Has Samoa Weathered a Constitutional Storm and Reached a Constitutional Compromise Between Tradition and Democratic Government?

Sue Farran

Newcastle University

The Pacific Island state of Samoa (formerly Western Samoa) is currently facing a constitutional crisis. Located in the southern Pacific Ocean between Hawaii and New Zealand, with a population around 200,000, the islands of Western Samoa were annexed by Germany in 1899. In 1914, the country was brought under the administration of New Zealand. Western Samoa gained independence in 1962 (and through a constitutional amendment officially changed its name to Samoa in 1997). The current situation in Samoa presents an interesting post-colonial conundrum. The 1962 Constitution is a hybrid, integrating aspects of a Westminster model with traditional status-based Samoan governance. The principles underpinning this Constitution are under pressure. Since elections on 9 April 2021, no government has been formed. Part of the problem lies with trying to accommodate traditional Samoan governance - the Fa’a Sāmoa - within a democratic model which stresses the importance of the separation of powers. The question is thus whether the Fa’a Sāmoa and 21st century understandings of democracy are compatible.

In this post, I will outline how the current situation has arisen and argue that the key determinant of whether the impasse can be resolved constitutionally will be whether the constitutional framework provides sufficient flexibility to adapt to contemporary expectations.

The current impasse has arisen because in April 2021 the Human Rights Protection Party (HRPP), which had been in power for nearly 40 years, found itself facing electoral defeat by a new party, Fa’atuaatua I le Atua Samoa ua Tasi (FAST), led by Fiame Naomi Matafu. Not only would this mark a major change in government, but also the possibility that the Prime Minister would be a woman for the first time in Samoan history. FAST, however, had the narrowest of majorities – one seat. Unwilling to accept defeat, the caretaker Prime Minister Tuila’epa Sailele Malielegaoi did two things. 

First, he advised the Head of State to revoke the election results and call for a new election despite opinion indicating that the Head of State has no such power. Secondly, he invoked a recent amendment to the Samoan Constitution which provides that 10% of Members of Parliament must be women - a reserved quota which positively discriminates in favour of women. Five women had in fact been elected to the 51-member house on 9 April, comprising 9.8% of members. He then instructed the Electoral Commissioner – in principle an independent party but like most civil servants appointed by the former HRPP government – to nominate a further HRPP female candidate to make up the 10% of parliamentary seats. This nomination was challenged by FAST. The Supreme Court ruled that the 10% quota meant at least 5 female MPs were required. On appeal by HRPP, the Court of Appeal ruled that 10% meant at least 6 female MPs were required, but no additional female could be appointed until the Court had ruled on a number of election challenges relevant to the gender balance. Both parties claim that the Court of Appeal decision supports them: HRPP because the decision favours six not five female MPs, and FAST because any additional candidate cannot be nominated immediately. In the interim, the caretaker Prime Minister claims that the HRPP is the legal custodian of the government – ignoring the constitutional convention that on dissolution of Parliament before an election all MPs lose their seats.

On 17 May, the Supreme Court ruled that FAST had a majority to form a government, rejecting the Head of State’s decision to call a second election. Initially the Head of State appeared to comply with this, calling for Parliament to be convened on 24 May 2021. The next day however, he backtracked. 

The Constitution of Samoa provides that Parliament must meet no later than 45 days after the election. On 24 May – the 45th day after the 9 April election – Fiame and members of the FAST party, accompanied by the Chief Justice of Samoa, approached the Parliament building. It was locked. Undeterred, Fiame and the FAST party adjourned to a tent erected on the lawns of Parliament house and held a swearing in ceremony. Neither the Chief Justice nor the Head of State were present but the former Head of State and several traditional Samoan chiefs were there, including three representatives of Samoa’s paramount lineages. Also present was the Salelesi – ‘the traditional guard of the head of state and the speaker of the house’ – whose traditional chant was seen as a cultural endorsement of Fiame as leader of the country. The caretaker PM called the ceremony a ‘treason’. Fiame and her supporters argued that the ceremony was necessary in order to comply with the Constitution. On 28 June the Supreme Court ruled that the swearing in was illegal, but if Parliament does not convene within seven days the Court will invoke the principle of necessity. Failure to comply or attempts to obstruct this will be a clear contempt of court. 

This may appear to resolve the deadlock, although as late as Saturday 26 June Tuila’epa was asserting Parliament could not convene. A notable feature of the political contest is the plurality of authorities engaged which illustrate the contextual challenges of adhering to a Westminster style Constitution.

The caretaker Prime Minister, unwilling to concede defeat, has claimed he is appointed by God and that the judiciary has no authority over his appointment. The Speaker has also held that the Prime Minister is appointed by God. However, the Catholic Archbishop of Samoa, whose words carry considerable weight in this Christian nation, in his Sunday sermon on 2 June, made it very clear that the attempt to cling to power and not accept defeat ‘was undoing work done by Samoa’s forebears who shed their blood for independence’. 

Alongside this is the role and significance of tradition and custom, encapsulated in Samoa by the term Fa’a Sāmoa. This includes respect for title-holders, particularly the Head of State, who is vested with constitutional power and the traditional power - Tama-a-‘Aiga - over all Samoans. The caretaker Prime Minister also sees himself as the custodian of the Fa’a Sāmoa. Indeed, in introducing controversial legislation last year he suggested that the Constitution had been drafted by those who did not understand the Fa’a Sāmoa and he has been critical of what he considers to be the negative influence of palagi – white people/foreign thinking. He has stated that Fiame and the FAST party have not respected the Fa’a Sāmoa because the Head of State was absent from the swearing-in ceremony. Fiame, on the other hand, has argued that the swearing-in ceremony was necessary to comply with the time period stipulated in the Constitution. She has also repeatedly stressed the importance of the rule of law. 

While the Constitution provides for the separation of powers, the judiciary has not escaped attack. The caretaker Prime Minister has made it clear that he does not believe the judiciary has any say over his party’s authority to rule. His Attorney-General attempted to have the presiding judges of the Supreme Court disqualified before they were to decide on the validity of the swearing in ceremony, because of ‘potential clash of interests’ and ‘potential favouritism’. She also sought to have all the Samoan judges sitting on the Court of Appeal hearing the question of women MPs disqualified – although she later withdrew this threat. 

Resolving the many disputed issues in the courts will take time, especially if outcomes are appealed. In the interim and while there is no government, the two leaders and the political parties have adopted the Samoan way: talking at length (a process referred to as a soalaupule or talanoa). Talks have not led to a resolution, although election challenges now give FAST 26 seats and HRPP 23 with a by-election pending in a contested seat.

The imminent possibility of ousting a political party that has been in power since 1982 with no real opposition – and indeed a Prime Minister who has been in post for 22 years – is a significant moment for Samoa, and indeed ‘an important litmus test for democracy in the Pacific’. 

Sue Farran is a Reader in Law at Newcastle University, England.

Suggested Citation: Sue Farran, ‘Has Samoa Weathered a Constitutional storm and Reached a Constitutional Compromise Between Tradition and Democratic Government?’, IACL-IADC Blog (1 July 2021) https://blog-iacl-aidc.org/2021-posts/1/7/21-samoa-constitutional-compromise.