38. Is there a ban on vote buying?

Source

Bribery:
(1) In this section, “voter” includes a person who has or claims to have a right to vote.
(2) A person commits the offence of bribery who, directly or indirectly in person or by any other person on his or her behalf either before, during or after voting:

(a) gives any money or obtains an office to or for -
(i) a voter;
(ii) any other person on behalf of a voter; or
(iii) any other person, in order to induce a voter to vote or refrain from voting; or
(b) does any act as a result of a voter having voted or refrained from voting; or
(c) offers a gift to a person in order to induce that person to obtain, or endeavour to obtain, the return of a person at an election or the vote of a voter; or
(d) in receipt of a gift whether tangible or not, obtains, engages, promises, or attempts to obtain, the return of a person at an election or the vote of a voter; or
(e) advances or pays or causes to be paid any money to or for the use of any other person with the intent that that money is to be expended in bribery at an election; or
(f) knowingly pays or causes to be paid any money to a person in discharge or repayment of any money wholly or in part spent on bribery at an election.
(3) For the purposes of this section:
(a) references to giving money includes references to giving, lending, agreeing to give or lend, offering, promising, or promising to obtain or endeavour to obtain, any money or valuable consideration;
(b) references to obtaining an office includes references to giving, procuring, agreeing to give or procure or to endeavour to procure, an office, place, or employment.
(4) Subsections (5) and (6) do not extend to any money paid or agreed to be paid for or on account of any legal expenses incurred in good faith at or for an election.
(5) A voter commits the offence of bribery if before or during an election he or she directly or indirectly, by himself or herself or by any other person on his or her behalf, receives, or agrees or contracts for, any money, gift, loan, or valuable consideration, office, place, or employment for himself or herself or for any other person for voting or agreeing to vote or for refraining or agreeing to refrain from voting.
(6) A person commits the offence of bribery if after an election he or she directly or indirectly, by himself or herself or by any other person on his or her behalf, receives any money or valuable consideration on account of a person having voted or refrained from voting or having induced any other person to vote or refrain from voting.

Source: Article 96 , Electoral Act No 7 of 2019

Treating:
(1) A person commits the offence of treating who in person or by any other person on that person’s behalf, either before, during, or after an election, directly or indirectly gives or provides, or pays wholly or in part:
(a) the expense of giving or providing any food, drink, entertainment, or provision to or for a person -
(i) for the purpose of corruptly influencing that person or any other person to vote or refrain from voting; or
(ii) for the purpose of corruptly procuring himself or herself to be elected; or
(iii) on account of that person or any other person having voted or refrained from voting, or being about to vote or refrain from voting; or
(b) transportation to and from -
(i) the Office of the Electoral Commission or any other place, of voters for the purpose of carrying out registration for such voters; or
(ii) a polling booth of a voter for the purpose of that voter casting his or her vote.

2) A voter who corruptly accepts or takes any such food, drink, entertainment, or provision also commits the offence of treating.

Source: Article 97, Electoral Act No 7 of 2019

Illegal activities during period of election:
(1) In this section, “period of election” means the period during an election or by-election, commencing on the day after the Commissioner gives public notice of polling day and ending at the close of the Poll on polling day.
(2) A candidate who during a period of election directly or indirectly, in person or through another person gives food, beverage, money or other valuable to a voter at a ceremony or activity is guilty of an illegal practice.
(3) A voter who during a period of election obtains or attempts to obtain, directly or indirectly in person or through a person, any food, beverage, money or other valuable from a candidate for election, is guilty of an illegal practice.

(4) Despite subsections (2) and (3) it is not an illegal practice if the act referred to under those subsections is carried out at a funeral.

Source: Article 100, Electoral Act No 7 2019

Conduct of O’o and Momoli:
Despite this Act, the presentation of the traditional O’o and Momoli by a Candidate or Member or a Candidate’s or Member’s representative respectively to a village or a Constituency is not considered as treating, bribery or an illegal or corrupt activity if it is presented within two (2) years after the date of the declaration of results of a poll under section 84.

Source: Article 101, Electoral Act No 7 of 2019

Tautua fa’aauau:
(1) Despite provisions of this Act, the conduct of tautua fa’aauau, by a Member or his or her representative, a Candidate or his or her representative is not an offence under this Part.
(2) “Tautua fa’aauau” is:
(a) an action that is culturally appropriate and expected and includes a service normally provided by a person; or
(b) not excessive in circumstances; or
(c) service to faifeau; or
(d) not a O’o and momoli;
(3) With the exception of subsection (2)(c), tautua fa’aauau must not be conducted within 90 days before polling day.

(4) A person in breach of subsection (3) commits an offence if a person knowingly commits an act of tautua fa’aauau within 90 days before polling day, and is liable upon conviction to a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding two (2) years imprisonment.

Source: Article 102, Electoral Act No 7 of 2019

While vote buying is illegal under provisions banning bribery and treating, there are some exceptions for funerals and for culturally appropriate gifts made during specified time periods: for O'o and Momoli for gifts made within the period of 2 years from the declaration of the election result; and for Tautua fa'aauau the gift must not be excessive and generally cannot be made within the period of 90 days before election day.