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Vanuatu Ombudsman's Reports |
REPUBLIC OF VANUATU
OFFICE OF THE OMBUDSMAN
PMB 081
Port Vila
Vanuatu
PUBLIC REPORT
ON THE
MISAPPROPRIATION OF
THE PRISON PROJECT FUND
26 September 2003
8545/2003/24
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PUBLIC REPORT
ON THE
MISAPPROPRIATION OF
THE PRISON PROJECT FUND
In 1998, prisoners at Vila Prison were required to clean particular areas around Port Vila. In December 1997, following the endorsement of then Superintendent of Prisons, Mr Nathaniel Vira, former Officer-in-Charge Prisons, S/Insp John Tarimas and Sergeant Ron Temakon Tamtam set up what was known as the Prison Project Fund. The aim of the project was mainly to provide financial support to inmates who had needs such as medical bills. Prison officers also borrowed money from the fund and did not repay all monies owed.
The Ombudsman finds that the decision to set up the fund may have been contrary to law. Further, prison officers involved in borrowing money may have breached force standing orders. The Ombudsman has recommended for disciplinary actions on officers involved and also for the Office of the Commissioner of Police to run awareness programs for Force members, particularly on their internal rules and regulations.
PUBLIC REPORT
ON THE
MISAPPROPRIATION OF
THE PRISON PROJECT FUND
TABLE OF CONTENTS
SUMMARY
1. JURISDICTION
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
3. RELEVANT LAWS, REGULATIONS AND RULES
3. RELEVANT LAWS, REGULATIONS AND RULES
4. OUTLINE OF EVENTS
5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM
6. FINDINGS
7. RECOMMENDATIONS
8. INDEX OF APPENDICES
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1.1 The Constitution and the Ombudsman Act allow the Ombudsman to look into the conduct of government, related bodies, and Leaders. This includes the conduct of police officers within Vanuatu Prison Services in carrying out their duties and responsibilities with regard to the alleged misuse of prison project funds.
2. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED
The purpose of this report is to present my findings as required by the Constitution, the Ombudsman Act and the Leadership Code Act. The scope of the investigation was to establish the facts about the misappropriation of the Prison Project Fund where it was discovered that funds from the project for the benefit of the prisoners were misappropriated by police officers involved in the project.
This Office collects information and documents by informal request, summons, letters, interviews, research.
3. RELEVANT LAWS, REGULATIONS AND RULES
3.1 The statutory provisions relevant to this report are mentioned in APPENDIX K of this report.
4.1 In April 1999, the Office of the Ombudsman received a complaint on the alleged misappropriation of funds that the prisoners had raised by cleaning various places in Port Vila in 1998.
4.2 Following further inquiries, the Office found that in December 1997, former Officer-in-Charge Prisons, S/Insp John Tarimas and Sergeant Ron Temakon Tamtam had set up what was known as the Prison Project. Sergeant Temakon stated that the project had been approved by former Superintendent of Prisons, Nathaniel Vira. The objective of the project was mainly to provide financial support to inmates (see Appendix A for more details).
4.3 On 9 September 1998, former Sergeant Maoung Mathias borrowed 10,000 vatu from the project funds. Two months after that, Sergeant Temakon borrowed 13,000 vatu (see Appendix A).
4.4 In May 1999, the Office of the Ombudsman queried Sergeant Temakon on the details of the project's expenditure to which Sergeant Temakon replied the following month that the money had been spent on prisoners' medical bills. He also stated that he was in the process of refunding some money that he had borrowed from the funds and that he was following up with former Sergeant Mathias to do the same (See Appendix B).
4.5 In June, Asst. Superintendent of Prisons, Vake Rakau confirmed with the Office of the Ombudsman that Sergeant Temakon had pledged to refund the money he owed (see Appendix C).
4.6 The Office of the Ombudsman wrote to Police Finance Officer, Ms Iren James in July 1999 to confirm Sergeant Temakon's statement that the Police' budget for medication for the year had already been exhausted (see paragraph 2 of Appendix B).
4.7 Ms James responded that they have never refused to buy prisoners' medication but if there are financial constraints, alternative means are sought (refer Appendix D).
4.8 In August, the Office of the Ombudsman contacted the Drug Store and the Central Medical Store at Vila Central Hospital enquirying about the medication that had been prescribed for the prisoners.
4.9 In September 1999, an officer of the Ombudsman contacted the Drug Store who confirmed that medication had been bought by the Police with an LPO for a prisoner, Mr Silas Willie (refer to Appendix E and Appendix A).
4.10 The Office of the Ombudsman also contacted the National Bank of Vanuatu to confirm the bank account details set out in Appendix A. The bank verified that as at the date of writing (10 September 1999), the balance was at 3,271 vatu (see Appendix F).
4.11 Following the bank's report, the Office of the Ombudsman then wrote to Asst. Superintendent Rakau in October 1999 stating that following his report to the Office that Sergeant Temakon would be refunding the money he owed, the bank statement from the NBV showed that no refunds had been made. The Office of the Ombudsman then made several recommendations (refer Appendix G).
4.12 On 10 December 1999, the Office of the Ombudsman wrote to Officer-In-Charge Vila Prison, Senior Inspector Pierre Carlot asking him to respond to the letter that was sent to Asst. Superintendent Rakau. Mr Carlot informed an officer of the Ombudsman in January 2000 that he was not aware of the case but he suggested that Asst. Superintendent Rakau would respond by 2 April 2000.
4.13 On 15 February 2000, former Sergeant Mathias visited the Office of the Ombudsman and reported to an investigator of the Office of the Ombudsman that he had refunded the money owing to the project, but he could not prove it so he would see Asst. Superintendent Rakau to make another arrangement to refund the money (see Appendix H). He also stated that the account signatory was Sergeant Temakon, but eventually, it was passed on to him and one Jane Thomas.
4.14 On 5 May 2000, Asst. Superintendent Rakau wrote to the Office of the Ombudsman that Sergeant Temakon had refunded 2000 vatu but former Sergeant Mathias had not refunded any money. He added that he would be instructing Senior Inspector Carlot of Vila Prison to follow up on the matter (see Appendix I).
4.15 On 16 May 2000, an officer of the Ombudsman contacted the NBV to find out if any deposit had been made. He found that there was only 1,800 vatu remaining as there is always a monthly deduction of 200 vatu if the amount in the account is below 5,000 vatu.
4.16 On 24 May 2000, the Commissioner of Police, Peter Bong wrote to Asst. Superintendent Rakau and copied to the Office of the Ombudsman, that he was to ensure that both officers refund the money owing and then report to his office on the matter (refer Appendix J).
5. RESPONSES BY THOSE WITH COMPLAINTS AGAINST THEM
5.1 Before starting this enquiry, the Ombudsman notified all people or bodies complained of and gave them the right to reply. Also a working paper was provided prior to this special report to give another opportunity to respond. Responses were received from:
- Sgt Ron Temakon
- Hon. Prime Minister Edward Natapei,
- Ms Iren James
- The National Bank of Vanuatu
- Mr Frank Shem
Sgt Temakon's response is attached as Appendices L1 and L2. Sgt Temakon says that he was not aware of the Police rules and regulations on borrowing and that he was encouraged to borrow from the fund by his superior. He also admits some of their failures in managing the fund, particularly in terms of obtaining receipts. Later, he called to ask if the Ombudsman would release a public report if the money owing was returned.
Ms Iren James' response is attached as Appendix M. She confirmed her stand on the issues as stated in the "Outline of Events" in this report.
The NBV said that they had "no further comment to make" (see Appendix N). Like the NBV, Mr Frank Shem also said that he had no comments to make on the working paper (refer to Appendix O). The Hon. Prime Minister Natapei expressed his desire for a public report to be issued on the matter before a request would be made to the Commissioner of Police to consider disciplinary measures against those named in the report (see Appendix P).
5.2 No responses were received from former Commissioner of Police, Mr Peter Bong, S/Insp Pierre Carlot, Mr Ian Owles of the Drug Store, Mr Nathaniel Vira, Ass. Supt. Vake Rakau, Commissioner of Police, Mr Robert O. Diniro, Mr John Tarimas and Mr Maoung Mathias.
6.1 Finding 1: Former Superintendent of Prisons, Nathaniel Vira may have breached Section 7 (2) (c) of the Employment Act CAP 160 when he authorised Sergeant Temakon and S/Insp. John Tarimas to set up the Prison Project Fund and compel prisoners to work to raise money for the project.
Section 7 (2) (c) of the Employment Act allows those convicted by a court to work as long as they are supervised and controlled by a public authority and they are not hired "or placed at the disposal of private individuals, companies or associations;..." Sergeant Temakon and former Sergeant Mathias may have put the prisoners in a position where they were disposed of when they were earning money for the fund so as to provide income for the officers. The Sergeants borrowed money from the project whose prime objective was to raise money for the prisoners who were having financial difficulties, particularly in terms of medical expenses.
6.2 Finding 2: Sergeant Temakon and Former Sergeant Mathias may have breached Section 122 of the Penal Code and Force Standing Order No.E7 in borrowing money from a fund that was entrusted to them and then not returning the amount borrowed.
Section 122 of the Penal Code states that "...A person commits theft who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof..." Sergeant Temakon and Sergeant Mathias were entrusted with custody over the project's account held at the NBV. The fund was the property of the prisoners and failure to return all monies owing may be defined as theft.
Force Standing Order No.E7 states that it is a disciplinary offence for police officers to incur debts beyond their means. The order also states that borrowing "between members of the Force or outside the Force is strictly forbidden."
6.3 Finding 3: Sergeant Temakon and Former Sergeant Mathias may have committed a disciplinary offence as prescribed in Section 19(z) of the Subsidiary Legislation contained in the Police Act CAP 105.
The actions of Sergeant Temakon and former Sergeant Mathias are likely to bring discredit to the Police Force and this is deemed a disciplinary offence.
6.4 Finding 4: Sergeant Temakon may have lied to the Office of the Ombudsman that money raised for the fund was used for prisoners' medication, thus breaching Section 50 of the Ombudsman Act No.27 of 1998.
If during the course of an inquiry a person is found to be guilty of giving false or misleading evidence to the Ombudsman or an officer acting under the delegation of Ombudsman, that person may pay a fine of 100,000 vatu or face imprisonment for 6 months, or both. Sergeant Temakon told the Office of the Ombudsman that the money raised was used to pay for Mr Silas' medication, amounting to 7,500 vatu (refer Appendix A). Records from the Drug Store show that the money used to pay for the medication was committed through an LPO prepared by the Police, (LPO No. 306169 for 7,850 vatu as stated in Appendix E).
Recommendation 1: For disciplinary proceedings against Sergeant Temakon and those in custody of the Prison Project Fund, the Police Commissioner should exercise his special powers as provided under section 67 (1) of the Police Act CAP 105.
Recommendation 2: The Police Commissioner should remind police officers of their responsibilities and duties. This will assist officers in carrying out their duties in an upright and proper fashion.
Dated the 26th day of September 2003.
Hannington G. ALATOA
OMBUDSMAN OF THE REPUBLIC OF VANUATU
A Copy of Financial Report of Prison Project Fund
B Copy of Letter from Sergeant Temakon
C Copy of Letter from Asst. Superintendent Vake Rakau
D Copy of Letter from Ms Iren James
E Copy of LPO
F Copy of Bank Statement
G Copy of Letter from Ombudsman
H Copy of Interview Note
I Copy of Letter from Asst. Superintendent Vake Rakau
J Copy of Letter from Commissioner of Police
K Relevant laws, regulations and rules
L1 & L2 Copies of Sgt Temakon's responses to the Working Paper
M Copy of Ms James' reply to the Working Paper
N Copy of the NBV's response to the Working Paper
O Copy of Mr Shem's response to the Working Paper
P Copy of letter from Hon. Prime Minister in response to the Working Paper
APPENDIX K
RELEVANT LAWS, REGULATIONS AND RULES
EMPLOYMENT ACT [CAP 160]
FORCED OR COMPULSORY LABOUR
7. (2) The expression "forced or compulsory labour" in subsection (1) means all work or service which is extracted from any person under the threat of any penalty and for which that person has not offered himself voluntarily except-
(c) any work or service exacted from any person as a consequence of a conviction by a court:
Provided that such work or service shall be carried out under the supervision and control of a public authority and that no person shall be hired to, or placed at the disposal of, private individuals, companies or associations;
POLICE ACT [CAP 105]
DISCIPLINARY POWERS OF THE COMMISSION
67. (1) A charge of an offence against discipline alleged to have been committed by a senior officer shall be reported by the Commissioner without unnecessary delay to the Commission which shall inquire into the truth of the charge.
(2) The Commission, if it finds the charge proved, may impose on the defaulter 1 of the following punishments –
(a) dismissal from the Force;
(b) reduction in rank;
(c) loss of seniority;
(d) a fine not exceeding 15 days; or
(e) a reprimand.
The punishments prescribed by subsection (2) are sufficient in themselves and only 1 such punishment may be awarded for each offence against discipline.
SUBSIDIARY LEGISLATION
OFFENCES AGAINST DISCIPLINE
19. Any member of the Force who –
(a) is disrespectful in word, act or demeanour to a superior officer;
(b) willfully disobeys any lawful order;
(c) is guilty of drunkenness;
(d) renders himself unfit for duty through intoxication;
(e) drinks or solicits intoxicating liquor whilst on duty;
(f) enters or is in any place licensed for the sale of intoxicating liquor whilst on duty except in the execution of that duty;
(g) without cause fails to appear or appears late for duty;
(h) is guilty of cowardice;
(i) is found sleeping at his post, or leaves his post without leave or lawful excuse before he is regularly relieved except in pursuit
of an offender whom it is his duty to apprehend it;
(j) negligently allows the escape of any prisoner who is committed to his charge or whom it is his duty to guard;
(k) threatens, assaults, maltreats or neglects any person in his charge or in the custody of the Force;
(l) discharge any firearm without just cause or contrary to orders;
(m) sells, loses by neglect, makes away with, willfully damages or fails to report any damage to arms, ammunition, equipment, uniform
or other appointments supplied to him or any government property committed to his charge;
(n) is slovenly, inattentative, uncivil or quarrelsome;
(o) fails to keep his quarters or any other place under his control reasonably clean and tidy;
(p) parades for duty dirty or untidy in his person, arms, clothing or equipment;
(q) without due authority discloses or conveys any information concerning any investigation or any other matter with which he is concerned
in the course of his duties;
(r) malingers or feigns or willfully produces any disease or infirmity;
(s) incurs any debt which may embarrass him in his duties;
(t) breaks out of a police quarter, station or place in which he has been lawfully confined;
(u) makes any report which he knows to be false or inaccurate in some material particular or fails to disclose to his superior officer
facts which it is his duty so to disclose;
(v) is found in unauthorised possession of any police or other public property;
(w) uses improperly any police or other public property;
(x) ill-treats, bullies, or insults or inflicts any unauthorised punishment on a subordinate in rank;
(y) is guilty of any act, conduct, disorder or neglect which is declared by the Act or by rules made thereunder to be an offence against
discipline;
(z) does nay act or makes any omission likely to bring discredit upon the Force or is guilty of any act, conduct, disorder or neglect
to the prejudice of good order and discipline not elsewhere specified in these rules;
shall have committed an offence against discipline.
VANUATU POLICE FORCE
FORCE STANDING ORDERS
No.E.7
INDEBTEDNESS
1. It is a disciplinary offence for a Police Officer to incur debts beyond his means. Serious debt will be regarded as likely to impair the efficiency of a Police Officer and bring him and the Force into disrepute.
2. Indebtedness breeds corruption. No Police Officer can be regarded as reliable if he does not pay or is unable to pay his debts. Indebtedness is a bar to promotion and no officer who is seriously in debt can hope for advancement in the Force.
3. Whenever a claim for repayment for a debt incurred by a Police Officer is received, the complainant will be advised to take his own action if he so wishes. While no direct action can be taken by the Police authorities to force repayment of the debt, the officer concerned will be warned that disciplinary action may be taken against him if he fails to settle his debt within fourteen (e.g. a pay period) days.
4. Commanding Officer will report to the Commissioner without delay any Police Officer under their command against whom a Court Order for payment of debt is made, i.e. a judgement debtor in a civil Court. Disciplinary proceedings will invariably be instituted against any such officer but will not commence unless so directed by the Commissioner.
5. Senior Police Officers will not assist in the payment of a debt by any member of the Force. Likewise, the borrowing and lending of money, with or without interest, and any connection with any money lending transactions either between members of the Force of any rank or outside the Force is strictly forbidden.
6. Debts will not be deducted from salary for payment to creditors except whom specifically ordered by the Commissioner or by Order of the Court. Authority will normally only be given in respect of official debts and those of authorised police messes.
7. Except whom specifically authorised by the Commissioner of Police or an officer delegated by him, no member of the Force will be permitted to purchase any food, refreshment or any other item on credit from any Police Club, Police Canteen or Police Store. Payment in the form of a postdated cheque or other written promise to pay will not be accepted. Such cheques etc. will be refused at the time they are offered or returned to the sender with a covering letter.
8. Every Police Officer shall give a truthful and accurate declaration of his indebtedness in writing when called upon to do so by a Senior Officer. Any member of the Force who makes a false declaration of indebtedness shall be liable to dismissal from the Force.
9. All disciplinary proceedings in respect of indebtedness, including false declarations of indebtedness, shall be referred to the Commissioner of Police in accordance with section 58 of the Police Regulation, 1980, as amended.
Issued 15th April 1986
PENAL CODE [CAP 135]
THEFT DEFINED
122. (1)A person commits theft who, without the consent of the owner, fraudulently and without a claim of right made in good faith,
takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner
thereof
OMBUDSMAN ACT NO.27 OF 1998
GIVING FALSE EVIDENCE
50. A person is guilty of an offence if the person gives false or misleading evidence in any enquiry being conducted by the Ombudsman or an officer acting under a delegation made under section 14.
Penalty: Vt 100,000 or imprisonment for 6 months or both.
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