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Improper Interference with a Land Lease by the Former Minister of Foreign Affairs, Mr Amos Bangabiti [1997] VUOM 2; 1997.9 (19 March 1997)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

IMPROPER INTERFERENCE WITH A

LAND LEASE BY THE FORMER MINISTER OF FOREIGN AFFAIRS, MR AMOS BANGABITI

In accordance with section 63(3) of the Constitution of the Republic of Vanuatu

19 March 1997

TABLE OF CONTENTS

PREAMBLE

1. SUMMARY

2. JURISDICTION AND SCOPE OF ENQUIRY

3. METHOD OF INVESTIGATION

4. COMMENTS BY INDIVIDUALS OR ORGANISATIONS AFFECTED BY THIS REPORT

5. RELEVANT LAWS

6. FINDINGS OF FACTS AND OPINION

7. FINDINGS OF WRONG CONDUCT AND DEFECTIVE ADMINISTRATION PRACTICES

1. BREACH OF S40 (A) OF LAND LEASES ACT CAP.163 BY MR BANGABITI
2. BREACH OF ART 5(1) OF THE CONSTITUTION BY MR BANGABITI
3. MR BANGABITI ACTED CONTRARY TO THE RULE OF LAW
4. BREACH OF THE LEADERSHIP CODE BY MR BANGABITI
5. MR CARLOT KORMAN ACTED AGAINST THE RULE OF LAW, THE LAND LAW AND THE CONSTITUTION
6. BREACH OF THE LEADERSHIP CODE BY MR KORMAN

8. RECOMMENDATIONS

APPENDIX "A"
Copy of the Lease Document

APPENDIX "B"
Mr M.Carlot Korman’s letter to Mr William Edgell

APPENDIX "C"
UMP Letter

APPENDIX "D"
Bangabiti’s letter of 25.07.96

APPENDIX "E"
Copy of the Agreement

APPENDIX "F"
Copy of Bangabiti’s Statement.

PUBLIC REPORT

ON THE

IMPROPER INTERFERENCE WITH A LAND LEASE

BY THE

FORMER MINISTER OF FOREIGN AFFAIRS, MR AMOS BANGABITI

PREAMBLE

"Do ye thank that the Scripture saith in vain "The spirit that dwelleth in us lusteth to envy"."

James 4 v 5.

This report deals with an incident in Santo which is fairly minor in itself but which illustrates a major problem which recurs again and again in complaints to the Ombudsman’s Office. It show how an expatriate (a native of Australia which is one of Vanuatu’s greatest benefactors) found himself the victim of envy and persecution despite having done no wrong and despite having acted generously in allowing families to live in his property without payment.

The incident illustrates a very undesirable habit and characteristic which is apparently becoming widespread among ill-informed members of the public and - worse still - among those who are entrusted with leadership. In other words these exists increasing evidence that if any expatriate - or indeed any Ni-Vanuatu offends in any way the feelings of someone who is involved in political parties then that political party is able to have the offender punished, regardless of his innocence. It appears to be enough ground for oppression that somebody "in power" intends to "get him".

It cannot be emphasised strongly enough that the rules of law and the Court’s decisions are binding on every member of the public whether indigenous, or citizen or expatriate. Membership of any political party, whether that party is in office or not, does not give the member any power whatsoever to act in an unlawful way against selected victims and to go against a court’s decision. All members of our society are protected equally against violations of their rights and even if a person is viewed as a "big man" in his party he has no more legal right and therefore no more valid power, than the humblest member of the public with no interest in politics.

The fact that the victim in this Santo case was an investor, and an employer of indigenous people, in an area of the country where economic activity is badly needed, shows a complete failure to realise the importance to Vanuatu of all people prepared to face the great expense of coming to the country investing money in an uncertain economy which has yet to be recovered from its downward slip and thereby playing an absolutely vital role in the country’s salvation.

There is very little point in setting up "Task Forces" and "Economic Planning Committees" etc if existing expatriates, or potential investors are being discouraged by harassment and interference and delays of a completely illegal nature in securing their rights in an ostensibly democratic country.

Every episode such as the one dealt with in this report finds its way into people’s conversations and in reports sent home by victimised expatriates and into media interviews which point a sad picture of the prejudices and increasing lawlessness in the life of Vanuatu.

The value and importance of encouraging foreign investors in Vanuatu cannot be emphasised too much at this hazardous moment in Vanuatu’s development, and if actions are taken - particularly of an illegal nature - against their well-being, these are directly destructive to the country’s hopes.

Therefore I hope that this incident in Santo will illustrate the dangers of "anti-expatriate" propaganda and action and that the members of the public will see the danger signals before it is too late and will put aside any feelings - however understandable - of envy of those who are apparently "better off" and by minimising feelings of "them and us".

Its also vital at this stage that expatriates check that their own behaviour to make sure that no appropriate arrogance or conceit characterises their relationships with their Ni-Vanuatu neighbours, in order that a spirit of co-operation may develop and flourish at this difficult time in Vanuatu’s development.

This incident illustrates clearly that the law regarding land and property rights is either not clearly understood or is greatly resented by many people. It would help greatly if these particular issues were clarified and settled once for all.

Whether we like or not, we are all in this together and we will stand or fall together.

1 SUMMARY

1.1 On 1 August 1996, Mr Kevin Henderson from Santo Engineers in Luganville complained to the Office of the Ombudsman that Mr Amos Bangabiti the former Minister of Foreign Affairs had written a letter of threat to him about some land his father has a registered lease over.

1.2 Mr Kevin Henderson had obtained an Eviction Order to evict the families residing illegally on the lease title belonging to his father Mr Francis Alfred Henderson. The families told all UMP Ministers what happened. This resulted in a threatening letter being sent to Mr Kevin Henderson by the former Minister of Foreign Affairs Mr Bangabiti. The Minister stated that as a Government Minister he was not happy with the way some expatriates are treating Ni-Vanuatu. He reminded Mr Kevin Henderson that he was involved in the 1980 Rebellion and that his residential permit expired on 25.02.97. An anonymous caller from Foreign Affairs told Mr K Henderson if he enforced the Eviction Order, he would be deported.

1.3 For the reasons that follow in this public report, my present opinion is that the complaint is justified. The facts relevant to my opinion are:

(a) Mr Francis Alfred Henderson has a lease and is lawfully entitled to occupy the land because he was and still is the legal holder. (The lease does not belong to Mr Kevin Henderson) but to his father who gave Kevin his power of attorney to register and develop the land. (Refer to Appendix "A")

(b) Under A5 (1) (j) and (k) of the Constitution, Mr Francis Henderson has the right of:

(i) protection of his property

(ii) protection from unjust deprivation of his property; and

(iii) equal treatment under the law or administrative action.

(c) On 01.04.96 Mr Kevin Henderson obtained the Court Order requiring the families to leave the land.

(d) On 16.04.96 the former Prime Minister Mr Carlot Korman wrote to the former Minister of Lands Mr William Edgell giving some options. One of these was that the Ni-Vanuatu families be given a subdivided part of the land leased by Mr Francis Henderson. (Refer to Appendix "B")

(e) On 15.07.96 the President of the UMP for Luganville region Mr Jean Delaveau wrote a letter to all UMP Ministers stating that his Committee had passed a resolution on 11.07.96 which says:

Conclusion: Follem olgeta points ia, Luganville UMP Regional Executive Committy i askem strong long gavman blong cancellem resident permit blong KEVIN HENDERSON mo BOBY HENDERSON we tufala i deportees blong tufala i go back mo nomo kambak long country Vanuatu. UMP Regional Executive blong Luganville bae i appreciatem bigwan muv we gavman bae i tekem blong save considerem request ia blong executif committy mo tekem into consideration olgeta important points we i mentioned".

The President’s letter clearly stated that the families living on Henderson leased land were UMP supporters. (Refer to Appendix "C")

(f) On 25.07.96 Mr Bangabiti the former Minister of Foreign Affairs (a UMP MP) sent a threatening letter to Mr Kevin Henderson saying:

(i) Mr Kevin Henderson’s residence permit would expire on 25.02.97;

(ii) And that Mr Kevin Henderson was using the Court Officer Mr Willy Palao to drive the families out of the land;

(iii) Also that Mr Kevin Henderson was deported after the Santo Rebellion. (Refer to Appendix "D")

(g) Mr Kevin Henderson had apparently received an anonymous call from Foreign Affairs that if he enforced the Eviction Order he would be deported.

1.4 It appears that Mr Francis Henderson’s fundamental Constitutional right for his property not to be interfered with has been breached. This resulted from political interference by the UMP Executive in Luganville and Mr Bangabiti’s action who followed the Executive’s resolution.

1.5 By interfering with Messrs Henderson’s right to enjoy the lease Mr Bangabiti has:

(a) Demeaned the Office of the Ministry of Foreign Affairs;

(b) Allowed his integrity to be called into question by not following the laws and Constitution of the Republic of Vanuatu;

(c) And by not accepting a court order has shown disrespect to the Court system and diminished respect for the Government of the Republic of Vanuatu. As such, Mr Bangabiti has breached the Leadership Code which is set out in Chapter 10 of the Constitution of Vanuatu. His action was even worse because he knew about the Court Order issued to evict the families residing on Henderson leased land and he knew he was not respecting the laws of Vanuatu.

1.6 Mr Kevin Henderson was understandably worried at Minister Bangabiti’s reference in his letter that his residential permit would expire on 25.02.97. Mr Kevin Henderson felt he had been unfairly treated as he believed that he got the Eviction Order in accordance with the laws of Vanuatu. He felt unsecured about his residency in Vanuatu. His father Mr Francis Henderson was therefore also concerned as he would not be earning any money from Santo Engineers, (his Company) if his son Kevin was required to leave the country.

1.7 For other lease holders, it would put them in a frightening situation that they might lose their land titles if the Government Ministers ignore the laws of this country to deprive the lessees of their rights to their land titles.

1.8 If Ministers and other politicians disregard Court orders, the people of Vanuatu will be right to believe that a Court Order can be ignored by a government Minister. This then encourages people not to respect the law and not to respect government Ministers, and therefore any such action by a Leader is a breach of the Leadership Code as it creates a disrespect for the Government of Vanuatu. This also creates the idea that Vanuatu might be a lawless country if the Ministers do not respect the legal system of the country. This would then gradually encourage the people of Vanuatu not to respect and abide by any court decisions and Court Orders.

1.9 It may even encourage them to use politicians inappropriately to protect them against such decisions and orders. The politicians would see themselves as above the laws of Vanuatu. In a democracy no one is above the law.

1.10 People who disregard the decisions of the Court can be held in contempt of the Court and be put in jail. All citizens, including those in Government, must obey the laws which exist in Vanuatu. Everyone is under these laws and as such the people of Vanuatu must respect and abide by any court decision or order. In this particular case Mr Bangabiti did not respect the Court Order obtained by Mr Kevin Henderson. The court is an independent institution. His action was clearly shown by his letter of threat to Mr Kevin Henderson dated 25.07.96.

1.11 Mr Bangabiti effectively threatened to deprive Mr Francis Henderson of his right to his leased land. Besides that, the Constitution provides that all people should be treated equally. This did not apply in Mr Kevin Henderson’s case even though he has the right to obtain the Eviction Order. All the above breaches of the laws are not acceptable in a democratic society like Vanuatu as they contradict the principles of a democracy.

1.12 The former Prime Minister Mr Carlot Korman disregarded the laws by suggesting to the former Minister of Lands Mr William Edgell to subdivide Mr Henderson’s land title and allocate to a third party who has no right on the land. This encouraged the squatters to believe that they have some rights when in fact they have no right. Mr Korman’s suggestion was improper as a lease is indefeasible unless it is ordered by the Court.

2 JURISDICTION AND SCOPE OF ENQUIRY

2.1 Pursuant to arts 62(1) and 62(2) of the Constitution and s14(1) of the Ombudsman Act, the Ombudsman has jurisdiction to investigate into administrative defects and improper administrative practices.

2.2 Accordingly, the Ombudsman has jurisdiction to investigate Mr K. Henderson’s complaint to determine whether his allegation was true and whether the action taken by the former Minister of Foreign Affairs, Mr A. Bangabiti was in accordance with the laws of Vanuatu. The Ombudsman then commenced an enquiry.

2.3 The scope of the investigation was to establish the following:

(a) why Mr Bangabiti chose to interfere with a person’s legal right to enjoy their leased land;

(b) why Mr Bangabiti ignored a Court Order.

3 METHOD OF INVESTIGATION

3.1 In accordance with art 62(3) of the Constitution, the Ombudsman is empowered to request any person likely to assist her or furnish with information and documents needed for her inquiry. Based on these powers, documents and information were obtained from the Ministry responsible as well as from other sources.

3.2 Under s17(1) of the Ombudsman Act No.14 of 1995 it is the duty of the Ombudsman where it is possible to obtain evidence and information through informal request, requesting the cooperation of the parties concerned.

4 COMMENTS BY INDIVIDUALS OR ORGANISATIONS AFFECTED BY THIS REPORT

4.1 S16(4) of the Act states that the Ombudsman must give a right to reply or to comment on the accusations to all the parties complained of.

4.2 In accordance with the above, a preliminary report was issued on the 13th September 1996 to all individuals and organisations affected by this report. A reply received is attached as an appendix to this report. Mr Bangabiti must be praised for being the first politician to realise his mistake in the preliminary report and came back to apologise for what he had done to Mr K. Henderson. Although he had promised to write an apology letter to Mr K. Henderson it was not possible to get a copy of that letter but his attached statement shows that Mr Bangabiti realised that he had made a mistake by acting against the laws of Vanuatu, and against the Henderson family.

4.3 The former Prime Minister Hon. M. Carlot Korman did not reply to the preliminary report although all the parties concerned were given an extra seven (7) days in which to respond.

4.4 The former acting Minister for Foreign Affairs Mr Amos Andeng did not respond to the preliminary report although he responded during our investigations as acting Minister for Foreign Affairs.

4.5 The Luganville UMP Executive President, Mr Jean Delaveau who instigated the whole affair kept silent and did not make any response at all.

4.6 Gratien and Marcelino families (squatters) who were residing on Henderson leased land and being the real cause of the matter did not respond to the preliminary report.

5 RELEVANT LAWS

5.1 S40(a) of the Land Leases Act [Cap.163] provides:

That, so long as the lessee pays the rent and observes and performs the agreements and conditions contained or implied in the lease and on his part to be observed and performed, the lessee shall peaceably and quietly possess and enjoy the leased land during the period of the lease without any interruption from or by the lessor or any person rightfully claiming through him.

5.2 Art 5(1) of the Vanuatu Constitution provides the following:

The Republic of Vanuatu recognises, that subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights:

(j) protection for the privacy of the home and other property and from unjust deprivation of property;

(k) equal treatment under the law or administrative action.

5.3 A proprietor of a registered lease has exclusive right to enjoy the benefits derived from the leased land in accordance with the conditions of the lease agreement. An individual’s fundamental rights of protection under the law, protection for property and unjust deprivation of property and equal treatment under the law or administrative process must at all times be respected. It is a serious offence to violate these Constitutional rights. By interfering with these rights a leader violates Art 66(1) of the Constitution of Vanuatu under the Leadership Code, which says a leader as defined under Art 67:

(a) must not place himself in a position which he might have a conflict of interest in his conduct;

(b) must not cause the public not to think highly of his office or position;

(c) must not let the people lose respect for the Government of Vanuatu.

6 FINDINGS OF FACTS AND OPINION

6.1 The Henderson family lived on the land before independence. The Gratien and Marcelino families worked for the Hendersons on the land. After the 1980 Santo rebellion Mr Kevin Henderson was deported and declared a prohibited immigrant for his involvement in the Rebellion. Mr Francis Alfred Henderson, Kevin’s father and the alienator of the land also left Vanuatu after the Santo rebellion. It is important to mention here that he was not a prohibited immigrant. Those who were declared prohibited immigrants lost all their land titles.

6.2 In 1992 Hon Maxime Carlot Korman with his first Coalition Government allowed Vanuatu’s deportees’ re-entry into Vanuatu. This included Kevin Henderson. He is therefore no longer a prohibited immigrant. Kevin and his father decided to get their business, Santo Engineers going again on the leased land.

6.3 The father then sent Kevin back to Vanuatu with his power of attorney. This gave Kevin the right to register the land and look after their business namely, Santo Engineers. A power of attorney is a legal document which allows one person to act on another person’s behalf including doing things on the land and with the land.

6.4 On 31.03.94 Mr Kevin Henderson wrote to Mr Carlot Korman asking him to help register the land of which he was the pre-independence owner. He was advised by the Prime Minister’s Office to talk to the Ministry of Lands. Mr Kevin Henderson followed the advice. The Prime Minister’s Office also sent Mr Henderson’s letter to Mr Morrison Wabaiat, the then first Secretary of the Ministry of Lands. Mr Henderson was entitled by law to apply to register his land, and because he was the pre-independence owner he had the right to obtain a lease.

6.5 On 24.05.95 Mr Wabaiat wrote to Mr Roger Tary the Director of Lands, requesting him to look into Mr Henderson’s request and provide him relevant information on title 469. As a result the Luganville Rural Lands Office sent a report on title 469 to Mr Wabaiat. The report said that no payment had been made to the alienator Mr Francis Alfred Henderson for part of title 469 being used by South Santo Cattle Project.

6.6 On 22.09.95 Mr Roger Tary wrote to the principal Lands Officer Mr Steven Tahi of Urban Lands Office. He requested Mr Tahi to prepare the lease for Mr Francis Henderson. The lease was signed. Backdated land rent to 30 July 1980 was paid by Mr Kevin Henderson. On 28.02.96 the above lease for title 469 was registered under the new title No.03/0G53/002 in Mr Francis Henderson’s name. Mr Francis Henderson is now the lawful and registered lessee of the land. (Refer to Appendix "A")

6.7 Mrs Gratien and Mrs Marcelino were employed by the Hendersons and were allowed to live free in the houses the Henderson provided to them. Ever since the Hendersons left Vanuatu the families have been living on the land. When Mr Kevin Henderson came back they were not prepared to leave.

6.8 Following Mr Kevin Henderson’s letter of 12.03.96 to the Luganville Court explaining that his father was the registered lessee of the land, the Court made an order on 01.04.96 evicting the Gratien and Marcelino families. They were ordered by the Court to leave the land before 21.4.96.

6.9 On 16.04.96 the then Prime Minister Mr Korman wrote to the then Minister of Lands Mr William Edgell and advised him to resolve the matter. He suggested two options:

(a) to subdivide the Henderson leased land and allocate some to the families; or

(b) allocate other land to them from a new subdivision next to Henderson leased land.

(Refer to Appendix "B")

6.10 The latter was adopted and included an agreement between Mr Edgell, Mr Kevin Henderson and Gratien and Marcelino families constituting the following:

(a) allocate another block of land to the families;

(b) Mr K Henderson to allow the families 30 days to peacefully vacate his father’s leased land; and

(c) the families to meet all fees for their new lease title;

(Refer to Appendix "E")

6.11 On 15.07.96 the Luganville UMP Executive Committee wrote to all UMP Government Ministers complaining about Mr Kevin Henderson’s actions towards the Gratien and Macelino families. The families are UMP supporters. The Committee asked all UMP Ministers to take immediate action to cancel Mr K Henderson’s residence permit. In response the then Minister of Foreign Affairs, Mr Bangabiti wrote to Mr K Henderson on 25.07.96.

Dear Sir,

RE: ISSUE ON LAND TITLE 03/0G53/002 LUGANVILLE

After examining a three (3) past letter reporting some action been made against some Ni-Vanuatu living in that surrounding Land area I am not very happy with the way well threatening these people.

Further to my understanding you are one of those deportees at Santo rebellion and now using Mr Willy Palao a court house Officer to drive out these Ni-Vanuatu flocks.

However, Mr Kevin, I am afraid to inform you that in such case your residential permit will valid are as follows:

Mr Kevin Anderson - 25/02/97

Mr Bob Anderson - 10/03/97

I’m well aware of this matter and hope you take into consideration.

Hon. Amos Bangabiti

Minister of Foreign Affairs and Immigration

6.12 Following receipt of this letter from the Minister, Mr K Henderson faxed a letter of complaint to the Office of the Ombudsman. He explained that he is paying an annual land rent of VT 130,000 and an annual property tax of VT 140,000. Mr Henderson felt that he should have some say on what he does on the land and that he should not be threatened.

6.13 On 12.08.96 the Ombudsman informed Mr Bangabiti of her intention to investigate Mr K Henderson’s complaint. In response to the above letter, Mr Bangabiti wrote to the Ombudsman on 19.08.96 expressing his dissatisfaction with Mr K Henderson’s actions towards the families residing on the land. The Ombudsman wrote another letter on 20.08.96 to Mr Bangabiti requesting him to explain the basis of his letter to Mr K Henderson. The Ombudsman asked:

(a) whether those evicted had any right to reside on the land;

(b) who made the complaint to him; and

(c) on what issue specifically and why the complaint was forwarded to him.

6.14 Another letter from the Ombudsman was sent to Mr Bangabiti referring to the Minister’s letter of 25.07.96 in which he stated that Mr Henderson was using Mr Willie Palao the Court Officer to evict the families from Henderson leased land. The Ombudsman asked Mr Bangabiti to clarify his point as it is a serious matter to accuse a court officer and would require an investigation. On 02.09.96 Acting Minister of Foreign Affairs Mr Amos Andeng responded and again questioned Mr Kevin Henderson’s stay in Vanuatu, and being a deportee. He also attached a copy of the Luganville UMP Executive Committee’s letter of complaint about Mr K Henderson, addressed to all UMP Government Ministers. (Refer to Appendix "C")

FINDINGS OF FACTS

6.15 The lease belongs to Mr Francis Alfred Henderson. He was and is not a deportee. He was and is not a prohibited immigrant. Mr Kevin Henderson is acting on behalf of his father Mr Francis Alfred Henderson who gave him his power of attorney. With this legal document (power of attorney), Mr Kevin Henderson can do anything on the land and to the land in accordance with his lease. Mr Francis Alfred Henderson or whoever acting on his behalf has the right to the leased land and he cannot be deprived of that right.

6.16 The first Coalition Government in 1992 allowed the deportee’s re-entry into Vanuatu and Mr Kevin Henderson was one of them. It should be noted too that other deportees like Mr Kevin Henderson claimed their land titles and registered them. This is confirmed by Urban Lands Office in Luganville. Mr Kevin Henderson registered the lease under his father’s name and the lease does not belong to Mr Kevin Henderson. Due to the previous Government’s decision to allow the deportees re-entry into Vanuatu Mr Kevin Henderson should no longer be regarded as a deportee. A deportee or prohibited immigrant would never have been allowed re-entry into Vanuatu.

6.17 The Gratien and Marcelino families did not have any legal right at all to reside on the leased title they had been allowed in the past to reside freely on the Henderson land by the Henderson. The Eviction Order issued on them was proper. Mr Willy Palao was acting in accordance with the Court instruction to serve the Eviction Order. Although the families are UMP supporters, it does not simply mean that a UMP Minister can act illegally and by-pass or act against the Court Order.

6.18 Mr Bangabiti decided to act upon the request of the Luganville UMP Executive Committee which complained about Mr Kevin Henderson and wanted his residence permit cancelled immediately. This particular committee was constituted with people who seem to have no knowledge of the laws and the legal and proper administrative procedures in the Government. A political body dictating to the Government of Vanuatu what to do regardless of the laws and the proper procedures only caused a Government Minister to act illegally.

Mr Bangabiti indicated that it was very difficult to resist pressure from their political committees.

6.19 In his answer to the Preliminary Report, Mr Bangabiti apologised for his action in the Office of the Ombudsman saying he had made a mistake (see Appendix "F").

7 FINDINGS OF WRONG CONDUCT AND DEFECTIVE ADMINISTRATION PRACTICES

Finding No. 1

BREACH OF S40(a) OF LAND LEASES ACT CAP.163 BY MR BANGABITI

Mr Bangabiti breached S40(a) of the Land Leases Act Cap.163 in that he has interfered with Mr Francis Henderson’s right to peacefully, quietly posses and enjoy his leased land.

Finding No. 2

BREACH OF ART 5(1) OF THE CONSTITUTION BY MR BANGABITI

Mr Bangabiti breached Art 5(1) of the Constitution in that he has not respected Mr Francis Henderson’s right for protection of his property. He has not respected Mr Kevin Henderson’s right for equal treatment under the law as well as equal treatment under administrative action. He has violated these individual Constitutional rights of the Hendersons.

Finding No. 3

MR BANGABITI ACTED CONTRARY TO THE RULE OF LAW

Mr Bangabiti acted contrary to the Court Order obtained by Mr Kevin Henderson to evict the squatters on Henderson leased land. He has also acted against the principles of the separation of power.

Finding No. 4

BREACH OF THE LEADERSHIP CODE BY MR BANGABITI

Mr Bangabiti seriously breached the Leadership Code by ignoring the laws, the Court Order, the Constitution and threatened Mr Kevin Henderson to cancel his livelihood if he did not accept his desires to fulfil his UMP Supporters and to fulfil his own personal political gain.

As he tried to help the supporters of his own party the UMP, he acted:

(a) in a situation where there was a conflict of interest;

(b) in a way that demeaned his office or position;

(c) in a way that his integrity has been called into question; and

(d) so as to cause diminish respect for the Vanuatu Government.

Finding No. 5

MR CARLOT KORMAN ACTED AGAINST THE RULE OF LAW, THE LAND LAW AND THE CONSTITUTION

Even though the Prime Minister helped the Henderson family to apply for and obtain their lease, he acted against the decision of the Court to evict the squatters when he gave his suggestions to the Minister of Lands to subdivide Henderson leased land and allocate to the squatters some of the Henderson land. His instructions ignored Mr Francis Henderson’s right to enjoy his leased land, the right for protection of his property and unjust deprivation of his property because of political pressures from his UMP supporters in Santo.

However this advice was not proceeded with.

Finding No. 6

BREACH OF THE LEADERSHIP CODE BY MR KORMAN

Mr Korman breached the Leadership Code as a leader under A.67 of the Constitution as he advised one Minister to take an illegal action.

8 RECOMMENDATIONS

In accordance with S23 of the Ombudsman Act: Procedures after an enquiry under chapter 10 (Leadership Code) of the Constitution if a "leader had failed to carry or has breached any of the duties and responsibilities of office imposed on him under Art 66(1) of the Constitution and is guilty of misconduct in office, I recommend:

(a) Mr Bangabiti to apologise to Mr Henderson as he already promised to do in his statement and reply to the Ombudsman on 11.12.96.

(b) MP Bangabiti should in future not deal with any matter which is outside his jurisdiction instead refer it to the appropriate authority.

(c) MP Bangabiti and Korman (along with all MPs and citizens) must respect an individual’s fundamental rights under the Constitution as well as respect Court Orders.

(d) Government Ministers and all MPs should not carry out instructions from their political parties as any Government of the day belongs to the people of Vanuatu and does not belong to a particular political party.

I ask the President of the Republic of Vanuatu in accordance with the above section to forward and report these recommendations to both Mr Korman and Bangabiti taking into account the first apologies to the Office of the Ombudsman of Mr Bangabiti.

Dated this 19th day of March 1997.

MARIE-NOËLLE FERRIEUX PATTERSON
OMBUDSMAN OF THE REPUBLIC OF VANUATU.

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