The Opposition Leader, Sitiveni Rabuka, has embarked on an intriguing course of action by lodging a formal complaint with the Fiji Independent Commission Against Corruption (FICAC) about campaign donations made to the ruling FijiFirst Party. The action is not only going to test the genuine independence, transparency and accountability of FICAC but of the Registrar of Political Parties and Supervisor of Elections, Mohammed Saneem. Under the 2013 Constitution, FICAC is required to consult the FijiFirst General Secretary – the Attorney General and “Minister for Everything”, Aiyaz Sayed-Khaiyum – which makes it difficult for it to investigate FijiFirst without informing him of its progress. And in the case of Mohammed Saneem, he owes his position to the AG, who appointed him, and the AG is his line minister in his role as Minister Responsible for Elections. Saneem is already under fire for being allegedly partisan and I recounted last month how, in my experience, he treats Aiyaz Sayed- Khaiyum with extreme deference and a degree of trepidation.
At face value, the prospects of a free and fair FICAC investigation don’t look good. Because as I witnessed myself at first hand in government, both supposedly independent institutions – FICAC and the Elections Office – were compromised right from their inception because of the way they are structured. They are effectively agents of the Attorney General, secretly doing his bidding beneath a veneer of “independence” that would not survive proper scrutiny from parliaments or the media in other democracies and especially in our larger neighbours, Australia and New Zealand. See “Brown Owl. Neither Wise nor Judicious (Oct 22) and A Tangled Web of Secrecy and Control Part 2 (Oct 1).
With the clock ticking towards the SODELPA leadership contest on November 28 that will determine whether Sitiveni Rabuka goes head-to-head with Frank Bainimarama at the next election in 2022, Rabuka has cleverly decided to test the independence of FICAC and the Elections Office by requesting official scrutiny of the donations made to FijiFirst at the last two elections in 2014 and 2018. And there are clear signs that he has good reason to be suspicious that the Elections Office under Mohammed Saneem has been less vigilant in policing alleged breaches of the electoral laws by FijiFirst than it has about pursuing alleged breaches by the opposition parties.
Without pre-empting whatever findings may eventually emerge, the Fijian people already have ample reason to suspect that there is one rule for the government and the AG as its chief legal advisor – who has a clear conflict of interest in his dual role of FijiFirst General Secretary and Minister Responsible for Elections – and quite another for SODELPA and the National Federation Party. The Elections Office and FICAC have already worked hand-in-hand on a failed prosecution of Sitiveni Rabuka that, had it been successful, would have prevented him from contesting the last election. And the Elections Office recently referred the NFP leader, Biman Prasad, to FICAC over alleged donation irregularities that if successful, would bar him from contesting the 2022 election. Yet at no stage whatsoever has the same level of scrutiny been applied to Mohammed Saneem’s patron, the AG, as FijiFirst General Secretary despite what appears, at face value, to be serious irregularities on the part of the ruling party that are starting to emerge publicly and obviously warrant thorough investigation.
A number of alleged breaches of the electoral laws by FijiFirst have been progressively highlighted over recent weeks by the British-based Fijian academic and journalist, Victor Lal, on his Fijileaks website, including multiple donations by individuals in excess of the legal limit and donors trying to circumvent scrutiny by not providing their full identities. A favoured tactic is evidently for some FijiFirst donors to use their second names rather than their surnames when they submit donations so that they remain below the radar in any casual examination of the donor records.
Before we go into detail, it’s worth examining some of the features of the relevant legislation – the Political Parties (Registration, Conduct, Funding and Disclosures) Act, that governs donations to the parties. No funding may come from a foreign government, a foreign national or intergovernmental of non-governmental organisation. And the Act limits the amount that a Fijian citizen or former citizen can donate to $F10,000 in any one year.
It doesn’t define “year” so a donor could conceivably make a donation of $10,000 on December 31 and another $10,000 on Jan 1. There is also no age restriction on donors. So it is perfectly conceivable that even the youngest children of Fijian citizens or former citizens can each give $10,000 along with both of their parents and other family members. Which in extended families can, and does, involve substantial sums being donated far in excess of the individual $10,000 limit.
An even more murky provision of the legislation allows a political party to receive funding from “the proceeds of any investment, project or undertaking in which the party has an interest”. The Act does not define “investment, project or undertaking”. So it appears to be perfectly permissible for a political party to invest in or conduct joint projects with companies or other entities and receive a return on that investment. Which obviously raises questions about the probity of any such arrangement if the political party is in a business venture with private companies and that party happens to be the government of the day. Vinod Patel, RC Manubhai or Tappoo in business with FijiFirst? It is entirely possible under the legislation. Which raises all sorts of questions about how those businesses might be treated by the regulatory authorities that also come under the government’s direction.
Victor Lal – who has made a name for himself over the years as Fiji’s foremost investigative journalist – has obtained the FijiFirst donor lists and has applied his forensic skills to uncovering alleged irregularities. Lal is no fan of Sitiveni Rabuka because of the events of 1987 and there is no suggestion of them working in tandem. But what he has uncovered so far has given Rabuka a solid basis on which to challenge the Elections Office and FICAC and put pressure on them to finally bring their powers of scrutiny to bear on the governing party.
Among Victor Lal’s latest revelations is evidence that the builder of Aiyaz Sayed-Khaiyum’s apartment block in Wailoaloa, Nadi, allegedly made two donations to FijiFirst in 2018, one of $10,000 under his real name, Shailendra Paliachi Kumar, and another of $5000 as Shalend Tulsi. According to Lal, Tulsi is Shailendra Kumar’s fathers name and his company undertaking the building work for the AG and his wife, Ela, is called Tulsi Construction. The allegation is in addition to Lal’s previous claim that Dickson Peng – a director of the Freesoul company that is currently before the courts over the environmental damage it caused at its development in the Mamanucas – made two donations to FijiFirst on the same day for the 2014 election, one for $10,000 and another for $3000. Lal has called on FICAC to investigate both cases but there has so far been no response from FICAC itself.
It all begs the question as to why Mohammed Saneem and his team have been either unable or unwilling to do what Victor Lal has been able to do. Yet in going to FICAC as Opposition Leader, Sitiveni Rabuka is clearly intent on testing the integrity of the system and forcing the parties into a corner. Assuming it accedes to Rabuka’s request, FICAC will presumably now have to examine not just whether the donations to FijiFirst were lawful but the Election Office’s conduct in dealing with alleged breaches. The spotlight is now firmly on both institutions and especially their relationship with the AG. And what eventually emerges has all sorts of implications for public confidence in the system and the government’s electoral prospects two years out from an election that the latest polls show most Fijians expect FijiFirst to lose.
In our first two instalments of A Tangled Web of Secrecy and Control, we demonstrated how Aiyaz Sayed-Khaiyum has used his power as Frank Bainimarama’s number two, along with his longevity in office, to gain control of almost every aspect of government and the majority of Fiji’s supposedly independent institutions. He has done so with the authority of just one man – Bainimarama – who increasingly gives the appearance of being a figurehead, leaving the day-to-day running of the government to the AG.
How long the Prime Minister can continue to protect his “sidekick” and de-facto deputy from a powerful coalition of those who want the AG gone is the dominant political discussion behind the scenes in Fiji. This coalition includes – by the AG’s own account – the iTaukei ministers in the government plus Mahendra Reddy and the Military Council, which assisted Bainimarama to seize power in 2006 but has been pressing for fundamental reform of the government since its disastrous near-loss in the 2018 election. The rumblings have intensified as the police and military investigate the AG’s alleged links to a bombing campaign in 1987. And for Frank Bainimarama, those rumblings are starting to erode his own position, with frustrated mutterings that if he doesn’t act soon, it may also be time for him to reassess his own position. He has a high degree of personal loyalty and still has time to turn the situation around. And his supporters hope that he does so sooner rather than later to preserve his own political legacy.
In this, Part 3 of our series, we examine some of the AG’s handpicked appointments to the boards of government entities, some of whom have serious conflicts of interest that would debar them – on the grounds of probity – from holding board memberships of government enterprises in other democracies. Given the current attention being given to donations to political parties, we identify – to the best of our ability – which of these board members appointed by the AG have contributed to FijiFirst, the political party of which he is General Secretary. As far as can be ascertained, they have done so within the law and there is no suggestion of wrongdoing. Yet as any lawyer will tell you, there is a difference between legality and probity, not only adherence to the law but “evidence of ethical behaviour and complete and confirmed integrity, uprightness and honesty in any particular process”.
The first board and the first individual to come under the Grubsheet spotlight is the national superannuation scheme, the Fiji National Provident Fund, and its chair, Daksesh Patel, whose glaring conflict of interest in also being Chair of Energy Fiji Limited we have highlighted in previous postings. That conflict of interest arises from Daksesh Patel having been chair of EFL at the time when $220-million of EFL shares were sold to the FNPF in a revenue raising exercise for government to meet the AG’s half-billion dollar budget shortfall.
Under the previous FNPF chair, Ajith Kodagoda, the FNPF declined to agree to the AG’s original request to buy double that amount – $440-million worth of EFL shares. Yet soon afterwards, Ajith Kodagoda’s term as Chair expired and Aiyaz Sayed-Khaiyum appointed Daksesh Patel in his place. Patel now chairs both seller and buyer and is clearly in a position to have a decisive influence on future FNPF spending decisions, including, perhaps, further FNPF purchases of EFL shares to raise more revenue for the AG at a time of acute budgetary distress. Daksesh Patel – the Executive Chairman of the Vinod Patel group as well as CEO of Australia’s Infrabuild steel group – is not only close to Aiyaz Sayed-Khaiyum personally to the extent of entertaining him on the AG’s visits to Sydney but is a donor to the FijiFirst Party, with a sum of $10,000 listed in the records obtained by Fijileaks.
As I have also detailed previously, another member of the FNPF board, structural engineer Sanjay Kaba, is also a close associate of the AG and has been both a significant fundraiser for FijiFirst and a donor to the party. The records show that Sanjay Kaba gave $10,000 to the party on April 13 2017. But in a highly questionable occurrence, the records show that he appears to have done so under the name of Sanjay Lal, Kaba’s middle name.
A third member of the FNPF board also known to be close to the AG – the Fijian-born Californian banker Mukhtar Ali – is recorded as having donated $5000 to FijiFirst. Which means that three of the most influential of the six directors who sit on the FNPF are not only associates of the AG but direct financial benefactors to the FijiFirst Party. Of the other three, two are civil servants, Makereta Konrote and Joel Abraham and the third, Kalpana Lal, works for the German aid agency GIZ. Yet the fact that the custodians of the retirement savings of the Fijian people with substantial business experience are all close to the AG and donors to the ruling party is a matter of legitimate public concern. And especially at a time when the AG is using the FNPF to prop up the economy and the Fund is being used as the principal vehicle to keep Fijian families afloat during the Covid-19 crisis. This includes the FNPF “assistance” for mortgage repayments that Aiyaz Sayed-Khaiyum intends to announce next week.
It is not possible in the space available here to detail every member of every government board but the lists are readily accessible on the Fijian government website directory.digital.gov.fj/ by clicking on the particular enterprise and then “board members”. On even the most casual perusal, you will find some of the biggest corporate names in Fiji, including some who also happen to be suppliers of good and services to the government and whose membership of particular boards already raises the issue of potential conflict of interest. But when that is coupled with the fact that some of those board members have been donors to the FijiFirst Party, then that level of concern goes to an entirely new level.
Without alleging any specific impropriety or wrongdoing, here is a list of those board members – aside from the aforementioned Daksesh Patel, Sanjay Kaba and Mukhtar Ali – who Fijileaks has identified as donors to the FijiFirst Party.
1/ Rajesh Punja, the Chairperson of Fiji Airways and Director of the Punja Group of companies: $45,000 in separate instalments.
2/ Bavesh Kumar Patel, Chairman of the Water Authority of Fiji and member of the R.C Manubhai business family: $35,000 in separate instalments.
3/ Ajay Raniga, board member of Tourism Fiji and Co-founder of Sunergise International and owner of Budget Pharmacy, Denarau Medispa and Spa Maya: $25,000 in separate instalments. Ajay Raniga’s wife, Kavita Raniga – now a member of Fiji’s Electoral Commission – also donated $10,000.
4/ Ashok Patel, Deputy Chair of the Land Transport Authority, board member of the Accident Compensation Commission and Director of R.C Manubhai and associated companies: a total of $20,000 in 2015 and 2018.
5/ Hemant Kumar, board member of Water Authority of Fiji and Director of Maisuria Design, architect: $17,000 in separate instalments (with his wife) in 2014 and 2017.
6/ Sunil Sharma, Chairperson of the Fiji Public Trustee Corporation and Senior Partner at PKF Aliz Pacific, the accounting firm owned by the AG’s aunt, Nur Bano Ali: $10,000 on 3/10/18.
7/ Manjula Dayal, board member of Post Fiji Limited and member of the Dayal industrial family: $10,000.
8/ Ratu Wiliame Katonivere, Tui Macuata and Chairman of the Pine Group of Companies, board member of Fiji Airports, Fiji Coconut Millers, Fiji Rice and the Fiji Sugar Corporation: $5000.
9/ Lawrence Tikaram, Chairman Post Fiji Limited: $3000.
Unless individual board members have also provided funding to other political parties (and some business figures do so to remain apolitical), securing a government appointment at the same time as those appointees are contributors to the ruling party’s coffers is questionable on a number of levels.
1/ It gives the appearance that these board appointments may be contingent on that support or be construed as a reward for services rendered.
2/ It gives the appearance that in carrying out their duties, board members may be driven less by the public interest than preserving the ruling party’s political fortunes.
3/ It gives the appearance that board decisions, especially when it comes to the procurement of goods and services, may favour those appointees who have given the government money to enable it to win office.
So that even if no laws are broken, it is the appearance of influence peddling or conflicts of interest that are enough to question the probity of such appointments. Board members of statutory enterprises and government businesses who make donations to FijiFirst are giving it the means to contest elections and stay in office, which axiomatically preserves and benefits their own positions and influence. Only the highest level of transparency and accountability can ensure public confidence in the integrity of the election donation process. And as Sitiveni Rabuka’s complaint to FICAC amply demonstrates, that confidence is sorely lacking in Aiyaz Sayed-Khaiyum’s Fiji.
Next time: The SODELPA leadership showdown. Who will emerge as victor?