting the rental allowance. Even if they were indeed raised, they were not recorded. Whatever took place, it is quite clear that Mr Uru’s letter was brought to the notice of the SCMC and was considered and granted.
Their decision was an error which they should have noticed from Mr Kedea Uru’s letter. Mr Kedea Uru was living in a house which he was simply renting. He said he had filled in necessary forms under the Housing Ownership Scheme. Yet they did not take the trouble to confirm this. If they had, they would have found that Mr Uru was not the owner of the house and that the Home Ownership Scheme was yet to be approved by the NEC. Mr Kedea Uru was not therefore eligible.
The letter by Mr Wep Kanawi advising the granting of Mr Kedea Uru’s rental allowance was insufficient and inconclusive. This letter only granted him the rental allowance although the minute contained a reservation which required Mr Kedea Uru to submit the documents in relation to the Housing Ownership Scheme to the SCMC.
Granted that SCMC members are busy men and that they have other matters to attend to, nevertheless, they should have taken time to consider carefully each matter on its merits as this committee deals with substantial amounts of money when it considers the salaries and fringe benefits of heads of departments and statutory bodies.
I believe the SCMC must be blamed for not properly considering Mr Kedea Uru’s letter.
After Mr Kedea Uru’s rental allowance was approved, the allowance was backdated to 18 August 1987, the date he occupied the Badili house. The first payment he received was for K11,900. For the next fifteen months, he continued receiving the rental allowance. The rental allowance ceased when the Ombudsman Commission commenced its investigation of him.
It must be seen that Mr Kedea Uru’s two letters, of the same content, to Mr Wep Kanawi were applications for the housing rental allowance. His letter raised some points that were not answered. For example, he was not in a reserve house but was then residing in an NBC rented house. Is he still eligible to get the rental allowance? He is in a house that he intends to buy. He has yet to pay the purchase price or he has signed the Housing Ownership Scheme forms; he cannot see when the documents (contract of sale) are to be executed. Is he still eligible for the rental allowance?
However, if Mr Wep Kanawi’s answer covered the points raised by Mr Kedea Uru’s letter and on that basis he had gone ahead to claim the rental allowance — Mr Kedea Uru was acting on a wrong answer. I have mentioned earlier that Mr Kedea Uru was not eligible to the rental allowance as he was residing in a house he did not own.
I am sure that Mr Kedea Uru, as the Chairman of NBC, was aware of the two circulars from the SCMC No 1/87 dated 13 February 1987, 2/87 dated 6 August 1987 and an internal NBC circular dated 30 March 1987 which in effect said he must own the house in order to be eligible for rental allowance. I believe this includes execution of a contract of sale to show that he is purchasing the house either by instalments or outright.
In the same sense, Mr Kedea Uru, as the Chairman, is the Chief Executive of NBC. He has the overall control of the body. It is true he does not handle the day-to-day running of each section within it, but at least he is, or should be, aware of what had been achieved and what had yet to be achieved. The Home Ownership Scheme was one of these matters which had yet to be finalised and, being a matter that would affect his personal life, I believe he would have had, at least, some knowledge of its progress.
In the alternative, if a few months later Mr Kedea Uru noted that he was still paying K24 rent, he should by then have realised, or at least asked himself, when he was going to purchase the house, or when the Home Ownership Scheme was to be implemented. I am sure he would still have that doubt in his mind whether he owned the house or not. To wait for over a year only to discover that he was being paid rental allowance under doubtful circumstances, that is, he was residing in a house he did not own and was paying rent for it, I believe is improper conduct of himself and his office. Without considering the backdated rental allowance, he had continued to receive the rental allowance for over a year and I believe he would have continued receiving it without right of ownership to this house. He had such a long time to perhaps settle the ownership of the house, yet he waited that long.
He has a duty to conduct himself in such a way both in his public or official life and private life in order not to allow his public or official integrity to be called into question. In carrying out his duties in his official capacity or private life, he must conduct himself in a way that is proper, upright, and honest without having elements of improper conduct. His duty is to the position he holds and to carry it out to the best of his ability. Anything less is demeaning to the office he holds.
Mr Kedea Uru as the Chairman knew of the previous circulars which had gone through his office and would, I believe, have known that he did not own the house at Badili. He knew that the Home Ownership Scheme had yet to be implemented. There were still doubts as to his eligibility to the rental allowance. He used his office as Chairman of the NBC to claim the rental allowance and got it for over a year and a half.
For these reasons, I am of the opinion that Mr Kedea Uru improperly received the rental allowance. He was not entitled to receive the rental allowance and when he received it he allowed his public and official integrity or personal integrity to be called into question. Also his actions gave rise to doubts in the public mind as to whether he was carrying out the responsibilities of his office as required by s 27 of the Constitution.
I therefore find him guilty on both charges of misconduct in office.
Since I have written a dissenting opinion, it is not necessary for me to say what punishment I would have imposed. However, I do agree with the recommendation made by the majority that Mr Uru should be asked to live in his village house and not get the rental allowance for eighteen-and-a-half months and, if he fails to agree, his appointment should be terminated.
(By majority) Findings of not guilty of misconduct in office Recommendations for repayment of money
Lawyer for the prosecutor: Vele Noka, Acting Public Prosecutor.
Lawyers for Kedea Uru: Les Gavara-Nanu & Co.