Ambiguous Law Leaves Women Candidates Fighting for the Right to Enter Parliament

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While Samoa and the world celebrated International Women’s Day (IWD) on the 8th of March 2022, lawyers representing aspiring women parliamentarians who had competed in the April 2021 general election and subsequent by-election in November, were in the Supreme Court of Samoa, seeking clarification for an ambiguously worded constitutional amendment that was meant to support women MPs.

Chief Justice Satiu Simativa Perese has set down this Thursday 10 March 2022 for a full hearing to decide on two applications relating to the swearing-in of additional women MPs into Samoa’s Parliament, as allowed by the much debated Article 44 of the country’s Constitution.

The first application is by two HRPP candidates, Aliimalemanu Alofa Tuuau and Faagasealii Sapoa Feagiai against the Speaker of the House Papaplii Li’o Taeu Masepau for setting aside their swearing-in as Members of Parliament. Both were appointed, albeit a little too early, by a Warrant of Election signed by the Head of State and issued by the Office of the Electoral Commissioner last November.

Their appointments were in line with the application of Article 44 by the Office of the Electoral Commission (OEC) where the candidate with the highest number of votes, calculated by percentage, are appointed as additional seats in parliament to ensure the 10% minimum set by the Constitution of Samoa.

A second application before the Courts is filed by Toomata Norah Leota of the FAST party, who had competed against HRPP’s Deputy Leader Hon Fonotoe Nuafesili Pierre Lauofo for the Anoamaa 2 seat. Represented by former Attorney General Taulapapa Brenda Heather-Latu, Toomata is seeking the Court’s clarification on a number of anomalies in the wording of Article 44. Toomata’s application names the OEC, Aliimalemanu, Faagasealii, HRPP and the Speaker as respondents.

Representing Hon Papalii Lio Taeu Masepau, counsel Unasa Leilani Tamati stated that the Speaker’s position is that he cannot swear in Aliimalemanu and Faagasealii until such time as the Court has made a decision on the ambiguities raised by Toomata Norah Leota.

“The Honorable Speaker cannot swear in people unless they are qualified, and it would appear that Mrs Leota’s application would question the qualification of the applicants to be additional members,” stated Unasa.

His Honor Satiu Simativa Perese decided the Court would deal with the application by Aliimalelanu and Faagasealii first, and asked Counsels to file all submissions by 3pm Wednesday for a 10am Thursday morning hearing.

Former Attorney General Tuatagaloa Aumua Ming Leung Wai is representing the HRPP party, Aliimalemanu and Faagasealii; while Ms Muriel Lui is representing the FAST party in what is expected to be the last of Court matters relating to Samoa’s April 2021 general elections.

The 34th Vailima International Marist 7s is on the weekend of 25-26 March 2022.
What is in the Constitution of Samoa, Article 44?
“Highest Number of Votes”

Section 44(1)(B)(b) states that if less than the prescribed number of women candidates are
elected… the remaining prescribed number of women candidates with the highest number of votes shall become additional MPs.

Extract: Article 44 (1) (B)
Highest Number of Votes Defined

However, later under Section 44(1)(5) it states, “Highest number of votes” means the percentage of the total valid votes in a constituency polled by a woman candidate.

Extract: Article 44(5)

The drafters do not refer to how decimal places within the percentages are dealt with, but instead, add a clause for when two or more candidates have an equal number of votes. 

It gives as a solution for such a scenario:  “..the additional Member shall be selected by lot before the Electoral Commissioner with the presence of the candidates or their authorised representatives and at least two (2) police officers”. 

Further, it is not clear if the scenario of having “an equal number of votes” refers to the pure number of votes, or the calculated percentage of votes.

The Percentages

The application of percentages to decide the additional woman MP is not new for Samoa.

It was applied after the 2016 general election, when Faaulusau Rosa Duffy Stowers was appointed Samoa’s 5th woman MP taking Samoa’s Parliament from 49 to 50 seats.

She had recorded the highest percentage of women candidates.

Following the 2021 general elections and November by-elections, HRPP’s Aliimalemanu Alofa Tuuau secured 40.03% (464 out of 1159), Faagasealii: 642/1788 x 100 = 35.91% rounded to the nearest tenth, while Toomata Norah Leota of FAST secured 780 out of 2200 or 35.45%.

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