Samoa’s Electoral Act Challenged in Supreme Court

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02 September 2020, Mulinuu Apia Samoa. Several matai took the stand before Justice Tafaoimalo Leilani Tuala-Warren in the Supreme Court of Samoa to explain how certain provisions of the Electoral Act have affected their eligibility to stand as candidates in the 2021 general elections.

Lawyer Tuala Iosefo Ponifasio and businessman Papalii Panoa Tavita Moala have filed separate applications to the Supreme Court contending that the Electoral Act 2019 is unconstitutional and discriminatory.

Fuimaono Sarona Rimoni Ponifasio stands for Tuala, while Mauga Precious Chang is representing Papalii. Attorney General Savalenoa Mareva Betham-Annandale is leading the team responding to the applications on behalf of the Electoral Commissioner.

Fuimaono Sarona and Mauga Precious outside court.

Tuala and Papalii both took the stand on Monday, supported by five other matai who gave evidence in support of their applications.

Samoa’s Electoral Act requires all candidates to render a service to the community through the village council. That service, known as the monotaga is considered served when a matai actively participates as a member of the village council. Samoa’s election rules requires all candidates to have rendered that service for a minimum period of 3 years before they are eligible to run for that village.

Papalii Panoa Moala testified that he has been unable to fulfill the monotaga requirement in his village of Faleula, because he had been ousted by village matai in 2018.

Papalii Panoa Moala outside Court.

Papalii told the Court that he was asked to leave during one of Faleula’s village meetings for no reason, and since that time, he has been unable to render service or fulfill his monotaga faale-nuu to the village, because they would not accept anything from him.

Papalii told the Court that the 2019 amendment which  removed religious service from the definition of monotaga, has affected his eligibility because notwithstanding village politics, he remains an active member of his community through his service to the Church – monotaga faale-Ekalesia. 

“Lau afioga, o tulaga ia ua alai ona ou oo mai.. afai la ua na o le monotaga faalenuu…ua le mafai ona fai sa’u monotaga, ona o lea ua tuli a’u ma le nu’u;

“A avatu sa’u monotaga ae te’ena mai. O lona uiga, a faatino le tulafono lea, ua lē mafai ona ou tauva i lo’u aia tatau”.

In relation to the monotaga, the Electoral Act 2019 provides an exemption for sitting members of Parliament, running in “newly formed electorates”.  According to the Electoral Commissioner, this exemption was only intended for Urban seat MPs who did not previously need to take up matai titles in their constituencies.

Papalii Panoa said the nature of the law is discriminatory, to allow an exemption for sitting members and not intending members from newly formed constituencies.

Papalii told the Court that he should not be unfairly penalised when his monotaga cannot be rendered for reasons beyond his control.

Six other matais including former Member of Parliament Afemata Palusalue Faapo II took the stand.

Afemata Palusalue Faapo II outside Court.

Palusalue’s case is about being able to run the 2021 election under his Afemata title bestowed a year ago.

The former leader of the Tautua party has served his village of Sataoa for decades under the Palusalue title. He said his village now insists that he runs the election using the Afemata title, because it is a paramount chiefly title in Sataoa.

Asked by Justice Leilani Tuala-Warren what the decision would be in the case of Afemata Palusalue, the Electoral Commissioner responded that he would be eligible to run for Sataoa using his Palusalue title, but not his Afemata title because he has not yet served three years in the village under that title.

Justice Tuala-Warren said she could not see where the Electoral Act ties the 3 year monotaga requirement to the matai title intended to be used by the candidate.

“So if a village wants the candidate to use the Afemata title, because it would have a higher standing within the district, and villages are very proud of their higher status titles, you would disqualify that candidate?”, asked Tafaoimalo.

“No the nomination would be rejected”, responded the Electoral Commissioner.

“Yes, a rejected nomination is disqualifying him from running..”, said Justice Tafaoimalo.

Similar to Afemata’s case is that of another matai who took the stand on the first day. Aiono Tuala Tofilau Meapelo Frost from Fasitoo-Uta told the Court that he has been serving his monotaga in Fasitoo-Uta under his Tofilau title for more than 10 years, but was bestowed the Aiono title last year.

Others who gave evidence on the same issue of eligibility under the monotaga were Feagaimaalii Bruce Utaileuo, Panoa Peseta Ah Kuoi, and Feutagaiimealelei Osovale Brown.

The hearing before Justice Leilani Tuala-Warren goes into its third day on Thursday, with closing submissions by Counsels.


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