Analysis:

As the legal wrangle continues on the way forward for SODELPA in the wake of the court’s landmark ruling, members’ attention has turned to Adi Litia Qionibaravi.

The former general secretary has been reinstated by the Registrar of Political Parties after Civil High Court judge Justice Vishwa Datt Sharma ruled that the election of office bearers at last years annual general meeting in Savusavu was null and void and therefore invalid.

Some members question why she was brought back while Ro Filipe Tuisawau and Usaia Waqatairewa were removed as president and general secretary respectively.

They need to understand that the Registrar, Mohammed Saneem, has read the judgment, interpreted it and made his decision. He has acted by virtue of the fact that he is the custodian of political parties’ constitutions governed under the  POLITICAL PARTIES (REGISTRATION, CONDUCT, FUNDING AND DISCLOSURES) ACT 2013 with respect to the Code of Conduct of respective officers and officeholders.

After the 2019 AGM

After the botched annual general meeting (AGM) last year Adi Litia provided the names of the new office bearers to Mr Saneem as required by the Act.

Mr Saneem was obligated to act after he read Justice Sharma’s ruling and was copied correspondence between the lawyers in the case, AK Lawyers (plaintiffs) and Vosarogo Lawyers (defendants). He needed to update his records.

He also needs to ensure that new officials are elected in compliance with the provisions of the party’s constitution and the Political Parties Act.

He had explained the process and the reasons of his decision in a meeting with caretaker party leader and Opposition party leader Sitiveni Rabuka before he announced it.

Paid advertisement

It is interesting to note that last Saturday before their Monday meeting Mr Rabuka had put out a paid advertisement in The Fiji Times that based on the court ruling Ro Filipe would continue as president, Adi Litia would carry on as vice-president and Usaia Waqatairewa would continue as general secretary.

He called on members to remain steadfast. It is not clear whether his statement was based on legal advice or his own interpretation because in the exchange between the lawyers, their lawyer Filimoni Vosarogo contradicted Mr Rabuka’s statement.

Mr Vosarogo said on Sunday, in response to the plaintiffs lawyers, that Ro Filipe and Mr Waqatairewa had no authority to speak on behalf of the party.

Only Mr Rabuka and the solicitors were allowed to do so. Will Mr Rabuka go back to the members, retract his earlier statement and apologise for misleading them?

Were his, Ro Filipe’s and Mr Waqatairewa’s earlier statements bordering on contempt of court?

In the absence of an appeal, Justice Sharma’s judgment is it and must be complied with otherwise it makes the law and the legal process a farce.

Adi Litia carries a lot on her shoulders and has to answer a lot of questions.

As a qualified lawyer and accountant and a paid employee of the party she was a key administrator of the party. Her advice and opinions were valued by the management.

Some of the questions that could be asked are:

Did she act on the basis of her knowledge and understanding of the law?

Whatever the answer is, did she breach the Political Parties Act?

Under section 27 – it says

— (1) A person who—

(a) fails to furnish particulars or information required to be furnished by a political party or by him or her under this Decree;

(b) makes a statement which he or she knows to be false or which he or she has no reason to believe to be true; or

(c) recklessly makes a false statement under this Decree, commits an offence and shall be liable upon conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 5 years or to both.

Justice Sharma’s judgment

Excerpts of Justice Sharma’s judgment are reproduced here to show extent of breaches by the party.
87. The assertion by the 4th Defendant (Adi Litia) that the Suva Constituency Council Special Motion was received on 6th  June 2019 and it was not possible to organise a working committee meeting to consider the proposed amendments for inclusion in the General Assembly Meeting Notice that was published on 7th  June 2019 is rather misconceived. Section 12.8 clearly stipulates that if the nature of the business proposed requires a Special Resolution, the General Secretary must cause the publication of a Public Notice 21 days prior to date fixed for the AGM. Again, this is a direct breach of Section 12.5(a).

95. Further, the failure to communicate formally to all Constituencies inviting  Motions  for consideration at the General Assembly four  (4)  months  prior  to  the  AGM  also  led  to  the  fact that the Constituencies were not in a position to submit and furnish their intended Motions (if any) within the prescribed timeframe of  2  months  as  provided  for  and  required  by  Section 12.5(b) of the SODELPA Constitution. The reason being that there was a lack of or no formal communication mode to the Constituencies at least four (4) months prior timeframe from the scheduled SODELPA AGM. To be more particular, this conduct on the part of the Management Board and the 4th Defendant in her capacity as the General Secretary defeated the purposes provided for in the provisions of Sections 12.5(a) and 12.5(b) of the SODELPA Constitution accordingly.
96. The Defendants argument is that Section 12.5(a) of the SODELPA Constitution can only be breached if the Management Board had directed the General Secretary to invite Motions from the Constituencies and that the General Secretary did not comply with such direction and  that there is no evidence produced to the contrary or in defiance of a directive by the  Management Board.

However, there is admission on the part of the 4th Defendant at paragraph 22 of the defendants Affidavit advancing the excuse in respect of her non-compliance with Section 12.5 (a) of the SODELPA Constitution whereby she stated “The constitutional provision on Special Motions is self-explanatory and Constituencies who wish to amend the Constitution via Special Motion need not wait for the Management Board to seek Motions via the General Secretary and cannot use that as an excuse for the late submission of their Motion to the Party Office”.

97. The fact of  the matter  is, that the Management  Board Meeting of 17th  May 2019 fast tracked its Agenda and the decisions to schedule the SODELPA AGM on 28th June 2019.

This in fact categorically defeated the purposes of Section 12.5(a) and further led to defeat the purposes of Section 12.5(b) of the SODELPA Constitution. The reason for fast tracking the A9enda and the decisions scheduling the SODELPA AGM only six (6) weeks away from the Management Board Meeting is best known to the Management Board and the 4” Defendant accordingly.

98.  In  absence of  any  such non-compliance only resulted  in the failure by the Management  Board and the 4th Defendant in her capacity as the  General Secretary  of  the Party to formally communicate to all Constituencies inviting motions for consideration at the General Assembly. This failure further led to the contravention and  breach  of  the  provisions  of  Section 12.5(a) and  l2.5(b)  of the SODELPA Constitution accordingly.
99. For the reasons stated hereinabove I find that the 4th Defendant failed to communicate formally to all Constituencies inviting Motions for consideration at the General Assembly four (4) months prior to the scheduled date of General Assembly which resulted in the breach of Section 12.5(a) and Section 12.5(b) of the SODELPA Constitution.
111. The allegation of the endorsement of the receipt numbers of each financial member of the 1st Defendant to their respective ballot paper is not denied by the Defendants and reference is made to paragraph 25(b) of the 4th Defendants Affidavit stating-

“As the General Secretary, I approved the endorsement of the receipt number for each member issued a ballot paper, on the back of their ballot paper, to ensure that only financial members of the Party cast a ballot”.
113.  The General Secretary’s conduct and action in admitting the  endorsement of the receipt numbers at the back of each ballot paper for election purposes amounted to the tempering of the ballot papers and the voters votes at the SODELPA AGM Election for the  respective Office Bearers.
130. The 4th Defendant failed to comply with the mandatory provisions of Section 12.5(a) of the SOOELPA Constitution which  required  to invite motions from the Constituencies at  least 4 months prior to the AGM.
131. The failure on the part of the 4th Defendant in her capacity as The General Secretary of the 1st Defendant to invite Motions within the stipulated timeframe of 4 months prior to the AGM gave rise to the following contraventions –

i. The 1st named Plaintiffs Motion not being tabled at the SODELPA AGM held on 28th June 2019:

ii. The 1st named Plaintiffs Right was infringed as he could not have his Motion heard and vote done before the members of the 1st Defendant at the AGM.

iii. The Plaintiff’s right to participate in the activities of the  1st  Defendant was infringed: and

iv. The remaining Plaintiffs Rights to hear and vote on the Motion was denied, which conduct had infringed their Rights to participate in the activities of the 1st Defendant.

137. Further, the 1st Defendant and the remaining Defendants must always comply with the Code of Conduct in terms of Schedule 1 of the Political Parties Act 2013 which deals with the Code of Conduct for Political Parties. In particular, the Defendants ought to have complied with the Code of Conduct dealing with Rights of all persons to participate in the political process and uphold the SODELPA Constitution.
145. The fact of the matter is that the 4th Defendant admits holding the position of the General Secretary until at least as late as 31st October 2019 when she formally handed over the affairs of the General Secretary position to the 5th Defendant who was then appointed as the new General Secretary on 12th August 2019 (reference is made to paragraph 30(g) and (j) of the Defendants Affidavit filed herein).

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