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Vanuatu Ombudsman's Reports |
REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN
ON
ILLEGAL APPOINTMENT OF YVES NIOWENMAL BY FORMER PRIME MINISTER, MAXIME CARLOT KORMAN, TEMPORARILY TO THE POSITION OF DIRECTOR OF HEALTH WHEN HE WAS SUSPENDED BY THE PUBLIC SERVICE DISCIPLINARY BOARD
29 April 1998
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TABLE OF CONTENTS
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PREAMBLE
'An unjust man is an abomination to the just and he that is upright is abomination to the wicked ...'
Proverbs 29 v 27.
This report illustrates clearly how the provisions of the Constitution can be abused when public officials are determined to promote even those who are obviously unsuitable into positions beyond their abilities and qualifications.
We hope that recent events will result in strict observance of selection procedures leading to good appointments instead of the sorry record of the last few years.
1 CASE NUMBER
2 THE COMPLAINANT
3. COMPLAINT AGAINST
3.2 Mr Maxime Carlot Korman, the former Prime Minister.
4 THE COMPLAINT
4.1 That the former Prime Minister Mr Korman illegally appointed Mr Yves Niowenmal temporarily to the position of Director of Health when he was suspended by the Public Service Disciplinary Board.
5 METHOD OF INVESTIGATION
5.1 Interviews with Mr Niowenmal and Mr Andre Lesines
5.2 Correspondence with Public Service Department ('PSD'), the Health Department, Mr Korman, Assemblee De La Province Nord, and Centre Hospitalier Régional de Bordeaux
6 RELEVANT LAW
The Constitution
The Prime Minister ... may, exceptionally, make provision for the recruitment of staff for a specified period to meet unforeseen needs.
6.2 Art 60(4):
The [Public Service] Commission shall not be subject to the direction or control of any other person or body in the exercise of its functions.
6.3 Art 66(1):
Any person who is defined as a leader in art 67 has a duty to conduct himself in such a way both in his public and private life so as not to:
(a) place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;
(b) demean his office or position;
(c) allow his integrity to be called into question; or
(d) endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.
Public Service Act and Public Service Staff Manual
6.4 The Public Service Staff Manual, comprising Orders under the Public Service Act, sets out procedures that must be followed for the recruitment of public officers. These procedures, clauses 3.11 - 3.19, are summarized in Appendix 'A'.
7 RELEVANT MATTERS AND FACTS
7.1 Mr Niowenmal is a nurse by profession with a specialty in anaesthesia. He has a nursing certificate from the French Nursing School, Georges Pompidou Hospital in Port Vila. Mr Niowenmal received training in anaesthesia and resuscitation in Noumea, New Caledonia and at University Hospital Centre of Bordeaux in France. From 1989 to 1991 he worked as a nurse-anaesthetist at Koumac hospital in New Caledonia. Mr Niowenmal is from Walarano, Malekula.
7.2 At all times relevant to this Report, Mr Niowenmal was a strong supporter of UMP, and Mr Korman was President of UMP.
7.3 On 28 December 1993 the Acting Prime Minister Honourable Sethy Regenvanu appointed Mr Niowenmal temporarily to the post of anaesthetist at the Northern District Hospital ('NDH') in Santo. This appointment was made to fill a vacancy left by civil servant strikers during the first week of December 1993. The duration of the appointment was not specified. See appendix 'B'.
7.4 By the end of December 1993, Dr Bule the Director of Health at that time was given early retirement. Five months later, on 25 May 1994, Mr Korman appointed Mr Niowenmal on a temporary basis to the post of Director of Health and informed Mr Niowenmal that his appointment as Anaesthetist was terminated. The duration of the appointment was not specified. Mr Niowenmal was not qualified for this senior position. See appendix 'C'.
7.5 Between the months of August and September 1994 allegations of maladministration were made against Mr Niowenmal by the Health staff and these were pointed out to him by the Minister of Health at that time, Dr Edward Tambisari on two separate occasions. The allegations were:
(a) Interference with nurses’ duty roster
(b) Interference with doctors’ duties
(c) Allowing government vehicles to be used for private purposes
(d) Attempted dismissal of Mr Daniel Kalorib and other nurses
(e) Recruitment of paramedical staff without the knowledge of the hospital management.
7.6 On 24 February 1995, Mr Korman suspended Mr Niowenmal for a month without pay following the allegations made against him. Between February and May 1995 there were also three suspensions of Mr Niowenmal by the Minister of Health Dr Tambisari based on his work performance (these did not take effect as Dr Tambisari was not authorized to suspend a temporary officer).
7.7 On 5 May 1995 the PSD under the direction of the PSC offered the permanent post of Director of Health to Mr Niowenmal, which he accepted. At that time the PSC was under the chairmanship of Mr William Mael, and the Commissioners were Mr Kalpovi Mangawai, Mr Edwin Basil and Mr Neil Steven Netaf. The appointment did not follow the proper public service appointment procedures set out in chapter 3 of the Public Service Staff Manual, such as advertising of the position, etc. Furthermore, the Commissioners confirmed to this Office that they did not act independently, but instead directed the PSD to offer the position to Mr Niowenmal based on direction that they had received from Mr Korman. It is noteworthy that the Commissioners acknowledged their errors in acting contrary to the Staff Manual and in taking direction from Mr Korman, and apologized for this misconduct.
7.8 On 9 January 1996 the Director of Finance, Mr Jeffrey Wilfred, recommended to the Director of PSD that disciplinary charges be laid against Mr Niowenmal. Mr Wilfred alleged that Mr Niowenmal ignored proper procedures and as a result committed the Health Department and the Government to a non budgeted expenditure without proper approval: Vt 5.4 million for the VCH cleaning contract.
7.9 The Public Service Disciplinary Board ('Disciplinary Board') met on 21 February 1996 and dismissed Mr Niowenmal as Director of Health, on the charge of mishandling Government funds.
7.10 Despite this dismissal, 7 days later on 28 February 1996, Mr Korman re-appointed Mr Niowenmal to the post of Director of Health on a temporary basis. See appendix 'D'.
7.11 On 13 March 1996 Mr Niowenmal appealed the Disciplinary Board’s decision to the PSC. On 19 April 1996 the PSC quashed the decision made by the Disciplinary Board and re-instated Mr Niowenmal to the post of Director of Health. The reason was that Mr Niowenmal's commitment of funds, although contrary to the Finance Regulations, was backed up by Mr Korman and then Minister of Finance Willie Jimmy.
7.12 On 10 October 1996 Mr Niowenmal faced another Disciplinary Board hearing, for negligent, careless and incompetent work, disobedience, misuse of Government properties, and violations of the Public Service Act and Public Service Staff Manual. As a result, the Disciplinary Board dismissed Mr Niowenmal, effective 30 October 1996. This dismissal was confirmed by the PSC on 5 November 1996.
7.13 In addition to the allegations and findings made by the Ministers of Health, Director of Finance, Disciplinary Board and PSC against Mr Niowenmal, the Office of the Ombudsman has made numerous findings of misconduct and maladministration against Mr Niowenmal to date. These include:
(a) failure to recruit a Gynaecologist/Obstetrician for VCH when funds were available and applications made, placing the women of Vanuatu at unnecessary risk;
(b) breach of Finance Regulations and mishandling of public funds with respect to the installation of hospital panel signs;
(c) initiating promotions and regrading of salaries for Health staff in November 1995, without budgetary provision and contrary to law;
(d) incompetence and improper performance of his duties as Director of Health;
(e) breach of the Leadership Code of the Constitution.
As a result of these findings, I have made repeated recommendations that Mr Niowenmal not be put in charge of the Health Department again nor should he hold any other responsible position in the Public Service.[1]
8 REPLIES TO PRELIMINARY REPORT
8.1 The preliminary report was sent to the following people:
- Maxime Carlot Korman - Kalpovi Mangawai
- Yves Niowenmal - Edwin Basil
- Sethy John Regenvanu - Neil Steven Netaf
- William Mael
8.2 Mr Sethy John Regenvanu replied to the preliminary report and stated that his interpretation of Art 57(4) of the Constitution differed from mine:
I believe on the contrary that my action in appointing Mr Niowenmal temporarily to the post of Anaesthetist was consistent with Art 57(4) of the Constitution. A temporary appointment is in effect an arrangement liable to be changed (as it is not permanent) and thus is consistent with my own interpretation of Art 57(4) of the Constitution.
Mr Regenvanu’s reply is appendix 'E'.
8.3 The former Commissioners for PSC, Messrs Mangawai and Basil stated in their replies that the Commission had apologised for the improper appointment of Mr Niowenmal which they were pushed to make by Mr Korman, and that they saw no reason for the Ombudsman to publish a public report. Their replies are appendices 'F' and 'G'. Mr Netaf who was overseas called the Ombudsman by phone to say that the PSC made this appointment through political pressure along with many other appointments during that time. Mr Netaf said he agreed totally with the Ombudsman’s report. The Chairman Mr Mael did not respond to the Preliminary Report.
8.4 Mr Korman and Mr Niowenmal did not reply to the preliminary report and must be taken to agree with the facts therein.
9 FINDINGS OF WRONG CONDUCT AND MALADMINISTRATION
FINDING NO. 1 - BREACH OF ARTICLE 57(4) OF THE CONSTITUTION BY MR REGENVANU, FORMER ACTING PRIME MINISTER
9.1 The former Acting Prime Minister Sethy Regenvanu acted contrary to law by appointing Mr Niowenmal as anaesthetist on a temporary and indefinite basis in December 1993, without 'a specified period' as required by Art 57(4) of the Constitution.
FINDING NO. 2 - BREACH OF ARTICLE 57(4) OF THE CONSTITUTION BY MR KORMAN, FORMER PRIME MINISTER
9.2 Mr Korman's temporary appointments of Mr Niowenmal as Director of Health in May 1994 and in February 1996 were contrary to Art 57(4) of the Constitution. These appointments were not 'exceptional', they were not made 'for a specified period', and they were not made to 'meet unforeseen needs'.
FINDING NO. 3 - BREACH OF ARTICLE 60(4) OF THE CONSTITUTION BY MR KORMAN, FORMER PRIME MINISTER
9.3 Mr Korman violated Art 60(4) by pushing the commissioners of the PSC to make a hiring decision in favour of Mr Niowenmal, compromising the PSC's Constitutionally-enshrined independence and ignoring procedural requirements.
FINDING NO. 4 - BLATANTLY UNREASONABLE CONDUCT BY MR KORMAN, FORMER PRIME MINISTER
9.4 Mr Korman's actions in appointing an unqualified individual to the senior position of Director of Health in February 1996, and subsequently re-appointing this individual immediately after he had been dismissed for mishandling government funds, were blatantly unreasonable. Mr Korman also ignored the views of his Ministers of Health as well as the Director of Health respecting Mr Niowenmal's incompetence. Mr Korman abused his powers of temporary appointment, and thereby contributed to the deterioration of health services for the people of Vanuatu.
FINDING NO. 5 - BREACH OF LEADERSHIP CODE BY MR KORMAN, FORMER PRIME MINISTER
9.5 By making these appointments in favour of his wantok and fellow UMP member, Mr Korman also violated the Leadership Code by compromising the fair exercise of his official duties. The appointment of Mr Niowenmal after his disciplinary hearing and dismissal was an attempt to usurp the disciplinary function of the PSC and was so unreasonable that it diminishes respect for the Government. In these ways Mr Korman violated Articles 66(1)(a) and (d) of the Constitution.
FINDING N0.6 - BREACH OF THE PUBLIC SERVICE STAFF MANUAL AND ARTICLE 60(4) OF THE CONSTITUTION BY THE FORMER PSC COMMISSIONERS COMPRISING MESSRS WILLIAM MAEL, EDWIN BASIL, NEIL STEVEN AND KALPOVI MANGAWAI
9.6 The former commissioners breached the appointment procedures set out in Clauses 3.11-3.19 of the Public Service Staff Manual when they appointed Mr Niowenmal as Director of Health in May 1995 without following the public service formalities. Furthermore, they violated Art 60(4) of the Constitution by compromising their independence and taking direction from the Prime Minister. To their credit, the PSC commissioners have acknowledged and apologized for their mistakes.
10 RECOMMENDATIONS
RECOMMENDATION NO. 1
THE ATTORNEY GENERAL SHOULD REVIEW WITH EACH INCOMING (OR ACTING) PRIME MINISTER THE LIMITED AUTHORITY TO MAKE TEMPORARY APPOINTMENTS, AND SHOULD PREPARE A STANDARD 'LETTER OF TEMPORARY APPOINTMENT' DESIGNED TO ENSURE COMPLIANCE WITH THE CONSTITUTION (Art 57(4)) AND THE PUBLIC SERVICE STAFF MANUAL (Cl 1.4(f), 3.21)
RECOMMENDATION NO. 2
THE CHAIRMAN OF THE PSC SHOULD ENSURE THAT ALL INFORMATION WHICH MAY ASSIST IN THE OBJECTIVE, INDEPENDENT ASSESSMENT OF CANDIDATES
IS AVAILABLE TO THE PSC IN THE RECRUITMENT PROCESS (including personnel and disciplinary records, criminal records, and Ombudsman
findings)
RECOMMENDATION NO. 3
MR KORMAN SHOULD NEVER AGAIN BE APPOINTED TO THE COUNCIL OF MINISTERS[2]
Dated this 29th day of April 1998.
MARIE-NOËLLE FERRIEUX PATTERSON
OMBUDSMAN OF THE REPUBLIC OF VANUATU
11 APPENDICES
E. Mr Regenvanu’s reply.
F. Mr Kalpovi Mangawai’s reply .
G. Mr Edwin Basil’s reply.
FINAL REPORT - Recipients
1. Prime Minister - Donald Kalpokas
2. Attorney General - Ham Bulu
3. Head of PSC
4. President
5. Korman, Niowenmal, Mael, Mangawai, Basil, Steven, Regenvanu
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[1]Public Report on the Premature Birth and Death of Newborn Twins at Vila Central Hospital, 28 May 1997; Public Report on the illegal
Hospitals Panel Signs Contract entered into by Mr Yves Niowenmal, the former Director of Health Department, 1 October 1997; Improper
Appointments and Promotions of Health Workers in November 1995, 17 April 1998.
[2]Similar recommendations have been made in earlier Ombudsman reports.
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