#”BROWN OWL”. NEITHER WISE NOR JUDICIOUS

A “war of words”, the Fiji Times called it on its front page on Tuesday – the Registrar of Political Parties and Supervisor of Elections, Mohammed Saneem, going head-to-head with the leader of the National Federation Party, Biman Prasad, in a public squabble over the allocation of party funding. Saneem accuses Prasad of breaching the electoral laws in relation to donations he made to the NFP in the years 2016 and 2017, which he says exceeded the maximum amount allowed by law for any person in any one year. That maximum is $10,000 and Saneem alleges that Biman Prasad’s total donations in the years in question “so far amount to $28,252”.

For his part, Biman Prasad says $22,736.95 of that amount was donated to the NFP’s Relief and Welfare Fund to assist the victims of Cyclone Winston, which devastated Fiji in February 2016. But Mohammed Saneem contends that only $2154.80 went to the cyclone relief effort and the rest was spent on “general party activities”. This included the purchase of office supplies and payments to schools and individuals, including the NFP President and sitting MP, Pio Tikoduadua.

Why payments allegedly made three and four years ago have become an issue now isn’t entirely clear. Were these donations always in the returns that would have been provided to Mohammed Saneem as Register of Political Parties? And if so, why weren’t they raised earlier if he had a problem with them? Those questions go to the heart of a much bigger issue that we’ll examine in detail shortly. Because with the NFP’s alleged transgressions, the Elections Office appears to be following the same path that it took against Sitiveni Rabuka in 2018 – a referral by Mohammed Saneem as Registrar to the Fiji Independent Commission Against Corruption (FICAC) followed by a prosecution in the courts that if successful, would bar Biman Prasad from contesting the 2022 elections.

As we’ll see, Mohammed Saneem isn’t genuinely independent at all – especially judged by international standards – and neither is FICAC. Both are instruments of the Attorney-General and Minister Responsible for Elections, Aiyaz Sayed-Khaiyum. The AG is Saneem’s line minister, appointed by him and reporting to him. I can personally attest to the closeness of their relationship having witnessed it at first-hand, as well as the fawning deference that Saneem routinely shows the AG.  And as I have previously reported, FICAC routinely briefs the AG as part of its constitutional duty to liaise with him as a prosecution arm of government separate from the DPP. 

I have described FICAC as the AG’s personal “tonton macoutes”, the dreaded agency of oppression in Haiti in the 1960s. Yet theatrics aside, the bottom line is that neither the Elections Office nor FICAC are genuinely independent in the way that would be required in advanced democracies. The AG ultimately controls them and is in regular contact with Mohammed Saneem as Registrar of Political Parties and Supervisor of Elections and with Rashmi Aslam, the Deputy Commissioner of FICAC. In Aslam’s case, the 2013 Constitution requires Aslam to regularly update the AG on its investigations and that axiomatically gives him the opportunity to influence its direction.

The questions the Fijian people have a right to ask are these: 

1/ When has Mohammed Saneem ever raised a single concern about the conduct of the ruling party, FijiFirst, in the same aggressive way he has pursued the opposition parties in the parliament – SODELPA and the NFP? The answer is never, even when alleged transgressions of the electoral laws have been highlighted, such as the current series of stories by Victor Lal on Fijileaks that allegedly show multiple donations to FijiFirst in excess of the $10,000 statutory limit by the same individuals

2/ When has FICAC investigated, let alone pursued, a FijiFirst member of parliament in the same way that it has pursued Sitiveni Rabuka as leader of SODELPA and is now investigating the NFP leader? The answer again is never. And only the most gormless Fijian would believe that this is because there has been no cause for it to do so. 

I have already outlined my astonishment when the AG told me personally in mid-2018 that one of the ministers in the FijiFirst government was “corrupt”. It was at my farewell meeting with him in which I cited evidence that I had also been told about this individual. I am willing to testify under oath at any formal proceedings that this conversation took place. It severely eroded my confidence in the AG as the government’s chief legal advisor and in the FijiFirst government generally. Because right from the start of the Bainimarama takeover in 2006, a “clean-up campaign” to rid the country of corruption was a central plank of its program. 

By the AG’s own admission, there is still corruption at the heart of the FijiFirst government because this person remains a minister in 2020, some two and a half years after our conversation in an anteroom of Level 9 in Suvavou House. Has it been referred to FICAC? Evidently no. It is an unforgivable breach of trust with the Fijian people for which the AG also deserves to be held to account. Because in failing to deal with the aforementioned minister, he has put politics before principle. And the minister in question is still in power and presumably still behaving in a corrupt manner. 

So Grubsheet readers will forgive my scepticism about the resolve of the government and institutions of state such as FICAC and the Elections Office to truly represent the interests of the people, as opposed to the interests of those who have now held the reins of power in Fiji for 14 years. And also understand why I am part of a movement pressing for changes in the FijiFirst government so that ministers with integrity begin a process of genuine reform.

Having said all this, I want to make one thing clear. There is no evidence that either the 2014 election or the 2018 election were rigged, which is the constant refrain from elements of the opposition. There were foreigners with no connection with the government and no “skin in the game” involved in the process right from the start, including a Deputy Supervisor of Elections from Australia in 2014 in the form of Michael Clancy and a Technical Advisor to the AG and Mohammed Saneem in the form of another Australian, Laurie McGrath. In 2018, the Deputy Supervisor was a New Zealander, Karyl Winter, with a substantial electoral background. And in both elections, an Australian by the name of Robin Boyd was Director of Operations in 2014 and an advisor in 2018, ensuring the smooth conduct of the polling. 

There were also a large number of foreign election monitors for both polls – the Multinational Observer Group (MOG) – who signed off on their legitimacy – declaring them a free and a genuine expression of the will of the Fijian people. I have already reported that at the instigation of the Australian observers in 2014, the term “fair” was removed from the final election report because of the overt media bias in the government’s favour from the Fiji Sun and FBC. But I repeat: On all the available evidence, the elections were NOT rigged.

Nonetheless, that doesn’t mean that the individuals chosen by the AG to conduct the elections were “independent” in the true meaning of the word. The fact that Aiyaz Sayed-Khaiyum is Minister Responsible for Elections in itself erodes the principle of genuine independence. It means everyone reports to him – the Electoral Commission and Mohammed Saneem, who also reported to the AG in his previous position as Permanent Secretary for Justice before the AG engineered his move to the Elections Office.

In my experience, Mohammed Saneem has always adopted a posture of deference to the AG, visiting him at his office on Level 7 of Suvavou House and standing before him as the AG sits at his desk addressing him as “Sir”. To my eyes, this was highly unusual for the holder of an independent office of state, who would normally be expected to be treated as an equal to a politician, even when that politician is his line minister. And I can personally attest to the level of apprehension Mohammed Saneem displayed before any encounter with the AG because I have witnessed it on multiple occasions. When I worked on the 7^th floor, he would sometimes come to my office along the corridor from the AG and ask “is he in yet?”, peering around the door like an anxious meerkat waiting for the AG to arrive in majestic procession with his security detail. It was so striking as to be a subject of wider discussion in government. 

Indeed, Mohammed Saneem’s excessive deference earned him two nicknames during the period I was in Fiji – “Brown Owl” – as in the leader of a Brownie troupe in Robert Baden-Powell’s scouting movement and “Dobby the House Elf” – the character in Harry Potter who is excessively obsequious and is always asking “can I do anything for you, Master?”  

However much these appellations were jocular, they were coined to reflect Mohammed Saneem’s excessive deference towards the AG, both as Permanent Secretary for Justice and  as Registrar of Political Parties and Supervisor of Elections. Indeed, he seemed to hold him in awe. When he concludes his term, Saneem’s ambition is to become a judge. Yet his subservience to political authority ought clearly to be an impediment, coupled with his demonstrable failure to act judiciously yet again in the case of Biman Prasad and the NFP.

Without taking sides in their war of words – because the details of the dispute are hotly contested – it’s nonetheless worth examining why all this is being fought out in the public arena in the first place. Why does Mohammed Saneem think it appropriate to engage in a slanging match with Biman Prasad when he has already referred the case to FICAC?  Indeed why does the Registrar of Political Parties and Supervisor of Elections always insist on grandstanding before the public on any number of issues, including this one? He is meant to be above the fray – to police the political parties with impartiality, a high level of judgment and the use of unemotional, sober language. Yet he has become a political player himself, employing the extravagant language of politics and engaging in the cut and thrust of political discourse in an overtly partisan way. 

Rather than the sober pronouncements in written form that characterise the holders of similar positions in the advanced democracies, Mohammed Saneem is what might be described as a media tart – issuing as many statements and conducting as many news conferences and other media appearances than even mainstream politicians in Fiji. The perpetually youthful-looking wonder boy from Labasa just can’t seem to get enough public attention. And it long ago became an impediment to him engendering confidence in the performance of his duties and being seen to uphold the dignity and integrity of his office. 

What has been glaringly obvious from Mohammed Saneem’s public pronouncements on Biman Prasad’s case is that he has taken it upon himself to run arguments about the merits of that case before it has gone to FICAC. Why is evidence of alleged wrongdoing being aired in the media before the FICAC investigation, let alone that evidence being tested in a court of law? Saneem’s account of what happened is hotly disputed by Biman Prasad. That evidence may be strong – as in Saneem’s account of it – or it may be flimsy – as in Prasad’s account of it. Yet before the FICAC investigators even examine the evidence, Saneen has run a public case against the NFP leader. It is trial by media and an abuse of process that has no place in any democracy.

Indeed, it would be considered highly inappropriate in advanced democracies for a statutory body like the Fiji Elections Office to air the substance of the allegations against a political party or an office holder of that party before these allegations are sent to an investigating authority like FICAC. The evidence has already been presented by Mohammed Saneem in the media as fact – the washing declared dirty even before it has been strung up for proper scrutiny. So that if FICAC does decide on the evidence to lay charges against Biman Prasad and the matter proceeds to trial, that process has already been compromised by the evidence being presented as fact before a formal investigation is conducted. And this could obviously have a bearing on any judicial finding. 

Without prejudging the details – as Saneem has done – was Biman Prasad, as NFP leader, aware of the administration of the funds of the Party or would this be the responsibility of the Party’s registered officer? While Biman Prasad allegedly donated more than permitted under the Act, did he do so in the belief that the money would be used by the Party for cyclone relief and nothing more? Were these donations always detailed in the returns provided to the Registrar of Political Parties? And again, if so, why were they not raised earlier? Why has it taken until October 2020 for donations allegedly made in 2016 and 2017 to come to the attention of the Registrar? These are some of the questions that the Fijian people are entitled to have answered.

Under normal circumstances, the Registrar of Political Parties could have requested details from the NFP and if he wasn’t satisfied, referred the matter to FICAC and allowed the process to take its course. Instead, Mohammed Saneem has prejudged the case and effectively cast Biman Prasad as guilty in the court of public opinion before it has been sent to the investigators, let alone awaiting a proper trial. And further questions follow as a matter of logic. 

Why did he do it? Does he have a personal gripe against the NFP leader? Was he influenced to do so by the Attorney General, whose ill-will towards Biman Prasad is well known. And are these the first steps to try to get Biman Prasad ruled ineligible for the 2022 election? Because the NFP leader’s alleged transgression – a failure to disclose – is very similar to that which led to FICAC’s failed prosecution of Sitiveni Rabuka, which was seen by many as an attempt to prevent him from contesting the 2018 election. It hasn’t been lost on the opposition that with two years still to go to the 2022 poll, there is arguably ample time to exclude Biman Prasad in a way that wasn’t possible with Rabuka, whose last minute acquittal on appeal enabled him to take the FijiFirst government to the brink of defeat.

In his public statements, Mohammed Saneem went beyond prejudging Biman Prasad. He also launched an extraordinary public attack on the NFP leader’s lawyers, accusing them of “resorting to threatening and condescending behaviour” to try to “pressure and coerce” him. His public statement referred to an “attempt to unduly influence the Registrar from carrying out his functions and necessary responsibilities under the law and carry out his functions as expected in the public interest”. “I wish to put both Hon Prasad and his purported law firm on notice that such actions attempting to compromise the role of the Registrar will not be taken lightly”, Saneem said.

According to legal sources, it is convention that lawyers acting for any party are doing so on behalf of their clients, these representations are considered confidential and it is extraordinary for a public official such as Mohammed Saneem to target them publicly because of those representations. Yet Saneem has not only named Biman Prasad’s legal counsel – Adish Narayan – but castigated him publicly for the contents of confidential correspondence that forms part of his client’s defence. So the Registrar of Elections stands accused of grandstanding and politicising the case even as he accuses Biman Prasad of doing the same. It is especially egregious from a man who harbours ambitions to eventually go to the bench and stand in judgment of others.        

An extra political dimension was added on Wednesday (Oct 21) when the Attorney General’s journalistic handmaiden on the Fiji Sun, Jyoti Pratibha, weighed into the issue with an extraordinary editorial in the Fiji Sun entitled “What is NFP wanting to hide from the public?” “The Registrar of Political Parties has always issued public statements regarding any political party which he feels is not on the right track or is breaching the law”, she wrote. Yes, Jyoti. Every party except FijiFirst.

And then this: “By threatening legal action, the NFP and its lawyers are casting doubts on the political party and people are questioning what is the NFP wanting to hide from the public. We have independent institutions. We need to let them get on with their work. Let the law take its course”, Pratibha concluded.

Yes, Jyoti, our institutions are as independent as your newspaper. Mohammed Saneem prejudged this case in the media even before it went to the investigators. The process has already been manipulated and compromised, just like the editorial columns of your newspaper. And Fijians aren’t so much questioning what the NFP is trying to hide from the public but the alarming lack of independence of all of you and the clear and present danger that presents to Fijian democracy. Shameful on every count.