REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

FINAL REPORT

ON THE

IMPROPER RETIREMENT OF A SENIOR POLICE OFFICER.

20 August 1998

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PREAMBLE

'Have no fellowship with the unfruitful works of darkness, but rather reprove them, for is a shame even to speak of those things which are done by them in secret, but all things that are reproved are made manifest by the light... '

Ephesians ch. 5 v. 11a13

SUMMARY

This report focuses on the improper retirement of one senior police officer, Mr Louis Edwin Sahe. In doing so, it exposes the systematic erosion of the Police Force and improper behaviour of those in authority.

Mr Luc Siba was appointed Police Commissioner in 1994 regardless of his substantial criminal record. Mr Waimini Perei, who was appointed Chairman of the Police Service Commission also in 1994, had previously been dismissed from the Police Force for misconduct.

Upon his appointment, Mr Luc Siba, with the help of Mr Perei, instigated the retirement of 22 Police Officers, including many senior officers. The majority of these retirements took place on one day.

The Police Commissioner, Mr Luc Siba, decided to retire Mr Sahe on his own initiative because he thought that this officer was uncooperative. Mr Siba was aware that if he was dissatisfied with Mr Sahe’s conduct, he should have called a disciplinary hearing to give his officer some right to answer the allegations. But Mr Siba wanted to ensure that Mr Sahe was removed from the Force and he therefore preferred to handle this case in an inappropriate and illegal manner.

The Police Service Commission, who is responsible for assessing and carrying out retirements failed to perform their duties and allowed themselves to be directed by Mr Siba and Mr Perei. Even though they knew that proper procedure were being ignored, they did not challenge those responsible nor did anything else to rectify the situation.

The situation became even more confused when it was discovered that there was no money to pay for the retirement allowances, and the Minister for Home Affairs tried to patch the situation by illegally trying to reinstate senior police officers.

Mr Sahe’s retirement was just one incident in a time of irresponsible management where law and procedure were ignored. This has had far reaching effects on the Police Force, and these effects are evident to this day as the Police Force appears to continue to function inefficiently with a lack of qualified and experienced officers.

TABLE OF CONTENTS

1 JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS AND REGULATIONS
4. OUTLINE OF EVENTS
BACKGROUND
THE EVENTS CONCERNING MR SAHE
5. RESPONSES TO THE PRELIMINARY REPORT
6. FINDINGS
Finding 1: The conduct of the Police Commissioner, Mr Luc Siba, was contrary to law in that he did not follow disciplinary procedures, the Police law and the Leadership Code.
Finding 2: The conduct of the Police Commissioner, Mr Luc Siba, was contrary to law in that he withheld Mr Sahe's retirement.
Finding 3: The Police Commissioner, Mr Luc Siba, breached the Leadership code.
Finding 4: The conduct the Police Service Commission was based on irrelevant grounds and on irrelevant considerations.
Finding 5: The administrative practice of the Police Service Commission was defective.
Finding 6: Section 28 of the Police Act (CAP 105) is defective in that it is unclear about reasons for compulsory retirement and does not allow for appeal against compulsory retirement.
Finding 7: The conduct of Mr Charlie Nako was contrary to law in that he reinstated Mr Sahe.
Finding 8: The Minister responsible at the time, Mr Charlie Nako breached the leadership code.
Finding 9: The conduct of Mr Perei and Mr Siba was contrary to law in that they breached the Finance Regulations.
Finding 10: Mr Amos Andeng breached the leadership code.
7. RECOMMENDATIONS
Recommendation 1: That the powers and duties of the Police Service Commission be clearly defined and documented.
Recommendation 2: That guidelines for content and procedure within Police Service Commission meetings be set and documented.
Recommendation 3: That all Police Service Commission members be classed as leaders under the Constitution.
Recommendation 4: That Section 28 the Police Act (CAP 105) be reassessed and clarified.
Recommendation 5: That Mr Siba, Mr Perei, Mr Mansale, Mrs Crowby and Mr Andeng not be appointed to positions that demand integrity and effective administrative skills.
8. CONCLUSION
9. INDEX OF APPENDICES

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1 JURISDICTION

1.1	Under Article 62 of Constitution and the Ombudsman Act no 14 of 1995, I have jurisdiction to enquire into the conduct of public servants, government and related bodies, which includes the conduct of The Police Service Commission. I also have jurisdiction to enquire into defects in law or administrative practice, possible discriminatory practice and possible breaches of the Leadership Code. Mr Luc Siba as Police Commissioner, Mr Charlie Nako as Minister for Home Affairs and Mr Amos Andeng as a member of the Public Service Commission were leaders under the Constitution and/or the Ombudsman Act at the time of these events

1.2	The Ombudsman Act continues to apply to this case regardless of its possible repeal, since the investigation began while the Act was in effect. The Interpretation Act [CAP 312] states that any ongoing investigation may be continued as if the repealing Act had not been passed (s.11(1)(e)).'

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 compulsory retirement of Mr Sahe and to determine whether

•	the conduct of Mr Luc Siba in the retirement procedure was proper;

•	the conduct of Mr Charlie Nako was proper in the withdrawal of the retirement notice;

•	the conduct of Mr Luc Siba and Mr Waimini Perei was proper in directing that Mr Sahe's termination payment be made;

•	the practices of the Police Service Commission (PSC) were defective;

•	Section 28(1) of the Police Act (CAP 105) is defective

•	Mr Siba, Mr Nako and Mr Andeng breached the Leadership Code.

2.3	This Office acquires relevant information and documentation by informal request, summons, correspondence, personal interviews and research.

3. RELEVANT LAWS AND REGULATIONS

3.1	CONSTITUTION OF THE REPUBLIC OF VANUATU

CONDUCT OF LEADERS

66.(1)	Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to-

(a)	place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised;

(b)	demean his office or position;

(c)	allow his integrity to be called into question; or

(d)	endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu.

(2)	In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subarticle (1).

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.

3.2 	THE POLICE ACT (CAP 105)

GENERAL POWERS OF COMMISSIONER

6. (1)	The Commissioner shall have the command, superintendence and direction of the Force and, subject to the provisions of this Act and to the general directions of the Minister may -

(a)	make such appointments, promotions and reductions in rank in respect of all subordinate officers as he may consider fit; and

(b)	make Force Orders for the general government of members in relation to their enlistment, discharge, training; arms; clothing; equipment and other appointments and particular services as well as their distribution and inspection and other such orders as he may deem expedient for preventing neglect and for promoting the efficiency and discipline of all members.

APPOINTMENTS

10 (1) ...

(2)	Other senior officers shall be appointed by the Commission, acting on the recommendation of the Commissioner.

COMPULSORY RETIREMENT OF POLICE OFFICERS

28 (1)	Notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force, for the purposes of ensuring the renewal of holders of public offices within the Force, the Commissioner in the case of a subordinate officer or the Police Service Commission acting on the recommendation of the Commissioner, in the case of a senior officer, may compulsorily retire any member from the Force.

DISCIPLINARY PROCEEDINGS AGAINST SENIOR OFFICERS

66.	A senior officer who commits an offence against discipline prescribed by this Act or by any regulations made hereunder shall be dealt with and punished in accordance with sections 67 and 71.

3.3	THE FINANCE REGULATIONS

REGULATION 176

5.1	In certifying and signing a payment voucher the Accounting Officer or authorised signatory is responsible for ensuring that:

...

(c) uncommitted funds for the expenditure are available from the Expenditure Head, Sub-Head and Item stated on the voucher.

4. OUTLINE OF EVENTS

BACKGROUND

4.1	Mr Waimini Perei was appointed Chairman of the PSC by the Prime Minister Mr Maxime Carlot Korman on 19 August 1994. Previously, he had been a police officer and had been dismissed for misconduct on 1 February 1989. Some years later he was appointed Principal Immigration Officer. While he sat as Chairman of the PSC, he also was the Director of the National Tourism Office. Other members of the PSC were Mrs Maria Crowby, Mr Pakoa Lao Mansale and Mr Amos Andeng.

4.2	On 30 August 1994, Mr Siba was appointed Police Commissioner by the President. Mr Siba’s criminal record shows that he had been previously convicted of several offences including dangerous driving, theft, misappropriation and theft, careless driving, drunk and driving and false account.

4.3	Mr Siba, as Police Commissioner, initiated a series of systematic retirements of police officers including several senior officers. The current Chairman of the Police Service Commission has confirmed that a total of twenty-two police officers were retired between 31 December 1994 and 13 April 1996, fifteen of whom were retired on 30th October 1995. (see Appendix A for a partial list) This not only drained the Police Force of experienced and qualified staff, it also caused a severe financial strain on the government, so much so that Mr Siba tried to withdraw notices of compulsory retirement when it was realised that there was no money to pay retirement allowances.

4.4	It is the Police Service Commission that approves retirements. While there are no recorded procedures for the process of retiring an officer by the PSC, the procedure used before Mr Siba’s appointment was not utilised either by Mr Siba or the PSC. To retire an officer, the previous practice was that the Police Commissioner put his written recommendation to the PSC, prepared an agenda and delivered the agenda and a report to the members of the PSC before the meeting so that members could become familiar with the matter before the hearing. 

4.5	Mr Perei has confirmed that these twenty two retirements were presented orally to the PSC by Mr Siba who attended PSC meetings. This was confirmed by all members of the PSC who stated that everything was done orally between the Police Commissioner and the Chairman of the PSC.

THE EVENTS CONCERNING MR SAHE

4.6	On January 1 1974, Mr Louis Edwin Sahe was recruited into the British New Hebrides Police Force.

4.7	Mr Sahe was promoted to several positions which included Deputy Commissioner (Operations) by the first of April 1993.

4.8	On the first of February 1993, Mr Sahe was promoted to Deputy Commissioner for Northern Police Headquarters in Luganville.

4.9	On 1 January 1995, Mr Siba, the Police Commissioner withdrew Mr Sahe from the position of Officer Commanding Malampa, Penama, Sanma and Torba Police Districts but retained him as Deputy Police Commissioner. Mr Sahe was not officially informed of the reason for this, however while under oath, Mr Siba informed the Ombudsman that he had done this as Mr Sahe was uncooperative.

4.10	While there is no record of complaints against Mr Sahe at the time of these events, Mr Siba informed the Office of the Ombudsman in 1996 that Mr Sahe had intended to go overseas without Mr Siba's knowledge and this was the reason that he was retired. He stated that he was aware that a disciplinary hearing before the PSC should have been arranged, however he wanted to ensure that Mr Sahe was removed from the Police Force.

4.11	On 24 October 1995, members of the PSC had a meeting in which Mrs Crowby, Mr Andeng, Mr Mansale and Mr Perei considered the early retirement of Messrs Kanas, Tariarou and Sahe. These were approved.

4.12	On the same day, a notice from Mr Perei, Chairman of the PSC, was issued to Mr Sahe informing him that he would be early compulsorily retired from the Vanuatu Police Force on 24 January 1996 under s. 28(1) of CAP 105 The Police Act. This section refers to retirement '... for the purposes of ensuring the renewal of holders of public offices within the Force.' (See Appendix B) However, the position Mr Sahe held was left unfilled during the term of Mr Siba’s appointment as Commissioner of Police, and Mr Siba admitted to the Ombudsman under oath that he did not have any person in mind to take Mr Sahe’s place.

4.13	On 23 January 1996, Mr Siba withheld Mr Sahe’s compulsory retirement because of 'unforeseen circumstances'. (See Appendix C) These circumstances were lack of funds to pay severance and entitlements

4.14	By letter dated 26 February 1996, the Minister of Home Affairs, Hon. MP Charlie Nako informed Mr Sahe that he had been reinstated to the same rank as when he was retired. His posting would be at the discretion of the Police Commissioner. (See Appendix D).

4.15	On 8 March 1996, Mr Perei was dismissed as a member of the PSC.

4.16	On 13 April 1996, MP Nako wrote to Mr Sahe saying that following the Attorney General’s advice and because Mr Sahe accepted his severance pay from the Vanuatu Government, as from 13 April 1996 he was no longer a police officer. He also stated that this letter cancelled his letter of 26 February 1996 which re-instated Mr Sahe and should Mr Sahe want to rejoin the Police Force, he would do so by applying through the normal procedures. 

4.17	On 21 March 1996, the Attorney General, Mr Saksak advised Mr Sahe that the termination of his employment was effective as Mr Nako has no power to appoint senior officers to the force and therefore could not reinstate him. (See Appendix E)

4.18	On 26 April 1996, Mr Sahe was ordered to stop working as Deputy Commissioner responsible for Northern Region.

4.19	On 14 February 1997, the PSC approved the resignation of Mr Siba. 

5. RESPONSES TO THE PRELIMINARY REPORT

5.1	The preliminary report in this matter was issued on 27 February 1998 in accordance with Article 62(4) of the Constitution and Section 16(4) of the Ombudsman Act, which requires that the person or body complained of be given an opportunity to reply to the complaints made against them.

5.2	One response was received from Mr Mansale who did not dispute the findings.

5.3	No responses were received from either Mrs Crowby, Mr Nako, Mr Siba, Mr Perei or Mr Andeng.

6.	FINDINGS

Finding 1: The conduct of the Police Commissioner, Mr Luc Siba, was contrary to law in that he did not follow disciplinary procedures, the Police law and the Leadership Code.

6.1	Mr Siba stated to this Office in his sworn statement that he retired Mr Sahe because he was uncooperative. S. 66 of the Police Act directs that senior officers who commit an offence against discipline shall be dealt with by the Police Service Commission who are obliged to hold hearings and give the accused the right to respond and appeal if necessary. While under oath, Mr Siba admitted to the Ombudsman that he was aware that the appropriate course of action was to discipline an uncooperative officer.	He also said that Mr Sahe was a good, experienced officer however he did not want to instigate disciplinary procedures, he just wanted to retire him. I find that Mr Siba well knew that he was trying to manipulate the law to suit his own agenda.

Finding 2: The conduct of the Police Commissioner, Mr Luc Siba, was contrary to law in that he withheld Mr Sahe's retirement.

6.2	Mr Siba quotes Section 6 of the Police Act (CAP 105) as his authority to withhold retirement because of 'unforeseen circumstances'. Section 6 of the Act does not give this power. I find that this act was an attempt to deal with the consequences of the flood of retirements.

Finding 3: The Police Commissioner, Mr Luc Siba, breached the Leadership code.

6.3	Mr Siba, as Police Commissioner, had an obligation to conduct himself in such a manner that his integrity was not questioned, and that he did not cause respect and confidence in the Government of Vanuatu to be diminished. His decision to ignore proper procedure and to retire twenty two Police Officers put the security of Vanuatu in jeopardy. His actions in retiring not only Mr Sahe but many other officers placed an enormous strain on government finances. A serious and far reaching consequence of Mr Siba’s behaviour was that the Police Force has been drained of qualified and experienced senior officers leaving a force of diminished quality and ability. I find that Mr Siba’s behaviour was unacceptable and not in the best interests of Vanuatu.

Finding 4: The conduct the Police Service Commission was based on irrelevant grounds and on irrelevant considerations.

6.4	The Police Service Commission members all knew the procedures involved in retirement and disciplinary matters but retired Mr Sahe on the direction of Mr Siba and the Chairman of the Police Service Commission, Mr Perei, without proper discussion and without access to written information. In her statement to the Office of the Ombudsman, Mrs Crowby said that there was little discussion, and everything was already prepared to retire Mr Sahe, which was the normal procedure as often retirement letters had been issued before the PSC even met. She also stated that the Police Commissioner informed the PSC that it is a disciplinary measure to retire a senior officer if he disobeyed orders. No evidence was tended about the alleged offence, and Mr Sahe was not involved in the procedure. Mrs Crowby also stated that this was normal procedure when the Police Commissioner wanted to retire someone.

6.5	When questioned, Mr Perei was eager to deflect adverse comments away from himself and suggested that it was solely Mr Siba who directed the members to approve the retirements. Interestingly, while under oath, Mr Perei stated that only four police officers were retired under his chairmanship, however records indicate that the number was twenty two. He also stated that he was well aware that retirement was not the appropriate discipline for officers who did not co-operate and had advised Mr Siba that a police officer who was considered uncooperative be disciplined not retired. However, Mrs Crowby stated under oath that at the time of these events, both Mr Siba and Mr Perei were adamant that police officers who did not co-operate were to be disciplined by retirement and that this was the appropriate form of discipline.

6.6	In his sworn statement to the Office of the Ombudsman, Mr Waimini Perei stated that the matter had been before a Court which had justified the Police Commission's behaviour. This was later confirmed to be untrue and just one of a string of questionable statements made by Mr Perei. I find that the Police Service Commission was ineffective and did not do the duty required of it.

Finding 5: The administrative practice of the Police Service Commission was defective.

6.7	No Agenda was circulated before the meetings of the PSC, nor was any file or documentation presented for discussion before, during or after meetings. Minutes were apparently taken by the Chairman, however according to Mr Amos Andeng, these were scrappy with very little information. Mrs Crowby said that she had taken minutes at one time, but the Chairman never used them because they were written in French. The present Chairman of the PSC stated under oath that he could find no minutes of meetings during the term of Mr Perei’s chairmanship. However, on 11 September 1996, Mr Perei delivered to the Office of the Ombudsman a hand-written document entitled 'PSC minutes of 29th August 1995' which briefly outlines a resolution to retire five police officers. Following on from that resolution is the heading 'PSC minutes of 24/OCT. 1995 ...' which lists three officers for early retirement. Interestingly, in the list of members present, Mr Andeng is referred to as 'MP A. Andeng' although he was not elected until November 1995. This suggests that these minutes may have been written after November 1995 and may confirm that there were no minutes taken during any meeting during that period. (see Appendix F) I find that the practices of the Police Service Commission were unacceptable.

Finding 6: Section 28 of the Police Act (CAP 105) is defective in that it is unclear about reasons for compulsory retirement and does not allow for appeal against compulsory retirement.

6.8	Section 28 states the reason for compulsory retirement is '... the renewal of holders of public offices within the Force'. It apparently means that where officers are incapable of holding office, they are retired. These words are extremely unclear and lend themselves to be manipulated to fit any situation as happened in the retirement of Mr Sahe. Under this law, the officer does not have any opportunity to defend any charges of incapacity made against him in line with the common law concept of natural justice - that is that the accused must be allowed the chance to he heard. Article 5(1)(k) of the Constitution also demands equal treatment under the law or administrative action; the Police Act demands a hearing with a right to appeal for a disciplinary offence, however denies recourse to those compulsorily retired for perceived incompetence. I find this law defective.

Finding 7: The conduct of Mr Charlie Nako was contrary to law in that he reinstated Mr Sahe.

6.9	A minister has no power to appoint or dismiss any police officer. S10 of the Police Act is absolutely clear that senior officers are appointed by the Police Service Commission on the advice of the Police Commissioner. The action taken by Mr Nako in attempting to reinstate Mr Sahe seems to be just one of a series of patching up measures taken to cover up the wrongful actions of Mr Siba and Mr Perei. I find that Mr Nako’s behaviour indicates that not only does he have an ignorance of the law and his role as a Minister, but also indicates that he condoned the improper actions of Mr Siba and Mr Perei. I find Mr Nako’s behaviour unacceptable.

Finding 8: The Minister responsible at the time, Mr Charlie Nako breached the leadership code.

6.10	Mr Nako's ignorance of his powers and duties demeans his position, diminishes respect for and confidence in the integrity of the Government of the Republic of Vanuatu. Instead of ensuring that the Police Department functioned effectively and within the law, Mr Nako did nothing to stop the erosion of the Force and in fact actively condoned the misconduct of Mr Siba and Mr Perei. 

Finding 9: The conduct of Mr Perei and Mr Siba was contrary to law in that they breached the Finance Regulations.

6.11	The Finance Regulations require that officers responsible ensure that funds are available when certifying expenditure. After Mr Sahe and other officers were notified of their compulsory retirement, it was discovered that there were no funds available to pay them. Mr Siba authorised the payments and Mr Perei signed the authorisations. When it was realised that no money was available, Mr Siba tried to postpone the retirements until funds were available. However, Mr Siba had no legal right to withdraw the retirement notice in an attempt to cover his breaches of the Finance Regulations. I find that the behaviour of Mr Siba and Mr Perei was unacceptable.

Finding 10: Mr Amos Andeng breached the leadership code.

6.12	Mr Andeng was a member of the Police Service Commission at the time of these events. As such, he was a leader under the Ombudsman Act. He was fully aware that disciplinary measures should have been taken and that the course of action followed was improper. As a member of the Police Service Commission, he was aware of procedural requirements of meetings. I find that his conduct diminishes respect and confidence in the government of the Republic of Vanuatu.

7. RECOMMENDATIONS

Recommendation 1: That the powers and duties of the Police Service Commission be clearly defined and documented.

Recommendation 2: That guidelines for content and procedure within Police Service Commission meetings be set and documented.

Recommendation 3: That all Police Service Commission members be classed as leaders under the Constitution.

Recommendation 4: That Section 28 the Police Act (CAP 105) be reassessed and clarified.

Recommendation 5: That Mr Siba, Mr Perei, Mr Mansale, Mrs Crowby and Mr Andeng not be appointed to positions that demand integrity and effective administrative skills.

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, Deputy Prime Minister Fr Walter Lini as Minister for Internal Affairs, and the Police Service Commission consider these recommendations and put them into effect. 

8.2	The Office of the Ombudsman must be notified within thirty (30) days of the date of this report outlining the decision and steps proposed to implement the recommendations.

Dated the 20th day of August 1998

Marie-Noëlle FERRIEUX PATTERSON
OMBUDSMAN OF THE REPUBLIC OF VANUATU

9. INDEX OF APPENDICES

A. List of the twenty two officers retired and the dates on which they were retired..

B Notice of Compulsory Retirement dated 24 October 1995 addressed to Deputy Commissioner Sahe

C Withholding of Compulsory Retirement dated 23 January 1996 addressed to Deputy Commissioner Sahe.

D Reinstatement to Active Duty dated 26 February 1996 addressed to Deputy Commissioner Sahe.

E Advice from the Attorney General dated 21 March 1996 addressed to Deputy Commissioner Sahe.

F Minutes of Police Service Commission Meeting dated 24 October

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