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Failure of 150 Leaders to Declare 2004 Annual Returns [2006] VUOM 4; 2008.08 (15 December 2006)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE FAILURE OF 150 LEADERS TO DECLARE THEIR 2004 ANNUAL RETURNS TO THE CLERK OF PARLIAMENT

15 December 2006

5000/2006/08

The Ombudsman is issuing this Public Report as required by section 34 of the Leadership Code Act 1998 [LCA] to investigate and report on the conduct of leaders who have breached the LCA.

Section 31 of the LCA requires those persons who occupy positions of leadership as identified by Article 67 of the Constitution and section 5 of the LCA to declare their annual returns for the preceding year to the Clerk of Parliament by 1 March each year.

A leader who fails to declare his or her annual returns even after being reminded by the Clerk of Parliament is guilty of a breach of the LCA and is liable to be investigated by the Ombudsman. The Clerk of Parliament is responsible, under section 32 of the Leadership Code [Amendment] Act 1999; for submitting a list of leaders who have declared their annual returns and those who have failed to submit their annual returns to the State Law Office to be published in the Official Gazette.

On 11 July 2005, Extraordinary Gazette No. 3 was published in which the names of 166 leaders were listed as those who had failed to declare their 2004 Annual Returns.

After due enquiry, the Ombudsman found that:

[i] only 150 leaders failed to declare their 2004 Annual Returns.

[ii] 32 of the 150 leaders took the liberty to declare their 2004 Annual Returns following the enquiry that was made by the Ombudsman, yet included in this report as their declaration was made after the date required by the LCA.

[iii] the leaders who failed to submit their 2004 Annual Returns have breached the LCA.

From the above findings, the Ombudsman makes the following recommendations that:

[i] Part 4 of the LCA be amended that the provisions of the Annual Returns is administered by the Office of the Ombudsman. This would be more convenient since there is a leadership code section that handles leadership complaints.

[ii] the Government authorities legally empowered to appoint and terminate persons from leadership positions must include, as part of their administrative role, the duty to inform the Clerk of Parliament in writing immediately after every appointment or termination of any leader so that the Clerk of Parliament can keep an update of who the leaders are.

[iii] Parliament must keep a good and an up-to-date record of the Annual Return documents.

[iv] the LCA be amended to provide for Secretary Generals of the Provincial Councils, Town Clerks of Municipalities, Chairman of Government Statutory Bodies to be responsible for the distribution of Annual Return forms to leaders under their authority. This is to avoid late submission of Annual Returns each year which is in breach of the LCA.

[v] The Government set up a committee to formulate an induction programme for persons appointed to leadership positions to assist them in understanding their responsibilities under the Constitution and the LCA. Ignorance of the law is no excuse.

Leaders need to know that it is their duty to obtain, complete and submit their Annual Returns forms to the Clerk of Parliament within 2 months of becoming a leader or by 1 March each year.

[vi] the Annual Return forms be simplified and translated into Bislama so that it is more understandable by those who do not speak and understand either English or French.

[vii] Section 31 to 33 of the LCA is amended to give the Ombudsman the authority to scrutinize all annual returns that are submitted each year. This is to avoid false declaration of information of what a leader owns.

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TABLE OF CONTENTS

1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS
4. OUTLINE OF EVENTS
5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES

1. JURISDICTION

1.1 This report is made in accordance with the Constitution and the Leadership Code Act [LCA].

The LCA gives authority to the Ombudsman to enquire into the conduct of leaders who failed to file their Annual Returns to the Clerk of Parliament by 1St March 2005. Leaders who failed to file their 2004 Annual Returns are in breach of s.31 and 33 of the LCA.

2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

2.1 The purpose of this report is to present the Ombudsman's findings as required by the Constitution, the Ombudsman Act and the LCA.

2.2 The scope of this investigation is to establish the facts about the failure of certain leaders who failed to declare their 2004 Annual Returns to the Clerk of Parliament by 1St March 2005 as published in the Extraordinary Gazette No. 3 that was issued on 11 July 2005. This is to determine whether these leaders have breached the LCA and required further investigation by the Police and prosecution by the Public Prosecutor as required by the provisions of the LCA.

2.3 This Office collected information and documents by informal request, summons, letters, interviews and research.

3. RELEVANT LAWS

3.1 Relevant parts of the following laws are reproduced in Appendix `A'.

Constitution of the Republic of Vanuatu

Leadership Code Act 1998

Leadership Code (Amendment) Act 1999

4. OUTLINE OF EVENTS

4.1 Section 31 of the LCA [refer to Appendix `A'] requires all leaders to complete an annual return for the preceding year setting out details of the leader's assets and liabilities in accordance with the form in the Schedule and submit it to the Clerk of Parliament by 1 March in each year.

4.2 Section 33 of the LCA [refer to Appendix 'A'] also provides that a leader who has not submitted his or her Annual Return by the required date will be warned by the Clerk of Parliament in writing of his or her failure to do so and will be given a further 14 days to file an annual return. If a leader still fails to submit an annual return after being warned by the Clerk, then he or she is guilty of a breach of the LCA.

4.3 Pursuant to the above statutory requirement, by 1st March 2005, all persons identified as holding positions of leadership as specified by Article 67 of the Constitution [refer to Appendix `A'] and section 5 of the LCA [refer to Appendix 'A'] were required to submit their 2004 Annual Returns.

4.4 Section 32[3] of the Leadership Code [Amendment] Act 1999 [refer to Appendix 'A'] states that the Cleric of Parliament must publish in the Gazette on or before 14 March in each year a list of the leaders who have given or failed to give the Clerk an annual return. The list must set out the leader's name and the position the leader holds.

4.5 On 11 July 2005, the Extraordinary Gazette No. 3 was published which contained the list of leaders who had submitted their 2004 Annual Returns to the Clerk of Parliament and the list of leaders who had failed to submit their 2004 Annual Returns to the Clerk of Parliament and after having been warned by the Clerk.

4.6 166 leaders were listed as those who failed to submit their 2004 Annual Returns. [refer to Appendix `B' to view this list].

Enquiry by the Ombudsman

4.7 As it is the role of the Ombudsman under section 34 of the LCA [refer to Appendix `A'] to investigate leaders who may have breached the LCA, the Ombudsman issued letters of enquiry on 21 September 2005 to all those leaders whose names appeared in the Extraordinary Gazette No. 3 as leaders who failed to submit their 2004 Annual Returns.

4.8 On 22 September 2005, the Ombudsman received a response from Mr laris Naunun, Member of the Board of Directors for Air Vanuatu. Mr Naunun stated that he was responding on behalf of himself and the other Board members that did not submit their 2004 Annual Returns. Mr Naunun stated that the reason why they had not submitted their 2004 Annual Returns was because the Chief Executive Officer of Air Vanuatu did not provide the Annual Return form to them to complete. As they did not see the Forms, they did not submit their Annual Returns.

4.9 The Director of the Department of Youth and Sports, Mr Ture Kailo responded by phone to the Ombudsman's letter of enquiry on 22 September 2005. Mr Kailo stated that he did not receive any Annual Return form from the Clerk of Parliament which is why he did not submit his 2004 Annual Returns.

On 3 October 2005, the Ombudsman received a letter from Mr Kailo in which he advised that he had filled in an annual return form and submitted it to the office of the Clerk of Parliament but it appears that it was not received by them. He has therefore resubmitted another form to the office of the Clerk of Parliament on 22 September 2005. A copy of the form was provided to the Ombudsman's office.

4.10 A response from the Director General of the Prime Minister's Ministry, Mr Jean Sese, was received by the Ombudsman on 23 September 2005. Mr Sese advised that his failure to submit his 2004 Annual Returns was simply an oversight on his part. However, his 2004 Annual Return would not be different to that of 2003. The only remuneration he receives is from the Government for the position he currently occupies.

4.11 A response from the Director General of the Ministry of Infrastructures and Public Utilities, Mr Manasseh Tary, was received by the Ombudsman on 23 September 2005. Mr Tary sincerely apologised for not submitting his 2004 Annual Returns. His failure to submit his 2004 Annual Returns was not intentional but was an oversight due to his workload. He further stated that he was now willing to submit his Annual Returns on 3 October 2005.

4.12 The Ombudsman received a response from the Honourable Member of Parliament and Minister of Cooperatives and Ni-Vanuatu Business, Joshua T. Kalsakau on 23 September 2005. Honourable Kalsakau stated that as his appointment as a Minister was officiated on Saturday 11 December 2004, it does not warrant the submission of an Annual Return for 2004.

Honourable Kalsakau was informed in a letter from the Ombudsman dated 13 October 2005 that regardless of whether or not he was a Minister of State, he was still required to submit his 2004 Annual Returns as he is a Member of Parliament and thus a leader as per Article 67 of the Constitution.

The Ombudsman received a response from Honourable Kalsakau on 25 October 2005 in which the Ombudsman was advised that an annual return has been lodged with the Clerk of Parliament for the preceding year.

4.13 The Ombudsman received a response from member of the Health Practitioners Board, Mrs Leitangi Barry on 23 September 2005. Mrs Barry stated that she does not remember if she saw the Annual Return form that the Clerk of Parliament had sent them. Furthermore, she is a low income earner and as a member of the said Board, she does not receive any allowance for this duty such as seating allowance. She also does not recall if she has submitted an annual return in the past years.

4.14 The Ombudsman received a response from the Government Press Officer, Mr Patrick Crowby on 26 September 2005. Mr Crowby stated that he believes that he had completed an Annual Return form for his 2004 returns when he was still the Lord Mayor but maybe his officers then did not deliver it to the office of the Clerk of Parliament. He was Lord Mayor from 17 October 2003 to 17 December 2004 when he resigned to be the Public Relation Officer in the Prime Minister's Office. He has however, completed an Annual Return form for his 2004 returns and is now submitting a copy to the Ombudsman.

The Clerk of Parliament informed the Ombudsman in a letter dated 28 September 2005 that his Office has not received an annual return form from Mr Crowby [nor his officials] stating his 2004 Annual Returns either as the Lord Mayor of Port Vila nor as an Information Officer or Political Advisor in the Prime Minister's office.

4.15 The Ombudsman received a response from the Honourable Minister of Agriculture, Barak T. Sope Maautamate, on 26 September 2005. The Ombudsman was advised by the Minister that he had submitted his 2004 Annual Return form to the Clerk of Parliament on 23 June 2005.

The Clerk of Parliament confirmed with the Ombudsman on 28 September 2005 that his Office received Honourable Maautamate's 2004 Annual Return on 23 June 2005.

4.16 Mrs Votausi L. Mackenzie-Reur, Director of the Department of Postal Services responded to the Ombudsman's letter of enquiry on 27 September 2005. She stated that she had completed the Annual Return form in April 2005 with the intention of submitting it to the Clerk of Parliament. However, she had forgotten to do so and only realized this after receiving the Ombudsman's letter. She apologised for this and for breaching the LCA and also stated that as of the date of her letter, she has submitted her annual returns to the Clerk of Parliament.

4.17 The Ombudsman received a response from the Public Solicitor, Mr Stephen Joel on 28 September 2005. Mr Joel raised the following points in his letter of response:

• On 30 September 2004, he served his Excellency President Kalkot Mataskelekele with his 3 months notice to resign, effective from 31 December 2004.

• In an extraordinary meeting of the Judicial Services Commission on 24 December 2004 that was chaired by the Prime Minister, Mr Joel was directed to serve until 2 weeks after the appointment of his successor.

• On 4 February 2005, he took leave to travel with his son to his new school on Pentecost. Coincidentally, Mr Joel's eldest brother who was a Senior Compliance Officer of the Quarantine Department passed away on 9 February 2005 whilst Mr Joel was with him in Santo. He then rang his Office requesting extension of his leave to attend his brother's funeral on Ambae.

• He returned to Santo after the 10th day funeral ceremony to find that he had not been paid any salary since 15 January 2005.

• He returned to Port Vila but uncertainty in his status warranted that he spent time between the Office; to ensure that work progresses smoothly and his home to minimize costs as he was not receiving any salary.

• After pursuing payment of his salary, it was reinstated about the end of April or the beginning of May 2005.

• In May 2005, he attended his brother's 100 days customary funeral ceremony.

• The appointment of his successor took place on 18 July 2005 and he left Office on 30 July 2005.

Due to the above circumstances, Mr Joel stated that he did not stop to think about his obligation under the LCA because he was not sure whether or not he was still the Public Solicitor on the day that this requirement was due as he was worrying about pay, job and his future whilst at the same time, was in mourning.

Nevertheless, upon receiving the Ombudsman's letter, he has composed his 2004 Annual Return form which has been submitted to the Clerk of Parliament.

4.18 Mr Jeffery Wilfred, Director General of the Ministry of Agriculture, Quarantine, Forestry and Fisheries, responded to the Ombudsman's letter of enquiry on 28 September 2005. Mr Wilfred stated that he believed that he has submitted his 2004 Annual Return because he has always submitted an annual return since the LCA came into effect. If he has not submitted his 2004 Annual Return, it would be largely due to an oversight rather than neglect. Once he locates his annual return, the Ombudsman will be informed of it.

The Ombudsman did not receive any further response from Mr Wilfred regarding this issue.

4.19 The Ombudsman received a response from Mr Abel Nako, Director General of the Ministry of Education [former] on 28 September 2005. Mr Nako advised that he ceased to serve as the DG as of January 2005. Furthermore, he would like to clarify that as far as he can remember, tie personally hand delivered his Annual Return form to the Clerk of Parliament on or about the actual date it was due. This should be registered in the official register of the Ministry but as he no longer has access to the Ministry of Education's records, he cannot check if a copy of his return is in the secretary's file. He would also be willing to submit his annual return if he is still required to do so and if an annual return form is given to him.

4.20 The Ombudsman received a response from Councillor of the Port Vila Municipality, Mr James Kalo. Mr Kalo advised that his failure to submit his 2004 Annual Returns was based on two reasons. He never received an annual return form from the Clerk of Parliament and during the period in which they were required to submit their Annual Returns they were either suspended as Councillors by the Lord Mayor or they were challenging their case in court. An annual return form was however, completed by Mr Kalo and was forwarded to the Clerk of Parliament by the Ombudsman's Office.

4.21 The Ombudsman received a response from the Director of Planning and Administration [former] of the Ministry of Health [MoH], Mrs Maturine Tary on 29 September 2005. Mrs Tary advised in her response that last year, the MoH was advised to cut down on the number of Directors by the Council of Ministers. Mrs Tary's department and her position were therefore in the process of being abolished. The 2005 budget prepared in May 2004 transferred her position and salary from Director Planning and Administration to Senior Research Administrator. In 2005, the Public Service Commission approved the restructuring and abolished the position of Director Planning and Administration so she is currently waiting for her redundancy notice which was supposed to be effective as of 2005. Her current work now focuses on Research and Planning and it is not budgeted for in 2006. All administration work has been transferred to the DG's office as corporate services. These are the reasons why she did not submit her 2004 Annual Return.

4.22 The Ombudsman received a response from Member of the Vanuatu Tourism Board [VTO], Mr Gilles Bourdet, on 29 September 2005. Mr Bourdet raised the following points in his letter:

• His membership in the Board of VTO was due to his capacity as the Commercial Manager of Vanair. Following the merge of Vanair and Air Vanuatu that began in early 2004, Vanair chose not to confuse people and to allow the Air Vanuatu representative to represent both airlines in VTO Board meetings.

• As he did not attend the majority of 2004 meetings and also due to the fact that he did not receive an annual return form, he thought his name had been removed from the leaders listing.

• He also wished to advise that so far in 2005, he had not attended any VTO Board meetings as the Air Vanuatu representative is representing both airlines therefore he would be grateful if his name is removed from the leaders listing or from VTO.

• His submission of 2004 Annual Returns would be the same as that of 2003 as his assets have not changed during this two [2] year period.

• Nevertheless, Mr Bourdet provided a copy of his 2004 Annual Return form which was submitted to the Clerk of Parliament.

4.23 Pastor Youen Atnelo, Member of the Electoral Commission, responded to the Ombudsman's letter of enquiry on 30 September 2005. Pastor Atnelo apologised for failing to submit his Annual Return. The reason for his failure to do so was that he had completed the form as required but his secretary had failed to deliver it to the office responsible. Pastor Atnelo then submitted a copy of the completed Annual Return form indicating his returns for 2004.

4.24 Honourable Steven Kalsakau, Member of Parliament for Efate responded to the Ombudsman's letter of enquiry on 3 October 2005. He stated that he had completed the required form on 8 April 2005 but forgot to post it on that said date. He has now submitted the form and a copy was attached for the Ombudsman's perusal.

4.25 Mr Garae Vatu - Ninisia, Member of the Sanma Provincial Council, responded to the Ombudsman's letter of enquiry on 3 October 2005.

Mr Garae apologised for not submitting his 2004 Annual Return and advised that his failure to do so was because he did not know how to complete some parts of the form. He had asked somebody to assist hire but they did not manage to complete the form and he forgot about it until he received the letter of enquiry. He is sorry for what happened but it is a lesson to him and he will make sure that it does not happen again in the future.

4.26 Mr Gary Blake, Member of the National Bank of Vanuatu Board of Directors responded to the Ombudsman's letter of enquiry on 3 October 2005.

Mr Blake confirmed that he had not submitted his 2004 Annual Returns however, when he was originally appointed to the Board, Mr Ken McArthur [who was then the Managing Director of the Bank] indicated to him in response to specific questions on the subject, that the requirement for lodgement of Annual Returns would no longer apply to appointees such as himself.

Mr Blake further stated that his concerns at that time was the public disclosure of his and his family's financial circumstances although he understands that there is no longer any public disclosure through the Gazette of the contents of such returns. His only concern therefore relates to the confidentiality of the contents of the returns.

Given that he has recently been reappointed to a further term on the Board of NBV, he would be happy to provide the relevant Return both as to 2004 and as to 2005 if necessary and if his confidentiality concerns are satisfied.

The Ombudsman informed Mr Blake in a letter dated 11 October 2005 that Members of the NBV Board are considered to be leaders under section 5 [f] of the LCA. Furthermore, section 32 [1] of the Leadership Code [Amendment] Act 1999 specifically states that all Annual Returns submitted to the Clerk of Parliament must be kept confidential subject to sub section [2] of the same Act. As such, he can be assured that there care be no public disclosures of any annual return filed by a leader. As this section addresses his concern regarding confidentiality, the Ombudsman would be grateful if he is informed that an annual return has been submitted to the Clerk of Parliament by Mr Blake. An annual return form was enclosed with the letter for Mr Blake's perusal.

On 10 November 2005, the Ombudsman received a copy of Mr Blake's 2004 Annual Return declaration that was made to the Clerk of Parliament on 9 November 2005.

4.27 The Ombudsman received a response from the Company Secretary of Air Vanuatu, Mr Hilliman G. Paul on 3 October 2005. Mr Hilliman advised that all those Board members who did not submit their 2004 Annual Returns are based in the islands and only come to Port Vila for Board meetings. They would then be able to comply with this requirement to submit their 2004 Annual Returns to the Clerk of Parliament.

4.28 The Ombudsman received a response from Member of the Board of the Asset Management Unit [AMU], Mr Robert Tasaruru on 29 September 2005.

Mr Tasaruru advised that he did not receive an annual return form which is why he did not submit his 2004 Annual Returns. He contacted the Secretary to the Clerk of Parliament who advised him that an annual return form will be forwarded to him on 30 September 2005 so he can submit his 2004 Annual Returns. He will most probably complete and return the form to the Clerk early the following week.

The Ombudsman did not receive any further confirmation from Mr Tasaruru if he did declare his 2004 Annual Returns

4.29 The Ombudsman received a response from Member of Parliament, Honourable Nipake Edward Natapei on 4 October 2005. Honourable Natapei sincerely apologised for failing to submit his 2004 Annual Returns on 1 March 2005 and stated that this was an oversight entirely on his part. He intended to submit this return before the end of the following week when he returned from his overseas trip to Singapore.

The Ombudsman did not receive any further confirmation from Honourable Natapei that he did declare his 2004 Annual Returns.

4.30 The Ombudsman received a response from Member of the National Bank of Vanuatu Board of Directors, Mr Dudley Aru on 4 October 2005. Mr Aru advised that he has filed his annual returns for the past years but did not submit his 2004 Annual Returns because he did not receive the Annual Return form.

4.31 Mr Maki Simelum, Chief Executive Officer of the Asset Management Unit [AMU] responded to the Ombudsman's letter of enquiry on 4 October 2005. Mr Simelum advised that he received the annual return form from the Clerk of Parliament on 21 February 2005, 8 days before the deadline. He completed the form on 5 March 2005 but as the timing was short (as only one week was given to him to complete the form) and he had to attend to various meetings and customers, he completely forgot about submitting the return on time. He advised that his annual return form would be submitted to the Clerk of Parliament on 4 October 2005.

4.32 On 4 October 2005, the Ombudsman received a response from the following Councillors of the Sanma Provincial Council:

• Mr Natu Muele, President of the Sanma Provincial Council;

• Mr Moses Wayne, Councillor and

• Mr Timothy Nov, Councillor.

They advised that they were so troubled with the situation of instability in the Sanma Provincial Council that they forgot to submit their 2004 Annual Returns. They would however, be most happy to submit all the required information for 2004 and 2005.

The Ombudsman is not aware if the above Councillors did declare their 2004 Annual Returns as per their letter of response.

4.33 Mr Muluane Urbain, Vice President of the Malampa Provincial Council, responded to the Ombudsman's letter of enquiry by phone on 4 October 2005. He advised that when they were sending out the Annual Return forms in 2005, they put the wrong name on his envelope so his form went all the way to Paama. When the envelope was eventually returned to Malekula, he had to leave to go and attend his father-in-law's funeral on Malo. As such, he did not submit his Annual Return. After receiving the Ombudsman's letter, he completed an annual return form and handed it to the President of the Malampa Provincial Council to deliver it for him when he went to Port Vila.

4.34 Mr Michel Holuen, Councillor of the Malampa Provincial Council, responded to the Ombudsman's letter of enquiry by phone on 4 October 2005. He advised that he lives in a remote area on Paama but his Annual Return form was sent to the Provincial Headquarters on Lakatoro, Malekula. When he finally received the form, it was on the day of the deadline. Since he lives in a remote area, he did not fill up the form and therefore did not submit it.

He requested that if there is some way in which they can complete these forms in advance as some of them live in very remote areas.

4.35 Mr George Turiak, Councillor of the Tafea Provincial Council responded to the Ombudsman's letter of enquiry by phone on 6 October 2005. He apologised for not submitting his annual return and then advised that he had received the form from the Clerk of Parliament but he had filed it away in one of his files and forgot all about it. He only remembered the form after receiving the Ombudsman's letter. He further advised that he will submit his annual return before 31 October 2005.

On 7 November 2005, the Ombudsman received a copy of a letter from Mr Turiak to the Clerk of Parliament. In this letter, Mr Turiak confirmed the information relayed by the telephone on 6 October 2005. Upon receiving the letter of enquiry from the Ombudsman, he has now completed the form and is attaching it with the letter to the Clerk [a copy of the form was not provided to the Ombudsman's Office].

4.36 Councillor Koran Sethy of the Malampa Provincial Council responded to the Ombudsman's fetter of enquiry on 7 October 2005 by phone. Mr Sethy advised that he will reply to the Ombudsman's letter later but would appreciate it if an annual return form could be posted to him at Lamap.

On 14 October 2005, the Ombudsman issued a letter to Mr Sethy in which an annual return form was attached. Mr Sethy was requested to keep the Ombudsman informed if he completes the form and returns it to the Clerk of Parliament.

The Ombudsman did not receive any further response from Mr Sethy regarding this issue.

4.37 The Ombudsman received a response from Councillor of the Tafea Provincial Council, Mr Remi Kali on 7 October 2005. Mr Kali advised that he had misplaced the Annual Return form and did not know how to obtain another copy so he did not submit his 2004 Annual Returns as required. He advised that if there is still a need for him to submit his annual returns, then he would appreciate it if a form could be forwarded to him.

On 13 October 2005, the Ombudsman issued a letter to Mr Kali in which an annual return form was attached. Mr Kali was requested to keep the Ombudsman informed if he does submit his 2004 Annual Returns to the Clerk of Parliament.

The Ombudsman did not receive any further response from Mr Kali regarding this issue.

4.38 Mr Jeffrey Mali, Councillor of the Penama Provincial Council, responded to the Ombudsman's letter of enquiry on 7 October 2005. He advised that he lives on the far south of Pentecost and so he did not manage to submit his annual return form to the Clerk of Parliament. He will however, submit his 2004 Annual Returns to the Clerk of Parliament by the end of October 2005.

The Ombudsman did not receive any further response from Mr Moli to confirm if he did declare his 2004 Annual Returns.

4.39 The Ombudsman received a response from Member of Parliament for Port Vila, Honourable Maxime Carlot Korman on 7 October 2005. The Honourable MP advised that he had completed his Annual Return form on 25 February 2005 when he was serving as a Minister of State. However, his secretaries failed to deliver the form to the Clerk of Parliament.

4.40 The Ombudsman received a response from Member of the Police Service Commission, Mrs Rita Bill Naviti on 7 October 2005. Mrs Naviti advised that she deliberately did not file her Annual Return because she considered her position as a judicial officer thus it does not require her to submit an annual return. She is a Magistrate and she did not become a leader because of her appointment as a member of the Police Service Commission. Her appointment was the consequence of her being a judicial officer under CAP 105. Judicial officers do not form part of the leaders defined in the LCA. if she has however, misinterpreted this, then she would like to be informed of it.

Mrs Naviti was informed in a letter by the Ombudsman on 13 October 2005 that section 5 [w] of the LCA clearly states that all members of the Police Service Commission are leaders. As the Act is silent on membership of this Commission by judicial officers, she is still considered to be a leader by virtue of section 5 [w]. The Ombudsman trusts that this addresses her concern on this issue and awaits any further response from her.

No further response was received by the Ombudsman from Mrs Naviti regarding this issue.

4.41 The Ombudsman received a response from Mr Steven Tahi, Director General [former] of the Ministry of Lands on 11 October 2005. Mr Tahi apologised for not submitting his 2004 Annual Returns and stated that this was an oversight on his part due to his heavy work schedule in 2004. He is however, prepared to submit his 2004 Annual Returns if he receives the required forms.

Mr Tahi was informed in a letter by the Ombudsman on 13 October 2005 that the appropriate annual return form can be obtained from the office of the Clerk of Parliament. It would be appreciated if Mr Tahi can inform the Ombudsman's Office if he has submitted his Annual Return.

No further response was received by the Ombudsman from Mr Tahi regarding this issue.

4.42 Mr Joachin Kilfan, Councillor of the Malampa Provincial Council responded to the Ombudsman's letter of enquiry by phone on 12 October 2005. He advised that he did not submit his 2004 Annual Return because he did not receive the annual return form from the Secretary General of the Malampa Provincial Council.

On 20 October 2005, the Ombudsman received by fax, a copy of Mr Kilfan's 2004 Annual Return declaration. This declaration was made on 19 October 2004.

4.43 On 13 October 2005, the Ombudsman received a response from Councillor of the Tafea Provincial Council, Mr Andrew Naling. Mr Naling advised that he had received the annual return form but had filed it away in one of his files and had forgotten about it. After receiving the Ombudsman's letter of enquiry, he completed the annual return form and will deliver it to the office of the Clerk of Parliament by end of October 2005. A copy of the completed Annual Return form for 2004 was also submitted with his letter of response to the Ombudsman.

4.44 Mr Joe Still Tari, Member of the Air Vanuatu and Vanair Board of Directors, responded to the Ombudsman's letter of enquiry by phone on 14 October 2005. Mr Tari advised that when he received the annual return form from the Clerk of Parliament, he asked the Chairman of the Board what it was about and they advised him to keep the form. As such, he never returned the form to the Clerk of Parliament.

4.45 Mr Christopher loan, Director of the Department of Geology, Mines and Water Resources, responded to Ombudsman's letter of enquiry on 14 October 2005 by e-mail from Australia. Mr loan stated that for the purposes of putting records right, it should be noted that since becoming the Director in 1999, he has never failed to submit his annual returns to the Clerk of Parliament. His failure to submit his 2004 Annual Return is an exception due to the fact that he is now in Sydney, Australia to undertake studies for a Master of Science Program in Hydrogeology and Groundwater Management. He arrived in Australia on 12 January 2005 and he has never received an official letter requesting him to submit his annual returns. It could be either the failure of the Department to inform him of the matter or the correspondence not being sent to him directly by mail. He is therefore requesting if an annual return form could be forwarded to him in Australia.

On 26 October 2005, another e-mail was sent by Mr loan from Australia. He advised that since he has not received any annual return declaration form, he has now typed up his 2004 Annual Returns which is to be included in the Ombudsman's report as a late declaration.

On 27 October 2005, a letter from the Ombudsman was sent by e-mail to Mr loan advising him that annual return declarations should be forwarded to the Clerk of Parliament. As such, the annual return declaration form will now be sent to him by mail in which he should complete and forward to the Clerk accordingly. The Ombudsman should be notified if he has submitted the form to the Clerk as he can be considered as a leader who made a late 2004 Annual Return declaration.

No further response was received by the Ombudsman from Mr loan regarding this issue.

4.46 On 17 October 2005, the Ombudsman received a sworn statement from Chairman of the Vanuatu Financial Services Commission, Mr Bill Bani Tamwata. Mr Tamwata confirmed that he did receive the Annual Return Declaration form from the Clerk of Parliament. He then mistiled the letter and therefore failed to submit it prior to the deadline to the Clerk of Parliament as required. Sometime in mid April 2005 or so, he realised that he had not declared his annual returns so he went in person to the Parliament Chambers and obtained another declaration form. He then went to the Provincial Affairs Department where he filled out the form and signed it. That same week, he was also busy with travelling arrangements to go to Port Moresby the following week so he forgot to lodge his declaration form. Unfortunately, he cannot retrieve the original form. Thus, his failure to submit his 2004 Annual Returns was a human error on his part and an oversight but not some devise to avoid the submission.

Mr Tamwata also attached with his sworn statement, a copy of his 2004 Annual Return declaration form that he submitted on 13 October 2005 to the Clerk of Parliament.

4.47 The Ombudsman received a response from Honourable David Tosul, MP for Pentecost on 17 October 2005. Honourable Tosul advised that he received the Ombudsman's letter on 14 October 2005 and that his failure to submit his 2004 Annual Returns was because his home village is very remote as it is located in the far South Eastern part of Pentecost. Thus, he did not receive his Annual Return form from the Clerk of Parliament. However, he has now completed an annual return form, a copy of which was attached with his response. This declaration was made on 14 October 2005 and submitted to the Clerk of Parliament.

4.48 Councillor Bebe Telkon of the Penama Provincial Council responded to the Ombudsman's letter of enquiry by telephone on 21 October 2005. Mr Telkon advised that he did not receive any annual return form from the Clerk of Parliament which is why he did not declare his 2004 Annual Returns. This is due to the remoteness of his village which is located in Pangi, South Pentecost where communication is not really good. He also requested if an annual return form could be forwarded to him so that he can declare his 2004 Annual Returns.

On 10 November 2005, the Ombudsman sent Mr Telkon a copy of the annual return declaration form to Pangi Village, South Pentecost. The Ombudsman is not aware if Mr Telkon did declare his 2004 Annual Return.

4.49 On 24 October 2005, the Ombudsman received a response from the following Councillors of the Shefa Provincial Council:

• Councillor Thompson Taura Willie;

• Councillor Gillion William;

• Councillor Sope Malas;

• Councillor Nowo Vakumali;

• Councillor Morrison Roy;

• Councillor Donald Samuel;

• Councillor Brasio Kaltoua;

• Councillor Johnson Tomol and

• Councillor Pakoa Fred.

The above Councillors firstly apologised for not submitting their 2004 Annual Returns which was due to the fact that they were not properly informed and advised in good time about it. However, they have now declared their 2004 Annual Returns in the appropriate form which was submitted to the Clerk of Parliament on 12 October 2005.

4.50 Councillor Silas Aru of the Penama Provincial Council responded to the Ombudsman's enquiry by phone on 25 October 2005. He advised that he had not declared his 2004 Annual Returns because he had asked the Assistant Secretary of the Penama Provincial Council to provide him with an annual return declaration form but this form was never given to him. As such, he did not declare his 2004 Annual Returns and was not happy when his name appeared in the Official Gazette about his failure to do so.

4.51 Councillor Kalmasey Kalsey of the Malampa Provincial Council responded to the Ombudsman's letter of enquiry by phone on 25 October 2005. He advised that the main reason why he did not declare his 2004 Annual Returns was because he did not receive the annual return declaration on time from the Clerk of Parliament. He only received the form in May 2005 so he made a decision not to declare his 2004 Annual Returns as it was already 2 months late.

Mr Kalsey then queried as to whether he could still declare his 2004 Annual Returns. He was advised that he could still do so but he will still be included in the Ombudsman's report as a leader who made a late declaration of his 2004 Annual Returns. He then advised that he will be coming to Port Vila on the following week and will hand deliver the declaration himself to the Clerk of Parliament and then call in to the Ombudsman's Office to advise that he has declared his 2004 Annual Returns.

On 1 November 2005, the Ombudsman received a copy of a letter from Mr Kalsey to the Clerk of Parliament. Mr Kalsey stated in this letter, which was dated 28 October 2005, that due to the remoteness of his home island, Akhamb which is off the southern part of Malekula, he did not receive the annual return form from the Clerk until 17 October 2005. So by the time he received the form, he also received the letter of enquiry by the Ombudsman requesting him to provide the reasons why he did not declare his 2004 Annual Returns. Therefore, due to the poor postal system, he did not receive both letters on time. Mr Kalsey then recommended in his letter that the Clerk of Parliament should post such confidential and important documents to the Provincial Headquarter on time so that it can be distributed to the Councillors. Mr Kalsay also attached a copy of his 2004 Annual Return declaration which was made on 17 October 2005.

4.52 On 20 October 2005, the Ombudsman received a response from Ms Myriam Abel, Director General of the Ministry of Health. In her letter, Ms Abel advised that her failure to declare her 2004 Annual Returns was an oversight on her part. However, she has now obtained another form which she will now complete and submit to the Clerk of Parliament on Monday 17 October 2005.

4.53 On 8 November 2005, the Ombudsman received a copy of a letter from Mr Samuel Yaru, Councillor of the Tafea Provincial Council to the Clerk of Parliament. In this letter, Mr Yaru advised the Clerk that he had received the Annual Return form from him but had misplaced it and was not able to inform the Clerk's Office that he had misplaced the form. He has however, been able to obtain another form after receiving the Ombudsman's letter of enquiry and is now submitting his 2004 Annual Returns [a copy of the said declaration was not provided to the Ombudsman's Office].

4.54 On 8 November 2005, the Ombudsman received a copy of a letter from Mr Willie Joel, Councillor of the Tafea Provincial council to the Clerk of Parliament. Mr Joel apologised to the Clerk for not declaring his 2004 Annual Returns but this was because he had misplaced the annual return declaration form. It is not clear to the Ombudsman if Mr Joel did declare his 2004 Annual Returns following this letter by Mr Joel to the Clerk.

4.55 On 9 November 2005, the Ombudsman received a copy of Mr Vake Rakau's 2004 Annual Returns. Mr Rakau is the Principal Immigration Officer [PIO]. Mr Rakau advised that he is currently under suspension therefore he only received the Ombudsman's letter of enquiry from officers of the Immigration Department on 8 November 2005. He further stated that he recalls declaring his 2003 Annual Returns which was personally hand delivered by him to the Clerk of Parliament. For his 2004 Annual Returns, he recalled that he completed the prescribed form and asked his officers to deliver it to the Clerk but it may be that it was not delivered which is why his name appeared in the Official Gazette. He is now willing to declare his 2004 Annual Returns.

4.56 On 11 January 2006, the Ombudsman received a response from Mr Peter Mawa, 2"d Political Advisor in the Ministry of Trade, Commerce, Industry and Tourism. Mr Mawa advised that the reason for not submitting his 2004 Annual Returns on time was due to the following

• His late wife was admitted to the Northern District Hospital (NDH) in February 2005 and he had to leave work to go and be with her. She was discharged from hospital 3 weeks later and he came back to Port Vila to resume official duties. One month later, his wife was re-admitted to the NDH after suffering a minor heart attack. He had to leave again for Santo to be with her. She was discharged from the hospital 2 weeks later. Few weeks later, she was again admitted to the NDH after suffering another minor heart attack and he had to leave for Santo again to be with her. She was discharged from the hospital 3 weeks later.

• In August 2005, he brought his wife to Port Vila where she was hospitalised at the Vila Central Hospital [VCH] for one month.

• On 10 September 2005, he had to take his wife back to Santo as she was now seriously ill. She was admitted at the NDH on 12 September 2005 and passed away on 19 September 2005.

• Mr Mawa advised that he only resumed official duties in the month of November 2005. It was only then that he had the opportunity to declare his 2004 Annual Returns - a copy of which was attached with this letter. Mr Mawa also submitted a copy of his wife's death certificate and copies of letters by him to the Minister requesting for leave to go and be with his wife.

4.57 Mr David William, Councillor of the Malampa Provincial Council responded to the Ombudsman's letter of enquiry by phone on 20 February 2006. He advised that even though the Ombudsman's letter of enquiry was sent last year, he has just received it this year. The reason why he did not declare his 2004 Annual Returns was because he did not receive the annual return declaration form from the Clerk of Parliament.

4.58 The Ombudsman did not receive any response to his letter of enquiry from the following leaders:

• Honourable Ham Lini Vanuaroroa, Prime Minister;

• Honourable Moana Carcasses, MP;

• Honourable Roro Samba, MP;

• Honourable Malon Hospmander, MP;

• Honourable Raphael Worwor, MP;

• Honourable Donna Brawny, MP;

• Honourable Caleb Isaac, MP;

• Honourable Philip Andikar, MP;

• Honourable Bob Loughman, MP;

• Honourable Jack Eric, MP;

• Honourable lavcuth Sandie, MP;

• Honourable Judah Issach, MP;

• Honourable Serge Vohor Rialuth, MP;

• Honourable Rokrok Charlie, MP;

• Honourable Pierre Tore, MP;

• Honourable Etap Louis, MP;

• Honourable Philip Boedoro, MP;

• Honourable Masmas Josie, MP;

• Mr George Bogiri, 1" Political Advisor in the Office of the Prime Minister;

• Mr Thomas Rao, 3rd Political Advisor in the Office of the Prime Minister;

• Mr David Abel, 2"d Political Advisor in the Ministry of Finance;

• Mr Gaston Siaka, 3`Political Advisor in the Ministry of Finance;

• Mr Jean Bai, 1St Political Advisor in the Ministry of Lands;

• Mr Alfred Carlot, 1St Political Advisor in the Ministry of Infrastructure;

• Mr Jacob Thyna, Member of the Public Service Commission;

• Mr Ronald Warsal, Member of the Public Service Commission;

• Mr George Pakoasongi, Secretary, Public Service Commission;

• Mr Lenneth Bule, Member of the Police Service Commission;

• Mr Etienne Kombe, Chairman of the Electoral Commission;

• Mr Martin Tete, Principal Electoral Officer;

• Mr Roy Mickey Joy, Director General of the Ministry of Trade;

• Mr Simeon Malchi Athy, Director General of the Ministry of Finance;

• Mr Vine Allan James Noel, Director of the Department of Postal Services;

• Mrs Olga Tariweu, Office Manager of the Department of Postal Services;

• Mrs Susan Phelps, Chairman of the Department of Postal Services;

• Mr Mike Bakeoliu, Director of the Department of Survey;

• Mr Georges Borugu, Director of the Department of Cooperatives;

• Mr John Colwick, Director of the Department of Finance;

• Mr Jacob Isaiah, Director of the Department of Civil Status;

• Mr Mark Bebe, Member of the National Bank of Vanuatu Board of Directors;

• Mr Kelip Sandy, General Manager of the Vanuatu National Provident Fund;

• Mr Tom Sakias, Member of the Vanuatu National Cultural Council;

• Mrs Jenny Ligo, Member of the Vanuatu National Cultural Council;

• Mr Ron Sumsum, Acting General Manager of Air Vanuatu;

• Mr Leo Tamata, Vice Chairman of the Air Vanuatu and Vanair Board of Directors;

• Mr Peter Salemalo, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr Saby Natonga, Member of the Air Vanuatu and Vanair Board of Directors;

• Pastor Thomas Niditauae, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr Dick Tete, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr Christian Wus, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr Starky Bong, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr Edwin Basil, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr Charles Bice, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr Willie Tor, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr Roger Abiut, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr John Terry, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr Nato Taiwia, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr Andrew Kausiama, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr John Josiah, Member of the Air Vanuatu and Vanair Board of Directors;

• Mr Eddie Silas, Member of the National Tourism Office Board;

• Mr laken Kiero, Member of the National Tourism Office Board;

• Mr David Cross, Member of the National Tourism Office Board;

• Mr William Novuai T. Mete, Member of the National Tourism Office Board;

• Mr Opi Mial, General Manager of the National Housing Corporation;

• Mr Mishu Kalsau, Member of the National Housing Corporation;

• Chief Paul Tahi, Chairman of the Malvatumauri National Council of Chiefs;

• Mr Karl David, Member of the Vanuatu Commodities Marketing Board;

• Mr Edly Tom, Member of the Vanuatu Commodities Marketing Board;

• Mr Peter Lamai, Member of the Vanuatu Commodities Marketing Board;

• Mr Tatu Abel, Member of the Vanuatu Commodities Marketing Board;

• Mr Edmond Hillary Sovan, Secretary General of the Torba Provincial Council;

• Mr Edward Hillary, Member of the Torba Provincial Council;

• Mr Peter Joel Paul, Member of the Sanma Provincial Council;

• Mr Christian Maliu, Member of the Sanma Provincial Council;

• Mr Steven Sau, Member of the Penama Provincial Council;

• Mr Thompson Liu, Member of the Penama Provincial Council;

• Mr Patrick Tugu, Member of the Penama Provincial Council;

• Mr Mathias Vira Tambe, Member of the Penama Provincial Council;

• Mr Killies Garae, Member of the Penama Provincial Council;

• Mr Ravun Robert, Member of the Malampa Provincial Council;

• Mr Samy Bernadin, Member of the Malampa Provincial Council;

• Mr Marc Urleless, Member of the Malampa Provincial Council;

• Mr Tantang Douglas, Member of the Malampa Provincial Council;

• Mr Jeffrey Glen, Member of the Malampa Provincial Council;

• Mr Aison A. Robert, Member of the Malampa Provincial Council;

• Mr Taous Lazare, Member of the Tafea Provincial Council;

• Mr Barry Sam Ilaisa, Clerk of the Luganville Municipal Council;

• Mr Willie Toa Bani, Member of the Luganville Municipal Council;

• Mr Jose lapse, Member of the Luganville Municipal Council and

• Mr Pierre Chanel Buleban, Member of the Luganville Municipal Council.

5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM

5.1 A Working Paper on this matter was issued on 11 September 2006 in compliance with Article 62[4] of the Constitution which states that the Ombudsman must give those complained of, an opportunity to respond to the findings made against them.

Only 27 leaders responded to the Working Paper.

The following 10 leaders could not be located due to the change of addresses: Messrs David Abel, Gaston Siaka, Jean Bai, Dick Tete, Christian Wus,
Roger Abiut, John Terry, Eddie Silas, Noel Ben and William Timothy Merick.

5.2 On 13 September 2006, the Ombudsman received a response from Councillor Johnson Tomol of Shefa Province. He stated that he was elected as a Councillor in November 2004. He recalled that in 2005, he submitted an annual return form to the Clerk of Parliament before 14 March 2005.

5.3 On 14 September 2006, the Ombudsman received a response from one of his staff that Mr Nato Taiwia, member of Air Vanuatu Board of Directors refused to accept the Working Paper as he is no longer a Board member.

5.4 On 14 September 2006, the Ombudsman received a response from Mr Andrew Kausiama, member of Air Vanuatu Board of Directors. He stated that when he was first appointed to the Board, he resigned. He was then reappointed by Minister Korman but he had an argument with the Chairman of the Board and he was subsequently dismissed by Minister Natapei who replaced Minister Korman.

As he only served in the Board for short periods of time, he did not declare his 2004 Annual Return even though he had received the form from the Clerk of Parliament.

5.5 On 15 September 2006, the Ombudsman received a response from Mrs Jenny Ligo, Chief Executive Officer, VNCW. She submitted a copy of her letter to the Clerk of Parliament for submission of her Annual Returns for 2004, 2005 and 2006 dated Thursday, 14 September 2006. She apologized as she did not know whether she is also under the Leadership Code.

5.6 On 15 September 2006, the Ombudsman received a response from Mr Brasio Kaltoua, Councillor of Shefa Province. He filled out an annual return form and left it at the receptionist desk at Shefa Province with the expectation that they will submit it to the Clerk of Parliament on his behalf. Unfortunately, it did not happen as anticipated.

5.7 On 18 September 2006, the Ombudsman received a response from Councillor Nowo Vakumali of Shefa Province who stated that he received the annual return form _late from the Clerk of Parliament, therefore, did not declare his 2004 Annual Returns.

5.8 On 20 September 2006, the Ombudsman received a response from President John Makal and Councillors Sope Malas and Donald Samuel of Shefa Provincial Headquarters who stated that they had declared their 2004 Annual Returns following the Ombudsman's enquiry into the issue.

The Ombudsman advised them that in the Working Paper, they have been listed as Councillors who declared their 2004 Annual Returns following the Ombudsman's enquiry. Thus, we will leave this as it is as well as Finding 1 of the Working Paper when we issue the public report.

They thanked the Ombudsman for this clarification and stated that they were confused when they received the Working paper. They thought they had to make another declaration.

5.9 On 21 September 2006, the Ombudsman received a response from Mr Sakias Tom, member of Vanuatu National Cultural Council. He stated that subsequent to negligence of the Leadership Code Act by the leaders, he has some comments to forward to this Office:

• the report was well written;

• if the Office of the Ombudsman could analyse and confirm whether the Clerk of Parliament did send any warnings to leaders concern;

• if the Office of the Ombudsman could check with those leaders; and

• if the Office of the Ombudsman could make copies of the Act and send them to leaders concern.

5.10 On 21 September 2006, the Ombudsman received a response from MP Josie Masmas who stated that the reason why he did not declare his 2004 Annual Returns was that he had misplaced the completed form amongst his papers and had not delivered it to the Clerk of Parliament. He only realised this after the Ombudsman's enquiry. If it is still necessary to declare his 2004 Annual Return, then he will do so when he returns to Port Vila for the next parliamentary seating.

5.11 On 26 September 2006, the Ombudsman received a response from Mr George Pakoasongi, Secretary, Public Service Commission who stated that he has always diligently submitted his annual returns to the Clerk of Parliament since 1999 and was shocked when he noticed that his name was also included amongst those who had failed to do so for 2004. He apologized that it was not intentional but a complete oversight on his part as he thought he had done so as usual.

He wondered whether the Clerk of Parliament has already distributed the forms for the 2005 because he has not yet received his. He asked whether Parliament has a system in place to follow up on those who have not submitted their annual returns within the required time frame. This would assist some of them who really want to comply with their legal obligations.

5.12 On 27 September 2006, the Ombudsman received a response from Mrs Myriam Abel, Director General, Ministry of Health. She advised that she has no further comments to add on.

5.13 On 6 October 2006, the Ombudsman received a response from Councillor Joachin Kilfan who stated that he had not received his annual return form which led to non submission of his 2004 Annual Return.

5.14 On 9 October 2006, the Ombudsman received a response from Mr David Cross, stating that he ceased to be a member of the Vanuatu Tourism Office in August 2005 and could see no need for him to lodge a return.

5.15 On 9 October 2006, the Ombudsman received a response from Councillor Bernardin Sami who stated that he received his annual return form late which led to non submission of his 2004 Annual Return.

5.16 On 11 October 2006, the Ombudsman received a response from Councillor Tantang Douglas who stated that he submitted his 2004 Annual Return to the Clerk of Parliament. He was slightly worried to have discovered in the Working Paper that he had not declared his 2004 Annual Return and questioned what the Clerk of Parliament has done to his form.

5.17 On 12 October 2006, the Ombudsman received a response from Councillor Jeffrey Glen. He stated that at their Malampa Provincial Council meeting at the Provincial Headquarter, the Councillors faxed their 2004 Annual Returns to the Clerk of Parliament and he was included. He queried why his name appeared in the Official Gazette even though he did declare his 2004 Annual Returns by fax.

5.18 On 16 October 2006, the Ombudsman received a response from Councillor Muluane Urbain. He stated that they live in remote areas. The annual return forms usually arrived late which resulted in non declaration of the 2004 Annual Return.

5.19 On 16 October 2006, the Ombudsman received a response from Councillor Aison A Robert who stated that after the Malampa Provincial election in 2004, the annual return forms were sent to the Malampa Provincial Headquarter. From there, the form was sent to Paama. Since he lives in a remote area, he received the form after the due date. That was the reason he did not declare his 2004 Annual Return to the Clerk of Parliament.

5.20 On 25 October 2006, the Ombudsman received responses from Councillors Steven Sau and Mathias Vira Tambe that on or before 6 November 2004, they were not yet members of the Penama Provincial Council, therefore, they believe that the 2004 Annual Return is not applicable to them.

5.21 On 26 October 2006, Mr Edmond H Sovan, Secretary General, Torba Provincial Council advised the Office of the Ombudsman by phone that since he received the Working Paper late, he will be late in responding.

5.22 On 1 November 2006, the Ombudsman received responses from Councillors Patrick Tugu, Killies Garae and Silas Aru that on or before 6 November 2004, they were not yet members of the Penama Provincial Council, therefore, they believe that the 2004 Annual Return is not applicable to them.

5.23 On 7 November 2006, the Ombudsman received a response from Councillor Edmond H Sovan stating that his situation is different from his colleagues. He lives on the last remote island in the Torba Province. Sometimes it takes 3 months to receive his mail from Sola.

5.24 On 9 November 2006, Mr Peter Mawa, 2nd Political Advisor in the Ministry of Trade, Commerce, Industry and Tourism contacted the Office by phone in regards to the Ombudsman's Working Paper.

Referring to section 4.56 of the report, Mr Mawa was advised that although he declared his 2004 Annual Return on September 2005, the legal requirement of time-frame was overdue

5.25 On 12 December 2006, the Ombudsman received responses from Councillors Jefery Moli and Bebe Telkon that on or before 6 November 2004, they were not yet members of the Penama Provincial Council, therefore, they believe that the 2004 Annual Return is not applicable to them.

6. FINDINGS

6.1 Finding 1: BREACH OF SECTION 33 OF THE LEADERSHIP CODE ACT BY CERTAIN LEADERS AS LISTED IN THE EXTRAORDINARY GAZETTE NO. 3 OF 11 JULY 2005.

After due enquiry, the Ombudsman found that having failed to declare their 2004 Annual Returns as required by section 31 of the LCA [refer to Appendix `A']; those leaders failed to declare their 2004 Annual Returns as published in the Extraordinary Gazette No. 3 which was issued on 11 July 2005 have breached the LCA.

However, there were some leaders who took the liberty to declare their 2004 Annual Returns despite the fact that the declaration was made after the requirement date of 14 March 2005. These leaders are:

• Mr Ture Kailo, Director of Youth and Sports,

• Mr Manasseh Tary, Director General of the Ministry of Infrastructure,

• Honourable Joshua. T. Kalsakau, Member of Parliament,

• Honourable Barak T. Sope Maautamate, Member of Parliament,

• Mrs Votausi L. Mackenzie-Reur, Director of Postal Services,

• Mr Stephen Joel, Public Solicitor (former),

• Councillor James Kalo of the Shefa Provincial Council,

• Mr Gilles Bourdet, Member of VTO Board,

• Pastor Youen Atnelo, Member of the Electoral Commission,

• Honourable Steven Kalsakau, Member of Parliament,

• Mr Gary Blake, Member of the NBV Board of Directors,

• Mr Maki Simelum, Chief Executive Officer of the AMU,

• Councillor Muluane Urbain, Vice President of the Malampa Provincial Council,

• Councillor George Turiak of the Tafea Provincial Council,

• Councillor Joachin Kilfan of the Malampa Provincial Council,

• Councillor Andrew Naling of the Tafea Provincial Council,

• Mr Bill Bani Tamwata, Member of the Vanuatu Financial Services Commission,

• Honourable David Tosul, Member of Parliament,

• Councillor Thompson Taura Willie of the Shefa Provincial Council,

• Councillor Gillion William of the Shefa Provincial Council,

• Councillor Sope Malas of the Shefa Provincial Council,

• Councillor Nowo Vakumali of the Shefa Provincial Council,

• Councillor Morrison Roy of the Shefa Provincial Council,

• Councillor Donald Samuel of the Shefa Provincial Council,

• Councillor Brasio Kaltoua of the Shefa Provincial Council,

• Councillor Johnson Tomol of the Shefa Provincial Council,

• Councillor Pakoa Fred of the Shefa Provincial Council,

• Councillor Kalmasey Kalsey of the Malampa Provincial Council,

• Ms Myriam Abel, Director General of the Ministry of Health,

• Councillor Samuel Yaru of the Tafea Provincial Council,

• Mr Vake Rakau, Principal Immigration Officer and

• Mr Peter Mawa, 2nd Political Advisor in the Ministry of Trade, Commerce, Industry and Tourism.

6.2 Finding 2: PERSONS LISTED IN THE EXTRAORDINARY GAZETTE NO. 3 WHO ARE NOT LEADERS AS PER SECTION 5 OF THE LEADERSHIP CODE ACT

After carrying out this enquiry, the Ombudsman found that there were certain persons whose names appeared in the said Official Gazette as leaders who failed to declare their 2004 Annual Returns. However, these persons are; in the opinion of the Ombudsman, not leaders as identified by section 5 of the Leadership Code Act or were not required to submit their 2004 Annual Returns. As such, even though their names appeared in the above mentioned Official Gazette, they are not included in this enquiry. The names, positions and reasons for their omission from this investigation are as follows:

• Mr Efred Alick, 2nd Political Advisor in the Ministry of Cooperatives and Ni-Vanuatu Business was not required to declare his 2004 Annual Returns as he only took up this position of leadership on 3 January 2005.

• Mr Alick J. Kokona, Secretary of the Tenders Board. Section 5 [t] of the LCA only requires the Chairman of the Tenders Board to submit his or her annual return.

• Mr Kalpeau Vatoko, Member of the Tenders Board. Section 5 [t] of the LCA only requires the Chairman of the Tenders Board to submit his or her annual return.

• Mr Thomas Felix, Manager Executive Services of the Public Service Commission. He is not a member of the Public Service Commission or a member of the Disciplinary Board. Members of these Boards are appointed by instrument whilst Mr Felix is appointed by the Commission and reports to the Commission.

• Mr Ben Wotu Leeji, Director of Customs and Inland Revenue. Mr Leeji did not occupy this position of leadership in 2004 therefore he was not required to submit his 2004 Annual Returns.

• Mr Daniel Lamoureux, Principal [former] of INTV. When the Education Act was enacted in 2001, Mr Lamoureux was no longer a member of the Education Selection Board as this Board was replaced by two other Boards which are the National Education Commission and the National

Advisory Council. He is only a member of the VIT Council which is not identified as a position of leadership as per section 5 of the LCA. As such, he is not required to declare his 2004 Annual Returns.

• All members of the Chamber of Commerce are not leaders as per section 5 of the LCA as they are not appointed by an instrument from the Minister responsible for the Chamber of Commerce and they do not receive any remuneration from the Government. They are voluntary members of the Chamber who are nominated by the president of the Local Chamber. Thus, the following persons were not required to submit their 2004 Annual Returns:

[i] Mr Franck Mackie

[ii] Mr Noel Ben

[iii] Mr Yoan Tabisal

[iv] Mr Jean Paul Virelala

[v] Mr Jimmy Masmeadon

[vi] Mr Marakon Alifee

[vii] Mr Arvie Mark Kaltavara

[viii] Mr William Timothy Merick

• Mr Brian Death was a member of the National Tourism Office Board however, as he did not serve on this Board for the full year of 2004, he was not required to declare his 2004 Annual Return.

• Mr John Kalotap Manaroto, Vice Chairman of the Police Service Commission only held this position of leadership from 27 October 2004 to 6 December 2004. As such, he was not required to submit his 2004 Annual Return.

6.3 Finding 3: LEADERS WHO WERE LISTED IN THE EXTRAORDINARY GAZETTE NO. 3 OF 11 JULY 2005 [WITH THE EXCEPTION OF PERSONS LISTED IN FINDING 2 ABOVE] HAVE BREACHED THE LEADERSHIP CODE ACT

The Ombudsman found that the kind of excuses or comments received from leaders during the Ombudsman's enquiry cannot be used as a defence in not breaching the Act. Their reasons are unjustifiable.

As leaders, they are expected or must ensure that they are familiar with and understand the laws that affect the area or role of their leadership.

It is the duty of the leaders to get the forms from the Clerk of Parliament, complete and return them to the Clerk. There is no excuse of ignorance of law.

Due to the above, leaders mentioned have breached the Leadership Code Act.

6.4 Finding 4: SECTION 31 TO 33 IN THE LEADERSHIP CODE ACT SERVE NO PURPOSE AT ALL AS IT DOES NOT PROVIDE ANY FORM OF CHECKING BY THE CLERK OF PARLIAMENT TO SATISFY HIMSELF OF THE ACCURACY AND RELIABILITY ON THE INFORMATION PROVIDED BY A LEADER IN THE ANNUAL RETURN FORM.

There is no guaranty and system in place to properly carry out proper checks on the information supplied to the Clerk of Parliament by individual leaders. There is no certainty that the information provided to the Clerk is accurate and can be relied upon as true record of the leader's assets and liabilities. The Clerk of Parliament only receives the annual return forms but conducts no independent test checks to satisfy himself that the information is accurate and reliable.

6.5 Finding 5: THE OMBUDSMAN DOES NOT HAVE THE AUTHORITY, UNDER THE ACT, TO SCRUTINISE ALL ANNUAL RETURN FORMS TO SATISFY HIMSELF THAT THE INFORMATION SUPPLIED BY A LEADER AND KEPT BY THE CLERK ON EACH LEADER'S ASSETS AND LIABILITIES ARE RELIABLE AND ACCURATE

The Leadership Code Act does not provide any authority to the Ombudsman to scrutinise each leader's Annual Return Form. When the forms are submitted there is no independent checks to ensure that the leader is declaring all his/her assets or that the declaration is accurate and is reliable. Unless there is scrutiny one cannot be certain that leaders are declaring all their assets and liabilities and are providing accurate records.

7. RECOMMENDATIONS

The Ombudsman makes these recommendations following the above findings:

7.1 Recommendation 1:

The Prime Minister, all Ministers, the Public Service Commission and all the agencies responsible for appointing persons to leadership positions must include in the letter of appointment of the leader an Annual Return form and explain the Annual Return requirements expected from the leader while in leadership position.

7.2 Recommendation 2:

Government authorities legally empowered to appoint and terminate persons from leadership positions must include, as part of their administrative role, the duty to inform the Clerk of Parliament in writing immediately after every appointment or termination of any leader so the Clerk of Parliament can keep an update of who the leaders are.

7.3 Recommendation 3:

That the Leadership Code Act is amended and to provide for Secretary Generals of the Provincial Governments, Chairman of Government Statutory Bodies to be responsible for the distribution of Annual Return forms. This is in order that they are distributed to elected councillors and board members when they have their meetings

Leaders need to know that the Clerk of Parliament or any other government agency is not bound by law to send out the annual Return forms to leaders. It is their duty as a leader to obtain, complete and submit their Annual Return forms to the Clerk of Parliament within 2 months of becoming a leader or by 1 March each year.

7.4 Recommendation 4:

The Government through Parliament, Public Service Human Resources Development Unit of the Public Service Commission, Office of the Ombudsman, Police Training College, Department of Provincial Affairs within the Ministry of Internal Affairs, Department of Education set up a committee to formulate an induction programme for ongoing leaders and persons newly appointed to leadership positions to assist them in understanding their leadership position and responsibilities under the Constitution and Leadership Code Act.

7.5 Recommendation 5:

The Annual Return forms be simplified so that it is more understandable by every leader. The current Annual Return Form is very complicated and is not reader friendly.

7.6 Recommendation 6:

The Leadership Code Act be amended to allow all annual returns be submitted to the Ombudsman for scrutiny. This would be more convenient since there is a Leadership Code section that handles leadership complaints.

7.7 Recommendation 7:

That Section 31 to 33 of the Leadership Code be amended to give the Ombudsman the authority to scrutinise all annual returns that are submitted each year. Unless there is proper scrutiny of the forms the citizens of the Republic of Vanuatu cannot guarantee that the leaders that they have elected are giving true and accurate information of what he/she owns.

Dated this 15^th day of December 2006.

Peter K. TAUR~AKOTO
OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

A Relevant laws

B Extraordinary Gazette No. 3 of 11 July 2005

Appendix A

CONSTITUTION OF THE REPUBLIC OF VANUATU

DEFINITION OF A LEADER

67 For the purposes of this Chapter, a leader means the President of the Republic, the Prime Minister and other Ministers, members of Parliament, and such public servants, officers of Government agencies and other officers as may be prescribed by law.

LEADERSHIP CODE ACT 1998

LEADERS

5. In addition to the leaders referred to in Article 67 of the Constitution, the following are declared to be leaders:

(a) members of the National Council of Chiefs;

(b) elected and nominated members of local government councils; (c) elected and nominated members of municipal councils;

(d) political advisors to a Minister;

(e) directors-general of ministries and directors of departments;

(f) members and the chief executive officers (however described) of the boards and statutory authorities;

(g) chief executive officers or secretaries-general of local governments; (h) the town clerks (or their equivalent in name) of municipal councils; (i) persons who are:

(i) directors of companies or other bodies corporate wholly owned by the Government; and

(ii) appointed as directors by the Government; (t) the Attorney General;

(k) the Commissioner and Deputy Commissioner of Police; (I) the Solicitor-General;

(m) the Public Prosecutor; (n) the Public Solicitor; (o) the Ombudsman;.

(p) the Clerk of the Parliament; (q) the Principal Electoral Officer; (r) the Auditor-General;

(s) the Chairperson of the Expenditure Review Committee;

(t) the Chairperson when acting in that capacity of the Tenders Board; (u) members of the Public Service Commission;

(v) members of the Teaching Service Commission;

(w) members of the Police Service Commission; (x) members of the Electoral Commission;

(y) the Commander of the Vanuatu Mobile Forces.

PART 4 - ANNUAL RETURNS

ANNUAL RETURNS

31. (1) Every leader must complete an annual return for the preceding year setting out details of the leader's assets and liabilities in accordance with the form in the Schedule.

(2) The annual return must be given to the clerk of the Parliament:

(a) within 2 months of becoming a leader; and

(b) by 1 March in each year.

(3) The annual return must set out details, listed in subsection (4), of the assets and liabilities of:

(a) the leader; and

(b) the leader's spouse and children where feasible;

(c) any trust of which the leader or the leader's spouse or children are a beneficiary where feasible.

(2) The details to be set out in the annual return are:

(a) all land and other property (except one family home);

(b) all vehicles (except one family vehicle);

(c) all shares in public or private companies;

(d) all income;

(e) all liabilities;

(f) directorships in corporations;

(g) all directorships or other office held in unincorporated bodies;

(h) any assets acquired or disposed of during the period covered by the return;

(i) any liabilities acquired or discharged during the period covered by the return.

(2) The details must include assets within and outside Vanuatu.

(3) The leader is not required to include:

(a) any liabilities in respect of the family home; or

(b) the personal effects of the leader and his or her spouse and children.

FAILURE TO FILE ANNUAL RETURN

33. A leader who:

(a) does not file an annual return as required by section 31, and after having been warned by the Clerk in writing of his failure to do so, fails to file the return within a further 14 days; or

(b) files a return knowing that it is false in a material particular; is guilty of a breach of this Code.

PART 5 - INVESTIGATION AND PROSECUTION OF LEADERS

ROLE OF OMBUDSMAN

34. (1) The Ombudsman must investigate and report on the conduct of a leader (other than the President):

(a) if the Ombudsman receives a complaint from a person that a leader has breached this Code; or

(b) if the Ombudsman has formed the view on reasonable grounds that a leader may have breached this Code.

(2) The Ombudsman must give a copy of the report to the Public Prosecutor and where, in the opinion of the Ombudsman, the complaint involves criminal misconduct, to the Commissioner of Police within 14 days after forwarding his or her findings to the Prime Minister under Article 63(2) of the Constitution.

(3) Where an Act provides for the functions, duties, and powers of the Ombudsman, the provisions of that Act will apply when the Ombudsman is carrying out an investigation under this Act.

(4) Notwithstanding subsection (3), for the purpose of fulfilling any function or duty lawfully conferred or imposed on the Ombudsman under this Act, the Ombudsman

(a) shall have full access at all convenient times to Government contracts, documents, books, accounts and any other material that relates to and is relevant to the investigation; and

(b) may, by notice in writing signed by the Ombudsman require any person having possession or control of any Government contract, documents, books, accounts or any other material that relates to and is relevant to the investigation to deliver such document or documents to the Ombudsman at such time and place as is specified in the notice; and

(c) may cause extracts to be taken from any Government contract, documents, books, accounts or any other material that relates to and is relevant to the inquiry without paying any fee therefor.

(5) Where a person fails to comply with a notice or any other requirement under subsection (4) the Ombudsman may apply to the Supreme Court for an order requiring that person to do so.

(6) Where the complaint is against the Ombudsman the investigation will be carried out by the Attorney-General in accordance with the procedure set out in this part as if the Attorney-General were vested with all the functions, duties discretions and powers of the Ombudsman.

LEADERSHIP CODE (AMENDMENT) ACT 1999

ANNUAL RETURNS CONFIDENTIAL EXCEPT FOR INVESTIGATIONS AND PROSECUTIONS

32. [1] Subject to subsection (2), the Clerk must keep confidential all annual returns given to the Cleric by leaders.

[2] The Clerk must not make a part of an annual return, or the whole of an annual return, available to another person unless the Clerk is satisfied that the part or annual return is necessary for:

[a] an investigation under Part 5 of this Act, or an investigation authorised by or under any other Act or law; or

(b) a prosecution under Part 5 of this Act, or a prosecution authorised by or under any other Act or law.

The Clerk must publish in the Gazette on or before 14 March in each year a list of the leaders who have given or failed to give the Clerk an annual return. The list must set out the leader's name and the position the leader holds.

[4] This section applies to an annual return required to be given to the Clerk on or after the day on which this section commences.".

[PacLII's editorial note: please refer to the downloadable PDF at the top of this page for the full text of the Appendices]