By-election bagarap?

The High Court has found that Allan Kemakeza was ineligible to stand in the by-election for Savo and Russells that was held on 29 October 2009.  Reports on the decision are available from the Solomon Star, Radio NZ and the Australia Network.

Kemakeza was forced to vacate his seat after he received a jail sentence of 18 months (of which 12 months was suspended). Kemakeza was convicted in November 2007 of ‘demanding with menace, intimidation and larceny’ after he had ordered former militants in 2002 to raid and seize vehicles belonging to Sol Law. Kemakeza was originally sentenced in December 2007 to five months imprisonment but on appeal, this was increased to 18 months, with two-thirds of the sentence suspended.

Kemakeza completed his prison sentence at the end of 2008, in time to celebrate new year’s eve, but presumably he continued to serve his suspended sentence for the following year. My impression is that the High Court judged he was disqualified from standing in the October 2009 by-election because he was still serving this sentence at the time.

I haven’t read the judgment from Justice Edwin Goldsbrough of the High Court but I imagine that it is based on Section 49 of the Constitution which states that ‘No person shall be qualified for election as a member of Parliament who … is under a sentence of imprisonment for a term of, or exceeding, six months’. (The relevant provisions of Sections 49, 50 and 51 are reproduced below.)

Presumably Justice Goldsbrough concluded that a suspended sentence is still a sentence and therefore found that Kemakeza was disqualified. Of course, as the Solomon Star report points out, Kemakeza’s 12-month suspended sentence lapsed in December 2009 which means that he is eligible to contest the upcoming national elections.

Appendix:

As mentioned above, disqualification for election to Parliament is governed by Sections 49, 50 and 51 of the Constitution. Here are the relevant provisions:

Disqualifications from membership

49.-(1) No person shall be qualified for election as a member of Parliament who -

(e) is under sentence of death imposed on him by a court in any part of the world, or is under a sentence of imprisonment (by whatever name called) for a term of, or exceeding, six months, other than a sentence in lieu of a fine, but including a suspended sentence, imposed on him by such a court or substituted by competent authority for some other sentence imposed on him by such a court;

Vacation of seats by members

50. A member of Parliament shall vacate his seat -

(f) if any circumstance arises that, if he were not a member of Parliament, would cause him to be disqualified from election thereto by virtue of paragraph (a), (b), (d), (f) or (g) of subsection (1) of the preceding section; or

(g) in the circumstances mentioned in the next following section.

Vacation of seat on sentence, etc.

51.-(1) Subject to the provisions of this section, if a member of Parliament is sentenced by a court in any part of the world to death or to imprisonment (by whatever name called) for a term of, or exceeding, six months, including a suspended sentence, he shall forthwith cease to perform his functions as a member of Parliament, and his seat in Parliament shall become vacant at the expiration of a period of thirty days thereafter:

Provided that the Speaker (or, if the office of Speaker is vacant or he is for any reason unable to perform the functions of his office, the Deputy Speaker) may, at the request of the member, from time to time extend that period for thirty days to enable the member to pursue any appeal in respect of his conviction or sentence so however that extensions of time exceeding in the aggregate one hundred and fifty days shall not be given without the approval of Parliament signified by resolution.

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