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2007 Assessment

Vanuatu: Integrity Indicators Scorecard

Vanuatu: Integrity Scorecard Report > Sub-Category: Executive Accountability
Indicators		Score
23	In law, can citizens sue the government for infringement of their civil rights?	100
24	Can the chief executive be held accountable for his/her actions?	88
25	Is the executive leadership subject to criminal proceedings?	100
26	Are there regulations governing conflicts of interest by the executive branch?	50
27	Can citizens access the asset disclosure records of the heads of state and government?	58
28	In practice, official government functions are kept separate and distinct from the functions of the ruling political party.	50

Indicator and sub-Indicator Details

In law, can citizens sue the government for infringement of their civil rights?

23: In law, can citizens sue the government for infringement of their civil rights?

Score:

YES

Comments:

References: Example, Infringement of the Constitutional Rights (This was given by manager, Insolvency Legal and Compliance Dept.) Constitutional provision - "FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL" 5. (1) The Republic of Vanuatu recognises, that, subject to any restrictions imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the grounds of race, place of origin, religious or traditional beliefs, political opinions, language or sex but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health. (www.paclii.org/vu/legis/consol_act/cotrov406)

Peer Review Comments: The Constitution does not specifically protect the rights of the aged or homosexuals.

Can the chief executive be held accountable for his/her actions?

24a: In practice, the chief executive gives reasons for his/her policy decisions.

Score:

100

Comments: "The chief executive must give reasons for his/her policy decisions. He/she provides the reasons on the council papers," said State Law Legal Officer Tom Botleng. This is not always practiced.

References: Manager, Insolvency, Legal and Compliance Dept. State Law Legal Officer Tom Botleng

24b: In law, the judiciary can review the actions of the executive.

Score:

YES

Comments:

References: Vanuatu Constitution, Article 47. (1)

24c: In practice, when necessary, the judiciary reviews the actions of the executive.

Score:

100

Comments: This may be so if a civil action is commenced in court.

References: Manager, Insolvency, Legal and Compliance Dept.

Peer Review Comments: NIS report notes: In the past few years the Supreme Court has made a number of decisions overturning actions by parliamentarians. The Supreme Court was very involved in the parliamentary crisis of 2001, when the speaker refused to convene Parliament in order to allow a vote of 'no confidence to proceed. (Jowitt 2002) Its decisions in this matter clearly indicate that it is prepared to act as an effective check on the executive.

24d: In practice, the chief executive limits the use of executive orders for establishing new regulations, policies, or government practices.

Score:

100

Comments: Usually regulations and orders are made by a minister.

References: Manager, Insolvency, Legal and Compliance Dept. www.paclii.org/vu/legis/consol_act/cotrov406

Is the executive leadership subject to criminal proceedings?

25a: In law, the heads of state and government can be prosecuted for crimes they commit.

Score:

YES

Comments: An example is when former Prime Minister Barak Sope was prosecuted and sent to jail.

References: Manager, Insolvency, Legal and Compliance Dept. www.paclii.org/vu/legis/consol_act/cotrov406

Peer Review Comments: Sections 37-38 of the Leadership Code Act 1998 also allow the heads of state and government to be prosecuted for crimes they commit (where breaches of the Leadership Code constitute criminal misconduct). The president does not possess unlimited sovereign immunity in Vanuatu and does not have to be removed from office or impeached before a prosecution can take place.

Peer Review Comments: Yes they can be prosecuted, but it is not uncommon for the president to pardon those who have been found guilty of crimes and imprisoned. These pardons then enable the officials to stand for election or office again. One example of a case like this is Barak Sope.

25b: In law, ministerial-level officials can be prosecuted for crimes they commit.

Score:

YES

Comments:

References: Manager, Insolvency, Legal and Compliance Dept.

CONDUCT OF LEADERS 66. (1) Any person defined as a leader in Article 67 has a duty to conduct himself in such a way, both in his public and private life, so as not to- (a) place himself in a position in which he has or could have a conflict of interests or in which the fair exercise of his public or official duties might be compromised; (b) demean his office or position; (c) allow his integrity to be called into question; or (d) endanger or diminish respect for and confidence in the integrity of the Government of the Republic of Vanuatu. (2) In particular, a leader shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subarticle (1)

www.paclii.org/vu/legis/consol_act/cotrov406

Are there regulations governing conflicts of interest by the executive branch?

26a: In law, the heads of state and government are required to file a regular asset disclosure form.

Score:

YES

Comments: MPs and ministers are required to file with the clerk of Parliament every year. (Comment from Mr. Loughman Kiel of the Insolvency and Compliance Dept.)

References: Leadership Code Act, Section 31 (1), (2), (3), (4) & (5)

26b: In law, ministerial-level officials are required to file a regular asset disclosure form.

Score:

YES

Comments:

References: Leadership Code Act, Section 31 (1), (2), (3), (4) & (5)

26c: In law, there are regulations governing gifts and hospitality offered to members of the executive branch.

Score:

YES

Comments:

References: Leadership Code Act, Section 22 (Undue Influence); Section 23 (Bribery) and Section 24 (Conflict of Interest)

Peer Review Comments: In law, but in practice all gifts may not be declared and/or not declared in a timely manner.

26d: In law, there are requirements for the independent auditing of the executive branch asset disclosure forms (defined here as ministers and heads of state and government).

Score:

YES

Comments: There is no specific requirement to conduct an independent audit; this is only done when a matter is reported.

References: Leadership Code Act, Section 34 (1) (a) & (b) Ombudsman Act, Sections 15 & 16

26e: In law, there are restrictions on heads of state and government and ministers entering the private sector after leaving the government.

Score:

YES

Comments: There is no law that prevents public service officials from entering the private sector.

References: Public Service Act

26f: In practice, the regulations restricting post-government private sector employment for heads of state and government and ministers are effective.

Score:

100

Comments: The legal advisor said he is not aware of any such law in Vanuatu.

References: Manager, Insolvency, Legal and Compliance Dept.

Peer Review Comments: There are no regulations restricting post-government private sector employment for heads of state and government and ministers in Vanuatu.

26g: In practice, the regulations governing gifts and hospitality offered to members of the executive branch are effective.

Score:

100

Comments: "It's just not accepted," said Mr. Loughman.

References: Manager, Insolvency, Legal and Compliance Dept., Mr. Loughman Kiel

Peer Review Comments: NIS report found all ministers were required to provide an annual report, but some are not filing these. It also says there is no legal requirement for the gift register to be maintained.

Peer Review Comments: There are incidences of ministers accepting offers of hospitality and gifts, particularly hotel accommodation, cars, trucks and alcohol.

Peer Review Comments: There are frequent stories of government officials and MPs receiving gifts and hospitality.

26h: In practice, executive branch asset disclosures (defined here as ministers and above) are audited.

Score:

100

Comments: Not always audited.

References: Mr. Loughman Kiel, Manager, Insolvency, Legal and Compliance Dept.

Can citizens access the asset disclosure records of the heads of state and government?

27a: In law, citizens can access the asset disclosure records of the heads of state and government.

Score:

YES

Comments:

References: Mr. Loughman Kiel, Manager, Insolvency, Legal and Compliance Dept. Leadership Code Act

Peer Review Comments: Also would be costly and time-consuming.

Peer Review Comments: In law, citizens can access the asset disclosure records of the heads of state and government as per s. 32 of the Leadership Code Act which states that:

"PUBLICATION OF ANNUAL RETURNS 32(1) The Clerk must ensure that : (a) annual returns filed by the leaders; and (b) a list of leaders who have failed to give the Clerk an annual return, are published in the Gazette, by 14 March in each year. (2) The list must set out the leader's name, and the position he or she holds."

The Gazette is a public available document in law.

27b: In practice, citizens can access the asset disclosure records of the heads of state and government within a reasonable time period.

Score:

100

Comments: Access is quite difficult.

References: Manager, Insolvency, Legal and Compliance Dept., Loughman Kiel

Peer Review Comments: Do not agree with the comment "No, citizens do not have access." Citizens do have access through the Gazette as per s. 32 of the Leadership Code Act. However, filing of returns with the Clerk of Parliament is often delayed and publication of the Gazette can be delayed for many months.

27c: In practice, citizens can access the asset disclosure records of the heads of state and government at a reasonable cost.

Score:

100

Comments: Accessing such records may require traveling to the capital, creating a burden and costs on citizens.

References: Manager, Insolvency, Legal and Compliance Dept.

Peer Review Comments: The Government Gazette, where the annual asset disclosure records of the heads of state and government are published is available at a reasonable cost. However, accessing it may require a visit to a specific office, such as to the office of the Clerk of Parliament in the capital Port Vila, restricting its availability in remote and rural island areas of Vanuatu.

In practice, official government functions are kept separate and distinct from the functions of the ruling political party.

28: In practice, official government functions are kept separate and distinct from the functions of the ruling political party.

Score:

100

Comments: Although the situation has improved, the use of government assets for political purposes remains a challenge.

References: Manager, Insolvency, Legal and Compliance Dept. Daily Post Chief Editor Kierry Mannaseh Lae Sakita, Vango (NGO)

Peer Review Comments: Civil servants can be political appointments, some are in influential positions.

Peer Review Comments: There is a degree of political interference from the ruling political party or coalitions in public service appointments and the use of government vehicles on campaign trips and the use of government funds for party purposes does occasionally occur, though this has decreased since the Comprehensive Reform Program was implemented in 1997.