MPs with Vacated Seats say “The Supreme Court Shall Decide”


29 October 2021 Apia Samoa. Two Independent Members of Parliament, Olo Fiti Afoa Vaai and Faumuina Leatinuu Wayne Fong have each received letters from the Speaker of the House advising that their parliamentary seats have been deemed vacant, quoting sections of the Samoa Electoral Act intended to prohibit MPs from crossing the floor.

Letters from Hon Speaker of the House Leaupepe Toleafoa Faafisi.

In separate letters to each MP, Hon Leaupepe Taimaaiono Toleafoa Faasisi says Olo and Faumuina have breached s140(4) of the Electoral Act by failing to remain as independent members for the entire parliamentary term.

Electoral Act Section 140(4): A Member elected as an independent Member who takes oath of allegiance as an independent Member must remain as an independent Member for the Parliamentary term. 

At the close of candiate nominations last Friday, Salega No2 MP, Olo Fiti Vaai and Faleata No2 MP, Leatinu’u Wayne Fong both registered as FAST candidates for Samoa’s upcoming General Elections scheduled for 9 April 2021.

The current 5-year parliamentary term officially ends at the dissolution of Parliament in January 2021.

Until recent amendments, Parliament would dissolve before candidate nominations closed, allowing sitting MPs to switch allegiance between terms and not during a parliamentary term.

One of the few opposition MPs in Samoa’s Parliament, Olo Fiti Vaai says the newly enacted laws and recently imposed legal requirements do not allow an Independent MP to choose a political party for a future term.

He says the laws, as they are written and applied, placed him in the middle of a rock and a hard place.

“I had to choose” – Olo Fiti Vaai.

“If I choose to not run as a FAST candidate in the next election, then I would remain as an Independent and register as such… however, if I choose to register under FAST for the next election, then this dilemma arises, where I lose my seat,” said Olo.

He adds that it is important to follow the legal process and believes that the Constitution safeguards Members of Parliament, by giving the Supreme Court the power to decide.

“The Speaker has quoted s46 of the Constitution, but we are coming from s47 where right of a person to remain a Member of Parliament, is determined only by the Supreme Court,” says Olo.

Samoa Constitution Section 47. Decisions on questions as to membership: “All questions that may arise as to the right of any person to be or to remain a Member of Parliament shall be referred to and determined by the Supreme Court.

Olo maintains that he has kept the oath he took in 2016, to remain an independent member for this parliamentary term, however, the timing of candidate registrations has put them into this position.

Faumuina Leatinuu Wayne Fong says they had both expected this decision, and the matter is now with their lawyers.

Faumuina says he believes the intention of the current legislation, is to stop MPs from crossing the floor, or switching party allegiance during the parliamentary term.. “and that is not what is happening here..”.

Faumuina Leatinuu Wayne Fong says this has not come as a surprise to them.

“This Parliamentary term has basically come to an end, and we are now pledging our allegiance for the next parliamentary term,” said Faumuina.

Faumuina says this gap only exists because candidate nominations now close three months before the dissolution of Parliament.

“We had no choice but to honestly declare that for the next parliamentary term, we are choosing to run as members of FAST”, says Faumuima.

In his letter, the Speaker of the House states that he must act in accordance with S142(1) of the Electoral Act 2019, and Parliamentary Standing Orders 21(6), that requires him to charge the Independent MPs with vacating their seats for failing to remain as Independents for the Parliamentary Term.

Electoral Act Section 141(2): A seat of a Member becomes vacant if: (a) a Member who becomes a Member according to section 140, and that Member resigns from a political Party to join another political Party during the Parliamentary term; or (b) a Member does not comply with section 140(4). 

The Speaker also states that he has received confirmation from Electoral Commissioner Faimalomatumua Mathew Lemisio that the two Independent MPs have officially registered as FAST members for the upcoming elections.

Letter from Speaker of the House.

Sina Retzlaff