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Vanuatu Ombudsman's Reports |
REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN
PUBLIC REPORT
IMPROPER APPOINTMENT OF MALE NURSE PETER YUNAK
11 June 1998
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Preamble
'He that hath no rule over his own spirit is like a city that is broken down and without walls'
Proverbs Ch 25 v 28
This reports concerns a matter of the greatest betrayal of trust, and the indulgence of wicked appetites at the expense of innocent and helpless victims. It is a very sad reflection on the lack of morals fibre and trustworthiness, not only on the part of the assailant but on those who schemed to put him back into a position where he had clearly shown himself unable to control his shameful desires. This type of exploitation must be stamped out by making wise and appropriate appointments to positions of responsibility.
Summary
The Ombudsman conducted an inquiry following a complaint received from a concerned citizen that a male nurse convicted of raping a young female patient and of escaping from prison had been reappointed into the Public Service.
During the investigation, it was discovered that Mr Charles Nako, the Minister responsible for prisons had acted contrary to law by releasing his cousin, Mr Peter Yunak, on licence from prison. Mr Nako then re-employed him as a Staff Nurse through the illegal exercise of his power of making temporary appointments as Acting Prime Minister.
Mr Yunak remains as a member of temporary staff in a dispensary in Santo. He continues to work without supervision or restriction and was recently provided training in the area of sexual health!
The facts indicate that former Directors of Heath, Mr Niowenmal and Mr Wabaiat, were aware of the situation but failed to take any steps. The Ombudsman recommends that if Director General Johnson Wabaiat delays further in reviewing Mr Yunak's appointment and position, his conduct be considered a matter for the PSC disciplinary board.
The Ombudsman also recommends that Mr Yunak's appointment be reviewed in light of its invalidity and that his nursing responsibilities be immediately changed so that he does not attend to female patients unsupervised nor does he work or receive training in the fields of sexual or reproductive health. Further, the Ombudsman recommends that the Health Department develop a policy where male health practitioners in the Public Service do not undertake intimate examinations of female patients except in the presence of a third party.
Development of public, written criteria and procedures for the early release of prisoners as well as counselling and treatment for imprisoned sex offenders to assist in rehabilitation is also recommended by the Ombudsman.
The Ombudsman also recommends that facts and findings in reports be considered by PSC if either Mr Niowenmal or Mr Nako applies for a position in the public service, and further that Mr Nako not be reappointed to the Council of Ministers in the event that he is re-elected to Parliament in future.
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PUBLIC REPORT
ON THE
IMPROPER APPOINTMENT OF MALE NURSE PETER YUNAK
TABLE OF CONTENTS
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2. PURPOSE, SCOPE OF INVESTIGATION and METHODS USED
2.1 The purpose of this report is to present my findings in accordance with Article 63 of the Constitution and Section 24 of the Ombudsman Act.
2.2 The scope of this investigation is to ascertain the relevant facts with respect to the appointment of Peter Yunak and to determine in effect whether the conduct of Mr Nako in releasing Mr Yunak from jail on license and reappointing him was proper, the conduct of Directors of Health Messrs Niowenmal, Kalorib and Wabaiat was proper; and if Mr Nako breached the Leadership Code.
2.3 In particular, I wanted to determine whether the former Acting Prime Minister Mr Nako illegally reinstated Mr Peter Yunak to the position of Nurse, and whether the former Director of Health Mr Niowenmal improperly continued Mr Yunak’s appointments, without following proper recruitment procedures and despite the fact that Mr Yunak had been convicted of two serious criminal offences.
2.4 Also, I wanted to establish whether the former Minister responsible for Prisons, Mr Nako acted illegally by releasing Mr Yunak on Licence for a term of less than the unexpired portion of his prison sentence.
2.5 Part of my investigation was to also determine the circumstances of Mr Yunak being trained in Sexual Health for the Community despite his conviction for rape of a patient.
2.6 This Office acquires relevant information and documentation by informal request, summons, correspondence, personal interviews and research.
2.7 This report was conducted following a complaint received from a concerned citizen.
3. OUTLINE OF EVENTS
3.1 In June 1984, the Public Service Commission appointed Mr Yunak as a nurse in the Department of Health.
3.2 On 7 January 1988, Mr Yunak was reprimanded with a warning for his conduct in October of the previous year. It was on 17 October 1987 that Mr Yunak was reported to have approached the Outpatients Ward at the Vila Central Hospital ('VCH'), under the influence of alcohol. Once there, he was reported by Dr. Tavoa to have used bad language, abusive words and alleged to have struck a staff nurse on duty that night.
3.3 On 3 October 1989, Mr Yunak was charged with the rape of a patient. The Supreme Court judgement indicates that Mr Yunak asked a young pregnant woman to have sex with him. When she repeatedly refused, he deceived her by pretending that an act of intercourse was a necessary part of her physical examination, and that he was a doctor. In this manner Mr Yunak raped this naive young woman on two known occasions. Chief Justice Cooke stated in his judgement:
From the demeanour of the girl in the witness box it was obvious to me that she was an innocent girl having her first experience of bearing a child and first experience visiting a clinic and could well have believed all that the accused said to her. In my opinion she did not consent to sexual intercourse. She submitted because in her innocence she thought what the accused did to her had to be done as he said all doctors did what he did i.e. insert their penis into patients’ vagina.
The full judgement is not attached to this Report due to its explicit nature.
3.4 On 27 November 1989, Mr Yunak was convicted of Rape and sentenced to four years’ imprisonment by the Supreme Court. Mr Yunak appealed this decision and was released on bail. On 26 October 1990, Mr Yunak’s appeal was dismissed by the Court of Appeal. Mr Yunak was admitted to Isangel (Tanna) Prison on 18 November 1990 to begin his sentence of four years. Correspondence from Inspector Taipairangi of the Vanuatu Police in Tafea is attached as Appendix A.
3.5 On 18 April 1990, Mr Yunak formally resigned his position by sending a letter to the Director of Health, stating his reasons as the rape charge and conviction. This letter is attached as Appendix B.
3.6 While in prison, Mr Yunak escaped from prison. On 12 May 1991, he was convicted of escape and sentenced to three months imprisonment by the Supreme Court. See Appendix A.
3.7 On 25 December 1993, Mr Yunak was Released on Licence by then Minister responsible for Prisons, Mr Nako, along with all other prisoners in Vanuatu. At that point, Mr Yunak had served approximately 13 months in prison, with over three years remaining to be served. Mr Yunak was released subject to the conditions that he 'keep the peace and be of good behaviour' for a period of two years, ending 25 December 1993. The relevant Order is attached as Appendix C.
3.8 On 29 January 1992, Mr Yunak was informed by letter from the Minister of Health, Ms Hilda Lini that his letter of application for re-employment in the Health Department was rejected on the grounds of his previous records of misconduct, and his term of imprisonment. Ms. Lini advised Mr Yunak that according to the rules of the Public Service, he is not entitled to be re-employed by the Public Service until several years have passed.
3.9 On 10 December 1993, the then Minister of Health, Mr Nako as Acting Prime Minister appointed Mr Yunak on a temporary basis on a salary scale of P4 as a nurse at the VCH. The appointment was for an indefinite period. Mr Nako’s letter also explicitly stated that the appointment was subject to the rules of the Public Service as stipulated in the Public Service Staff Manual. The letter of temporary appointment, dated 6 January 1994 is attached as Appendix D. It is noteworthy that Mr Nako was Acting Prime Minister for only a very short period while the Prime Minister and Deputy Prime Minister were out of the country.
3.10 On 2 August 1994, the Director of Health Mr Niowenmal authorised the transfer of Mr Yunak from VCH to the Northern District Hospital in Santo as a staff nurse with immediate effect as from 7 August 1994. Mr Niowenmal informed Mr Yunak on 26 September 1994 that he was transferring him again from the Northern District Hospital to the Tassiriki Dispensary on South Santo with effect as from 3 October 1994. The letters of transfer are attached as Appendices E and F.
3.11 One Health Department Staff was advised on 8 August 1996 of our inquiry. The subsequent Director of Health Mr Johnson Wabaiat was directly contacted as a witness from 4 October 1997 and was informed thoroughly of the contents and grounds of our investigation.
3.12 According to Mr Wabaiat, Mr Yunak had been later transferred to Fanafo Dispensary on Santo, where he is presently working. Mr Yunak continues to be listed as 'Temporary Staff' and is paid a salary of approximately VT 408,696 at level P4.1.
3.13 Mr Wabaiat confirmed to us in February 1998 that he would take action to remedy the situation. However, despite a further reminder, no steps were taken to nullify Mr Yunak's appointment nor to remove Mr Yunak from a dispensary situation where he practices alone and has no direct supervision.
3.14 This Office was recently advised that Mr Yunak had been sent to Vila for training sessions on matters of Sexual Health in the Community. As Mr Wabaiat has yet to take any action on Mr Yunak's appointment or on curtailing his responsibilities, the absurdity of Mr Yunak’s selection for this training course was overlooked.
3.15 Mr Nako and Mr Yunak are first cousins. Mr Nako signed the Order releasing Mr Yunak from prison in 1991. Despite these facts, Mr Nako wrote to this office stating that Mr Yunak is a distant relative, and that he was not aware of the conviction and penalty. Correspondence from Mr Nako is attached as Appendix G.
4. RESPONSES TO THE PRELIMINARY REPORT
4.1 The Preliminary Report in this matter was issued on 14 April 1998 in compliance with Article 62(4) of the Constitution and Section 16(4) of the Ombudsman Act, which require that the person or body complained of be given an opportunity to reply to the complaints made against them. Responses were received from Mr Wabaiat, Mr Kalorib and Mr Yunak.
4.2 Mr Wabaiat commented that the delay in taking action was due to the;
transitional period of changes for Directors, together with 1997 financial constraints when I took up office,
as well as the time taken up from his other duties. He also suggests that a transfer of Mr Yunak could not take place until passage of the 1998 Appropriation Bill. The more lengthy discussion in his statement is attached as Appendix H.
4.3 Mr Kalorib visited the office to say that he was unaware of the matter, that it was never brought to his attention during his term as Acting Director of Health from August 1996 to August 1997. This is verifiable as this office sent correspondence to Mr Kalorib in October 1997 informing him of our inquiry, a time when he was already out of his office.
4.4 In his response to the preliminary report, Mr Yunak does not dispute the facts, indicates that he was not aware that his release and reappointment were contrary to law, and stresses that he has been rehabilitated through a conversion to Christianity (Refer to Appendix I).
4.5 In particular, Mr Yunak stresses that at the time,
C. Nako foma minista blong home affairs i bin rilisim mifala every prisoners long Vanuatu be ino mi nomo
and
Mi no bin askem minista blong rilisem mi long prison be from we hemi ting se hemi gat raet ia meikem se mifala evrywan i bin release.
Mr Yunak is saying that at the time, he was not the only prisoner released, all other prisoners were also freed. Also, he had never asked Mr Nako to release him because Mr Nako thought he had the authority to order the releases, which meant releasing all prisoners.
We accept that Mr Yunak was not specially selected. However, this does not alter the content of Findings 1 and 2.
4.6 Mr Nako and Mr Niowenmal have not responded and must be taken to agree with the facts as stated in the Report.
5. RELEVANT LAWS
The Prisons (Administration) Act [CAP 20]
5.1 This Act provides for the establishment, maintenance and administration of prisons. In particular, s. 30(1) states that:
The Minister may order the release of any prisoner on licence for the period of the unexpired portion of his sentence subject to such conditions as may be prescribed in the said order.
The Constitution
5.2 Art 66 (1) of the Constitution provides:
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 to 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
'Leaders' includes 'the Prime Minister and other Ministers' (Art 67).
5.3 Art 57 (4) states:
The Prime Minister or the chairman of a Local Government Council, may exceptionally, make provision for the recruitment of staff for a specified period to meet unforeseen needs.
The Public Service Staff Manual
5.4 Art. 1.4 (f) of the Public Service Staff Manual states that throughout its orders,
'temporary officer' or 'temporary appointment' means an officer appointed by a Letter of Temporary Appointment, and recruited for a short-term appointment expected to come to an end in a few weeks or months because of the return of the substantive holder of the post or because of the completion of normal recruitment procedures
5.5 Art 2.3 (b) continues that no person may be appointed to an office in the Public Service:
unless he is of good character, but a person with a criminal conviction may be considered for appointment if he has not been convicted of an offence for a period of not less than 4 years, and there is no known reason to suppose that he is not a reformed character and fit for Appointment in the Public Service
5.6 The role of the Public Service Commission and the procedures for appointment of public servants are included in articles 3.5 - 3.19.
6. FINDINGS
6.1 FINDING NO. 1 MR NAKO THEN MINISTER RESPONSIBLE FOR PRISONS, ACTED ILLEGALLY BY RELEASING MR YUNAK ON LICENCE FOR A TERM OF TWO YEARS
6.1.1 The Prisons (Administration) Act allows the Minister responsible for Prisons to release prisoners on licence 'for the period of the unexpired portion of his sentence'. The unexpired portion of Mr Yunak’s sentence was over 3 years. Consequently, Mr Nako acted illegally by granting Mr Yunak a Release on Licence for a period of only 2 years.
6.2 FINDING NO. 2 THE ADMINISTRATIVE PRACTICE EXERCISED UNDER s. 30 OF THE PRISONS (ADMINISTRATION) ACT IS DEFECTIVE
6.2.1 The Minister responsible for Prisons exercises his discretion to remit a portion of prisoners' sentences without the benefit of publicly-available, written criteria and procedures. As a result, we have an arbitrary and confused system of early release. This may be compounded by the parallel powers of the President to reduce sentences, without coordination or communication between the two procedures. This defect in administrative practice, or in the law itself, may be addressed through internal policy or, more effectively, through legislative change.
6.3 FINDING NO. 3 FORMER ACTING PRIME MINISTER MR NAKO’S TEMPORARY APPOINTMENT OF MR YUNAK WAS CONTRARY TO THE CONSTITUTION AND THE PUBLIC SERVICE STAFF MANUAL
6.3.1 According to s. 57(4) of the Constitution, the Prime Minister may recruit staff to the public service only 'exceptionally', 'for a specified period' and 'to meet unforeseen needs'. The Public Service Commission is otherwise responsible for all public service appointments (s. 60). Whether or not Mr Yunak's appointment was exceptional and met unforeseen needs, it certainly was not for a specified period. The appointment letter provided for an indefinite period of service, which may be terminated by either party on notice. Mr Nako violated the Constitution by making this appointment. Mr Yunak’s appointment was thus contrary to law and ineffective.
6.3.2 Mr Yunak's most recent criminal conviction was in May, 1991. Consequently, according to Article 2.3(b) of the Staff Manual, Mr Yunak was not eligible for appointment in the public service until at least May, 1995. The appointment by Mr Nako commencing December 1993, was in violation of the terms of the Staff Manual.
6.4 FINDING NO. 4 MR NAKO VIOLATED THE LEADERSHIP CODE WHEN RELEASING HIS COUSIN FROM PRISON AND WHEN APPOINTING HIS COUSIN TO THE PUBLIC SERVICE
6.4.1 By taking responsibility for decisions which benefited his first cousin, Mr Nako placed himself in a position where there was a conflict of interest and in which the fair exercise of duties might be compromised. He abused his Ministerial powers and his temporary Prime Ministerial powers to gain advantage for a family member. This was a breach of section 66(1)(a) of the Constitution.
6.4.2 Mr Nako allowed his integrity to be called into question by signing the Order releasing his cousin (among others) from prison, and by illegally appointing his cousin to the public service in a position where there was opportunity for re-offending in the same manner as before. In so doing he may have placed the women of this country at unnecessary risk. In this way, Mr Nako violated the Leadership Code, section 66(1)(c) of the Constitution.
6.4.3 Mr Nako also breached section 66(1)(d) of the Leadership Code by acting in such a manner as to 'endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu'. His decision to release and subsequently reappoint his cousin, was based on the benefit of his wantok which meant endangering female patients. In this way, he has breached the trust and confidence of the people of Vanuatu in the Government.
6.4.4 Mr Nako also showed a breach of leadership ethics when he wrote to the Ombudsman that Mr Yunak was a distant relative when in fact he was a first cousin.
6.5 FINDING NO. 5 FORMER DIRECTOR OF HEALTH MR NIOWENMAL'S CONTINUED TRANSFERS OF MR YUNAK WERE CONTRARY TO THE PUBLIC SERVICE STAFF MANUAL
6.5.1 The Staff Manual defines temporary appointments as those expected to end in a matter of weeks or months. The Staff Manual also prescribes proper recruitment procedures, including open, advertised competitions. Mr Yunak could not continue to be considered temporary staff indefinitely, and also could not be considered for public office until 1995 based on his recent criminal conviction as noted above. Mr Niowenmal violated the terms of the Staff Manual by maintaining Mr Yunak’s appointment improperly.
6.6 FINDING NO. 6 MR WABAIAT’S CONDUCT IN NOT REVIEWING MR YUNAK’S APPOINTMENT AND NOT PLACING RESTRICTIONS ON MR YUNAK’S NURSING PRACTICE, WAS BLATANTLY UNREASONABLE AND DELAYED FOR UNJUSTIFIED REASONS
6.6.1 Mr. Wabaiat has been aware of this Office’s investigation since October 1997 or earlier, and was aware that Mr Yunak had been convicted for the rape of a patient in 1989. Given that Mr Yunak perpetrated two rapes through deception in the exercise of his nursing duties, where he had occasion to examine women alone, it was Mr Wabaiat’s responsibility (once aware of the matter) to ensure that other women seeking government-sponsored medical care were protected from such incidents. Yet, Mr Yunak continues to work as a Staff Nurse at Fanafo Dispensary in Santo without supervision, seeing patients on his own.
6.6.2 Mr Wabaiat chose not to have the propriety of Mr Yunak’s appointment reviewed despite evidence that the appointment appeared to be illegal and hence void. Furthermore, Mr Wabaiat could have immediately ensured that Mr Yunak’s nursing practice was restricted: at the very least a convicted rapist should not be permitted to attend upon women patients without supervision, particularly not where intimate examinations may be warranted. Mr Yunak certainly was not an appropriate candidate for training in sexual health! Given the high incidence of recidivism among sex offenders, Mr Wabaiat, along with Messrs Niowenmal and Nako, placed the women of this country at unnecessary risk of manipulation and violation.
7. RECOMMENDATIONS
7.1 RECOMMENDATION NO. 1 THE PUBLIC SERVICE COMMISSION AND THE PRIME MINISTER TO REVIEW THE VALIDITY OF MR YUNAK'S APPOINTMENT IN LIGHT OF FINDINGS 3, 4 AND 5
7.2 RECOMMENDATION NO. 2 THE PUBLIC SERVICE COMMISSION TO RECRUIT FOR THE POSITION USING THE PROCEDURES SET OUT IN THE PUBLIC SERVICE STAFF MANUAL, IF MR YUNAK'S APPOINTMENT IS DEEMED A NULLITY AS SUGGESTED BY THE FINDINGS AND IF A NURSING VACANCY PROPERLY EXISTS
7.3 RECOMMENDATION NO. 3 MR WABAIAT TO IMMEDIATELY ENSURE THAT MR YUNAK'S NURSING RESPONSIBILITIES ARE SUCH THAT HE DOES NOT ATTEND TO FEMALE PATIENTS ON HIS OWN AND HE DOES NOT WORK OR RECEIVE TRAINING IN THE FIELDS OF SEXUAL OR REPRODUCTIVE HEALTH
7.4 RECOMMENDATION NO. 4 IN THE EVENT OF FURTHER DELAY BY MR WABAIAT, THE PSC TO INVESTIGATE THE SITUATION WITH A VIEW TO CONVENING A DISCIPLINARY BOARD HEARING ON THE GROUNDS OF NEGLIGENCE IN THE DISCHARGE OF HIS DUTIES
7.5 RECOMMENDATION NO. 5 MR WABAIAT TO ENSURE THE DEVELOPMENT OF AN INTERNAL POLICY STATING THAT MALE HEALTH PRACTITIONERS IN THE PUBLIC SERVICE NOT UNDERTAKE INTIMATE EXAMINATIONS OF FEMALE PATIENTS EXCEPT IN THE PRESENCE OF A THIRD PARTY (another health practitioner or the woman's friend or family member).
7.6 RECOMMENDATION NO. 6 THE DIRECTOR-GENERAL OF INTERNAL AFFAIRS, TOGETHER WITH HIS MINISTER AND THE SUPERINTENDENT OF PRISONS, AND WITH THE ADVICE OF THE ATTORNEY GENERAL, TO DEVELOP PUBLIC, WRITTEN CRITERIA AND PROCEDURES FOR THE RELEASE OF PRISONERS UNDER THE PRISONS (ADMINISTRATION) ACT (ss. 30,31), AND TO ENSURE THAT THE PROCEDURES INCLUDE COORDINATION WITH THE EXERCISE OF PRESIDENTIAL POWERS UNDER Art 38 OF THE CONSTITUTION.
7.7 RECOMMENDATION NO. 7 THE DIRECTORS-GENERAL OF INTERNAL AFFAIRS AND HEALTH, TOGETHER WITH THE SUPERINTENDENT OF PRISONS AND THE DIRECTOR OF HEALTH, TO DEVISE WAYS OF PROVIDING COUNSELLING AND TREATMENT TO IMPRISONED SEX OFFENDERS TO ASSIST IN REHABILITATION .
7.8 RECOMMENDATION NO. 8 IN THE EVENT THAT MR NIOWENMAL OR MR NAKO APPLIES FOR A POSITION WITHIN THE PUBLIC SERVICE, THE PSC TO CONSIDER THE FACTS AND FINDINGS IN THIS REPORT (as well as earlier Ombudsman reports)
7.9 RECOMMENDATION NO. 8 MR NAKO NOT TO BE RE-APPOINTED TO THE COUNCIL OF MINISTERS (in the event that he is re-elected to Parliament in future)
8. CONCLUSION
8.1 In accordance with Article 63(2) of the Constitution and Section 22 of the Ombudsman Act, the Ombudsman requests the Prime Minister and his Director General, the Minister of Internal Affairs and his Director General, the Director General of Health, and the Chairman of the Public Service Commission to consider these recommendations and to put them into effect.
8.2 The Office of the Ombudsman must be notified within 21 days of the date of this report outlining the decision and steps proposed to implement the recommendations.
Dated this 11th day of June 1998.
Marie-Noëlle FERRIEUX PATTERSON
OMBUDSMAN OF THE REPUBLIC OF VANUATU
11. APPENDICES
A. Inspector Taipairangi’s letter
B. Mr Yunak’s resignation letter
D. Mr Yunak’s letter of Temporary Appointment
E. Mr Yunak’s letter of transfer to Northern District Hospital
F. Mr Yunak’s letter of transfer to Tassiriki Dispensary
H. Mr Wabaiat’s response to our preliminary report.
I. Mr Yunak’s response to our preliminary report.
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