Samoa’s Electoral Act to be Amended following Legal Challenge in Court

Afemata Palusalue Faapo II, Papalii Panoa Tavita Moala, and Aiono Tofilau Meapelo Frost in Court. "The look on our faces tells you, we won the Court case".

07 September 2020, Mulinuu, Apia Samoa. Certain provisions of Samoa’s Electoral Act are to be redrafted and amended following a legal challenge brought by potential candidates who claimed the legislation was unconstitutional and discriminatory.

Lawyer Tuala Iosefo Ponifasio and businessman Papalii Panoa Tavita Moala had filed applications to the Supreme Court contending that certain eligibility provisions of the Electoral Act unfairly affected their chances to run for Office in the April 2021 general elections.

Attorney General Savalenoa Mareva Betham-Annandale responded to the applications on behalf of the Electoral Commissioner while Fuimaono Sarona Rimoni Ponifasio and Mauga Precious Chang represented Tuala and Papalii respectively.

Counsels for the Applicants, Fuimaono Sarona Rimoni Ponifasio and Mauga Precious Chang.

The matter was heard in the Supreme Court of Samoa last week before Justice Tafaoimalo Leilani Tuala-Warren. Counsels were supposed to have delivered closing statements on Thursday morning, however, deliberations began in the Judge’s Chambers instead. After several days of negotiations between parties, Justice Tafaoimalo delivered an Order on Monday 7 September accepting the withdrawal of applications subject to the respondent amending certain provisions of the Electoral Act.

“By consent of the Applicants and Respondent, I make the following orders,” said Justice Tuala-Warren.

“The Applicants will withdraw their applications subject to the following..

“That the Respondents will carry out amendments to the relevant provisions of the Electoral Act 2019 in accordance to the Memorandum attached to this order.”

Justice Tafaoimalo then went on to say that the terms of the memorandum between parties would remained confidential until the amendments are made.

Outside Court however, an elated Papalii Panoa Tavita Moala told the media that they have essentially won the case.

“You have heard what the Judge has said today, that the Government has agreed to withdraw their opposition to our claim; meaning.., we have won the case.”

Papalii reiterated the Order made by the Judge to not divulge any information about the proposed amendments, but he did say he was hopeful that all concerns raised would be  addressed by Government.

“The appropriate amendments.. that is the business of the Government and we are not privileged to say anything about that..;

“All we are hoping for is for Government to address the discriminatory nature of the legislation…;

Papalii continued..”Under article 15 of the Constitution, everybody is equal under the Law, and secondly, there is no room for discriminatory legislation in Samoa.”

Unique to Samoa’s election process is the requirement for all candidates to hold a registered chiefly matai title within the electoral constituency for which they want to run. Furthermore the Electoral Act requires all candidates to render a service to the community through the village council.

According to the current wording of the Act, that service known as the monotaga is rendered when a matai actively participates as a member of the village council.

Samoa’s election rules further requires all candidates to have rendered that service for a minimum period of 3 years before they are eligible to run for that village.

During the court hearing last week, several matai were called to the stand by the applicants’ lawyers, to explain their claims that the legislation was discriminatory in view of an exemption clause to the monotaga, afforded only to sitting members of Parliament, running in newly formed electorates.

The Electoral Commissioner had told the Court last week that this exemption was only intended for Urban seat MPs who did not previously need to take up matai titles in their constituencies.

Through their legal counsels the applicants had argued that the law should be applied to all candidates and not just sitting MPs.

Outside Court after the ruling was delivered, former leader of the Tautua Party Afemata Palusalue Faapo II told the media that he was bestowed a matai title 32 years ago, and has been serving his village monotaga ever since.

“I was given a matai title in 1988, so from 1988 up to now, I have been doing my monotaga, not only in the village but in the Church as well,” said Afemata.

Afemata Palusalue Faapo II outside Court.

With Samoa’s general elections now only seven months away, Papalii Panoa says Government must put through the anticipated amendments to the Electoral Act expeditiously.

“I believe the Government cannot delay this any further..otherwise, it’s either we have to defer the nominations, or, defer the election.”

Papalii adds that he is thankful to God for giving them the courage to tell the Government that their legislation is unconstitutional.