National Court throws out Don Polye’s 2022 Election win

The National Court has declared the 2022 election for the Kandep Open seat void, ruling that illegal practices, undue influence, and a blatantly invalid declaration by the Returning Officer [RO] undermined the integrity of the poll.

Petitioner Luke Alfred Manase successfully challenged the election of Don Pomb Polye [first respondent], with the Court upholding two of six grounds raised in the petition.

Justice Sir Kina Bona ruled that the RO’s declaration on 26 July 2022 was “invalid and void ab initio” after it was made in direct defiance of a written directive from the Electoral Commissioner [EC] ordering a halt to counting.

Evidence showed that only 46 ballot boxes were counted before the RO unlawfully declared Polye the winner by a slim margin of 527 votes. The Court found that the RO’s decision was rushed, biased, and strategically made to secure Polye’s return. “The declaration is invalid.”

Justice Bona said, “Accordingly, out of six grounds in the Petition, this Court has upheld two and dismissed four. This Court is therefore satisfied that the two grounds upheld are sufficient to find that the declaration of the first respondent as the winner of the Kandep Open seat is invalid.”

The Court also found overwhelming evidence of illegal practices at several polling locations. Armed hijacking of ballot boxes at Porogale, Titip, Lagalap, and Kanean led to suspiciously lopsided results, most notably, Polye receiving 100% of the 1,100 votes cast at Kanean.

In a 39-page published decision, the Court ruled these results implausible and found that the Electoral Commission had failed in its duty by allowing these tampered boxes into scrutiny.

Citing Section 215 of the Organic Law, Justice Bona concluded that the number of votes affected - 6,180 - far exceeded the winning margin.

“It is just that the election be declared void,” he said. Referencing a 2009 case, His Honour echoed Justice Lay’s strong stance on preserving electoral integrity.

"To polish it off I refer to paragraph 25 of page 9 of the judgment of Lay J in the case of Manase v.Polye & EC (supra) where he says words to the effect that in that case the affected votes exceed the winning margin. It was then submitted that it is not just and equitable that the result of the election be disturbed because the first respondent has not been guilty of any illegal practice," said Justice Bona.

"He says that he acknowledges the seriousness of disturbing the result of the election, that the people of Kandep Open will have no representation and the enormous task and expense of a by-election. However, his view is that it is essential that the people of Kandep know that their elected leader was returned as elected according to law and not because some people thought they were above the law or could outsmart the law."

"The integrity of the electoral process is of paramount importance in maintaining public confidence in it."

"It is therefore my duty to declare that the first Respondent who was returned as elected was not duly elected; the 2007 election for the seat of Kandep Open is declared absolutely void."

"This Court endorses the sentiments stated by Lay J above and in my final concluding paragraph in this case, from all the reasons given above, repeat that it is therefore my duty to declare that the First Respondent who was returned as elected was not duly elected and the 2022 election for the seat of Kandep Open is declared absolutely void.

The Court dismissed grounds relating to polling security and scrutiny errors due to a procedural mistake, misidentifying the First Respondent instead of the Electoral Commission. No corrections were made in time, leading to their dismissal.

The National Court has ordered a fresh by-election for Kandep Open and recommended that sacked RO Henry Apakali not be reappointed, among other orders.