SAMOA

COMMISSION OF INQUIRY ELECTORAL MATTERS

Table of Contents

Introduction 
A Snapshot
Voter Transfer Registrations
The Electoral Body and Territorial Constituencies
Who exactly then should be Registered in an Electorate?
Territorial Constituencies in the Urban Area
Freehold/Leasehold/New Settlement Dwellers
Stable Electoral Rolls
Permissible Transfers
Treating and Bribery
Customary Acts and Corrupt Practice
Fifty years
Turning back the clock; special efforts; an independent electoral commission
Other Matters of Process
Public Officials to resign to stand
Two (2) Seat Constituencies
Additional Seats for Constituencies
Electoral Petitions
Fine-Tuning Amendments
Special Booths
Summary of Conclusions & Recommendations 
Appendix 1 Terms of Reference
Appendix 2 Samoa Observer Article 27/2/2012

1.	Introduction

Our Terms of Reference are attached as Appendix 1

Put briefly, they require us to advance, if appropriate, change measures in a number of specific areas and to review Samoa's electoral system and processes in light of recent experience. 

A number of the change measures listed have been under earlier consideration. 

Within the last twelve years for instance, three Commissions of Inquiry before us proposed discontinuance of the Individual Voters Roll and its replacement by two seats in Parliament for "urban" dwellers.

Two Commissions of Inquiry proposed dividing the territorial constituencies which currently have two parliamentary seats into two single seat electorates.

Two Commissions of Inquiry favoured public office holders to resign from their posts should they choose to stand for Parliamentary elections. 

The last General Elections held on 4 March 2011provide most recent experience of the Electoral System and processes at work. Reports from the Electoral Court on the petitions arising from the 2011 General Elections together with the testimony and views of witnesses before the Commission of Inquiry on aspects of those Elections shape our perspective for the following commentary.

2.	A Snapshot

After fifty years of independence, our political elections are still dogged by problems that reflect badly on Samoa's advance as a maturing parliamentary democracy.

Electoral laws insist on a high standard of propriety but elections after elections, with respect, have been prey to unprincipled campaigning activities, grossly sub-standard administration and the expectations of a voter population that is significantly compromised in prohibited acts by its willing participation in them; conduct which, if proven in an electoral court, would be corrupt practice.

Legislative shortcoming in some instances impinges on optimal functioning of the electoral system. The major problems however, can be attributed to widespread disregard of the law by political candidate and voter alike and lack of diligence on the part of officials in the discharge of their responsibilities and application of the law. 

All of these weaknesses converge habitually in an activity of the electoral process that was condemned more vehemently than any other aspect of the General Elections by witnesses before us. Many of these witnesses appealed to the Commission to ban outright, the transfer of voter registrations from constituency to constituency. It was pressed upon us in this manner that the shifting sand nature of the electoral body is a persistent problem that has become intolerable. 

3.	Voter Transfer Registrations

Alarm about this activity from recent experience is further evidenced by the specific listing of this matter in our Terms of Reference.

Another specifically listed matter is discontinuation of special voting booths. This seemingly separate matter is in essence directly linked to transfers registration because objection to special booths is premised, in large part, on assumptions of improper transfer registration.

The 2000 Commission of Inquiry had this to say about voter mobility:

"… Samoa is probably the only country where with regard to voters, rather than taking the electorate as [he] finds it, the candidate by his own efforts can create a significant part of his electorate. In itself, this may not be objectionable. Candidates after all have equal freedom, though perhaps not equal capacity, to create. The very real prospect under the system, however, of absentee voting trouncing perceived resident will, is inherently undesirable and potentially dangerous."

Fluidity in the electoral body, according to views expressed to us is driven by electoral candidates who, in many cases, have come to see the registration of voters purloined from other electorates as a normal campaign activity for their Campaign Committees.

It has been common, once it's known that a constituency seat is to be uncontested in General Elections, for a scurry to register regular voters of that electorate on the rolls of other electorates. Voters registered in this way and other transferees have remained for many subsequent Elections on the rolls of constituencies in which they have no real interest or active links.

The total roll of voters for the 2011 General Elections was 100,810.There were 12,619 registered transfers from electorate to electorate. 

Few would suggest many of these transfer registrations to be genuine voter initiatives or that the people involved have much in the way of legitimate justification for changing constituencies. How then did so many transfer registrations happen?

The short answer in the case of the territorial constituencies is urban drift and large scale misuse of s16 (2) (b) (ii)of the Electoral Act.

Section 16 (2) (b) reads:

 "If the elector is not the holder of a Matai title, the elector shall be registered in;

(i)	The constituency in which the elector resides; or

(ii)	If the elector is the spouse or parent or child or brother or sister of a Matai and such elector chooses, the constituency in which such Matai is registered.

The overall effect of the subsection is not to tie any voter to the electorate in which he permanently resides, if he can show that he is related in the manner defined above to a matai registered in any other territorial constituency in Samoa. Enormous possibilities furthermore open up for registration in any of the territorial constituencies if the strict confines of permissible kinship are not strictly observed. 

Electoral Candidates or their Committees pounce ons16 (2) (b) (ii) to register with ease people who are willing to be used as electors for the candidates in the latter's constituencies. The Office of the Electoral Commissioner, in our view, makes little effective effort to ascertain proper compliance with the requirements of the Act, choosing often to rely on Pulenuu certification as adequate backing for registration. As s16 (3) of the Electoral Act allows a person to register anew every five (5) years there is never a shortage of potential transfer registrants at election time for reward, we are told.

Disenchantment with current facility in transfer registration was poignantly expressed to us in a petition from Faleata iSisifo. The petition while asking on the one hand for an extra seat in Parliament for the constituency on grounds of its fast swelling roll also asked paradoxically for "all non-Faleata i Sisifo people [to] vote at their own villages of origin". Appendix 2 is a newspaper article on this petition.

The impact of transfers can be significant, even crucial given small voter numbers in the Samoan constituencies. In the circumstances, we are not surprised by the degree of anxiety reflected in representations made to us for an outright ban on transfers. We appreciate the concern but a total ban cannot be the answer as there would always be reasonable justification for the citizen to change the constituency in which he or she exercises voting rights.

All in all, it appears to us that talk of a ban is not indicative of public aversion to transfers as such but arises out of exasperation with the fluidity and associated mischief that the registration system currently allows. The call is for re-calibration, consolidation and clarification of areas in the system that are obviously troublesome.

A satisfactory solution requires:

1.	Sharp definition of eligibility for registration in a particular electorate.

2.	Restricted and clearly defined grounds for transferring registration from one constituency to another.

3.	Strict application of legislative stipulations on these matters by the Office of the Electoral Commissioner.

We deal further with these aspects in this Report; suffice to say at this point that there are grave deficiencies in all three areas. 

4.	The Electoral Body and Territorial Constituencies

Witnesses were clear on the need for urgent action on the problems pertaining to the Electoral Roll. We sensed a desire also for a clearer understanding of the national electoral body as a schematic whole and how its different elements fit together, now that an original part of it, the anomalous "Individual Voters" electorate is to be replaced by something else. We delay no further in attempting an elaboration of these matters to enhance understanding and hopefully to guide legislative adjustment.

Defining electoral constituencies in many a country is simply a matter of drawing boundaries on the physical map of its land territory while keeping an eye on population distribution. Eligible voters residing within the resulting drawn boundaries form the electorates. 

Samoa's experience necessarily, had to be different. In defining Electoral Districts, Samoa preserved as far as possible the traditional linkages and political affiliations between village communities. Population density was relevant but not overwhelmingly so.

Samoa's land area was accordingly divided into political districts along traditional lines but as matai suffrage was the order of the day, an elector's place of actual residence was not relevant for the electoral purposes of the new independent State. The focus was on the person of the matai. It was an easy matter to match matai titles to the traditional communities and that was all that mattered in the construction of the territorial constituency rolls. 

The racially based Individual Voters Roll was differently devised and annexed onto the national electorate without any territorial linkages. 

Universal suffrage, when it came was accommodated in the Electoral Act by making kin connection to matai a qualification for an untitled adult person to register in a territorial constituency roll. Place of actual residence remained unimportant.

Following the 2001 Commission of Inquiry, changes to the Electoral Act introduced residence supposedly as the primary criterion for determining voter eligibility in the territorial constituencies. Mindful of problems posed by movement to and fro within the national electoral body, the 2001 Commission advanced as basis for the changes a concept it attributed to and quoted from the report of a 2000 Commission of Inquiry. Important implications of that concept were however not fully incorporated into the Electoral Act. This incompleteness of application is the cause of some of our present woes.

5.	Who exactly then should be Registered in an Electorate?

To answer this question we quote extensively from the concept expounded in the 2000 Commission of Inquiry Report:

"… … the focus in our view ought squarely to be on the "alalafaga" or "afioaga" and not the individual matai. 

 We feel that conceptually, the registration system should capture and preserve the framework of the traditional social community of the "alaalafaga" or "afioaga" based on its customary lands but centred in every case on the Alii and Faipule (matais) and extending outwards to embrace those over which the Alii and Faipule exercises authority and extends protection.

 In the electoral context the conceptual framework translates into the vote for the Alii and Faipule itself both in its resident and non-resident components; and for non-matai who are linked to the Alii and Faipule by blood or marriage and who reside in the village. It facilitates the vote also for others who, though not linked to the Alii and Faipule by kinship, nevertheless are accepted residents on a permanent basis within village customary land boundaries. This core group should embrace the entire resident population of a village plus all of its non-resident matai who are not in effect resident matai of other traditional "alaalafaga" or "afioaga" through other matai titles they happen to hold. The addition to this core group of two categories of people would complete the Electoral Roll for a particular village. 

(i)	A non-resident matai not already on the constituency Roll of Electors who chooses to stand for Parliament in the constituency plus permitted family members of that matai.

(ii)	Untitled individuals with authentic kinship connection to the Aliiand Faipule who reside on freehold land or other non-customary land. "

The above formulations take care of voting rights for all citizens residing on customary land under the authority and protection of Alii and Faipule of Samoa consistent with the Village Fono Act 1990.

We turn now more fully to citizens residing on the remaining land territory of Samoa, i.e. freehold and any other non-customary land. We think along with earlier Commissions of Inquiry that the two seats now belonging to the Individual Voters Constituency should be allocated to two constituencies for non-customary land dwellers. As the majority of these voters live close to the town area, the constituencies could well be called Urban East and Urban West.

We propose the electoral rolls of these constituencies to comprise the following citizens:

1.	Citizens presently on the Individual Voters roll who do not qualify or do not wish to be registered in a traditional territorial constituency.

2.	Non-matai citizens residing on non-customary land who do not qualify or do not wish to be registered in traditional territorial constituencies open to them.

We believe the above proposals preserve to extents possible, both the integrity of traditional social framework and the free exercise of individual choice, given the realities of modern Samoa. 

In summary, the people categorized below would be eligible for new registration as voters in the electoral constituencies if they are adult citizens residing in Samoa for an elapsed period of at least one year.

Territorial Constituencies

1. Alii&Faipule and non-matai who reside on the customary lands of the alalafaga/afioaga of constituencies.

2. Matai of the alalafaga/afioaga who reside on non-customary land. A single choice must be made by those with multiple choices under this category.

3. Non-matai residing on non-customary land who can satisfy the Electoral Commission that he has genuine links to an alalafaga/afioga and wishes to maintain such links for electoral purposes. A single choice must be made by the many that will have multiple options under this category.

NOTE: [Voters registering under categories 2 and 3 above would be deemed for purposes of the Electoral Roll to reside in the territorial constituencies they choose. Notation to this effect would appear alongside their names on the constituency roll.]

Non-Customary land constituencies (Urban)

1. Voters on the current Individual Voters Roll who choose not to exercise other options open to them.

2. Non-matai residing on non-customary land who are not eligible or do not wish to be registered in a territorial constituency. 

We realize that the criteria of proof and evidence by an elector of:

a.	residence on either customary and non-customary land; and/or

b.	genuine links to a constituency

in accordance with the above proposal is something best left to the determination or discretion of the proposed Electoral Commission. 

6.	Territorial Constituencies in the Urban Area

On the issue of the territorial constituencies in the urban area, the 2000 Commission of Inquiry had this to say:

"Electors that have been registered on the strength of residential and other criteria have swelled the Electoral Rolls of the Vaimauga and Faleata territorial constituencies. These electors are not Vaimauga or Faleata people by heritage and there is some concern about the selection of political representation for these traditional districts falling out of proper hands.

We sympathise with these concerns in the belief that Vaimauga and Faleata Districts are entitled to their traditional identities and to the same communal exclusivity that is enjoyed in other territorial constituencies. We think it appropriate to effect in Faleata and Vaimauga the proper contextual realities of the formula that governs elector registration in all other territorial constituencies. 

We think it unfortunate that the rolls of Faleata and Vaimauga have been opened to people on the basis of so-called residence. This development has vitiated the integrity of these constituencies as social and political organisms possessed of ancestral traditions and essence that are encapsulated in "faalupega". Demographic incursion must detract from the in-house nurturing of these things."

The sentiments expressed above are still true today. We are therefore recommending that for elector registration purposes, "residence" in Faleata and Vaimauga is to mean residence on existing customary lands of the Constituencies. This approach makes it possible to maintain parity for Faleata and Vaimauga as customary communities, with the rest of the country's territorial constituencies.

7.	Freehold/Leasehold/New Settlement Dwellers

Many urban settlers are comfortable with retaining connections with the territorial constituencies. There is also desire on the part of others to be represented by candidates who can focus on urban and other issues that affect their lives.

Under the proposals advanced here, these people would not be eligible to register as electors for Vaimauga and Faleata constituencies unless they have authentic kin connections to the "afioaga" and "alaalafaga" in these constituencies. Those without such connections would be eligible to register in territorial constituencies in Samoa to which they can establish connection by ancestry. The remainder would be free to register in one of the two non-customary land constituencies proposed to be created.

8.	Stable Electoral Rolls

We believe that stable electoral rolls comprised of properly eligible voters, and only properly eligible voters, in each of the constituencies will facilitate eventually, quality interest-based decision making and genuine popular electoral choices, whether by way of the ballot box or through traditional means. Hopefully, it would increasingly be without the distraction of corrupt practices, acknowledged openly to be overwhelming today.

We dare to think this lofty ideal not to be out of reach if we act now to set our electoral house in order, before we become too set in our ways or blasé about what is happening around us.

The first step, in our view, is to re-cast the Electoral Rolls to accord with the conceptual registration framework explained above. This could be effected between now and the next General Elections in 2016. We understand that the personal details of voters already recorded in the electoral data base will greatly assist in this task. 

Once the rolls are tidied up, it should be simple enough to be rid, with respect, of the ugly "cattle herding" and "cattle rustling" type absurdity to which a significant element of Samoa's voting population is routinely subjected at election time by candidates' campaign committees. This would be achieved by removing the loose eligibility criteria by which campaigners have been able to initiate transfer registrations en masse. New requirements proposed below should so change things that these campaign strategies would no longer be fruitful.

In future, the initiative and responsibility for electoral registrations will be the business of the voter to be taken up by him with the Office of the Electoral Commission, who in turn will give these matters proper attention and scrutiny.

We are recommending the constituency rolls to be printed not simply alphabetically for the entire constituency as per the current practice but to set out electors village by village to make it easier to detect and to object to unjustified listings.

9.	Permissible Transfers

We think that it should not be a matter of right to transfer one's electoral registration every five (5) years as is now the case pursuant to s 16 (3) of the Electoral Act.

 We are proposing that once a person is registered, a transfer to any other constituency should be entertained only when that person can establish to the Electoral Commission's satisfaction that he or she has changed physical residence to that other constituency and that he intends to reside there permanently. 

 A minimum residence period before application should be set. We propose twelve months. A properly executed statutory declaration could be required from the applicant and a resident matai or other appropriate person of good standing. Numbers would not be great and dealing appropriately with false declarations should therefore, be manageable and good deterrent against false claims.

A stop on the processing of transfer applications could also be put at one year, before a General Elections is required by law to be held. Given gross abuse of the transfer facility in the past, no stipulation for the future, in our view, can be considered too harsh.

We propose exceptions to the "change in residence" rule for the transfer of a registered elector or voter to be permitted only in cases of matai wishing to stand as candidates in electorates other than the ones in which they are already registered as voters. We emphasize that exception to the rule is not available to voters as such but to matai who wish to fulfil in politics the calling of a Samoan matai to speak as a leader and to represent others. The exception would extend to the spouse and children of the matai concerned.

Transfer in such instances to a territorial constituency would in all cases be based on the intending candidate holding a matai title of the constituency. Transfer to a non-customary land constituency on the other hand would in all cases be based on the intending candidate being already physically resident for one year in the constituency. Operation of the exception to cover the latter case incidentally, facilitates the recently imposed requirement for all Members of Parliament to be matai.

10.	Treating and Bribery

Enormous amounts of money are spent by candidates on 'fa'atosina'. "Handouts" in different forms except informational, is common practice in Samoan elections. Expectation of these benefits on the part of many, many voters is so well established that they engage unashamedly in directly soliciting cash from candidates. Approaches are made as requests for assistance with purportedly desperate personal needs. Requests for school fees or a few hundred to send the tired wife overseas for treatment and a break do not surprise Samoan ears during Election season.

The vulnerability of politicians at this time is seen by many witnesses as properly providing opportunity for voters. "Ona pau lea o le taimi e 'ai ai e le vale le afu o le poto" was actually said to us, jokingly perhaps but with a confident air of comfortable certitude.

We were very interested in views on the o'o and momoli, which are spoken of in respectful, almost reverential tones as custom, but which everybody knows to be inducement for support at the ballot box. It was expressed to us that it was fair enough for a candidate to do the o'o in a big way because he may not be much seen by the voters after the elections. The o'o is well supported by many because, in their eyes, it satisfies custom and shows the candidate to properly have the constituency in mind. One delegation even stated that an o'o every year would really demonstrate constituency mindfulness.

It was expressed to us that a faipule spends or gives so much to get himself elected that it is insult to lose his seat in an election petition because of a measly$20 given to a voter. Some thought it appropriate to set a limit on spending but were unsure on how to enforce compliance. Many advocated accepting the reality that interacting today with the voters requires a lot of money. The Government therefore, ought simply to allow things to take their own course and to do away with controls on fa'atosina; to do away also with election petitions after the elections because they give the country a bad name. These views, expressed with no semblance of self consciousness, point to an insidious loss of attachment to, or desire for good governance and laws in these matters.

Happily, there are citizens out there who see elections as something more than periodic voter feeding frenzies. These people see the o'o, momoli or whatever given before polling day as simply vote inducing manoeuvres couched in customary terms. They would prefer to see none of these things at all until after the elections when a winning candidate could present an o'o to show gratitude to the electorate as a community.

There would be nothing, we suppose, to stop a defeated incumbent also from presenting a momoli after the polls, to convey gratitude for the honour of serving the community for the term recently completed. Should a defeated incumbent not feel the need to do a momoli at this late juncture, then the compelling urge he may have felt to convey thanks before the elections was perhaps not a truly custom-driven urge after all.

11.	Customary Acts and Corrupt Practice

Samoa has a deep desire to preserve her customs and traditions. The recorded events and decisions at independence reflect this very clearly. In general, customs and traditions have meshed easily with emergent requirements to enrich modern ways and practices.

In the field of politics, the going has been clearly tough. The observation has always been around that just as "east is east and west is west and never the twain shall meet", so must political elections and Samoan cultural traditions be kept clearly apart for both their sakes. The values, clinical perspectives and the stringent standards and requirements of electoral lawfulness just do not mesh with tendencies towards generosity, accommodation, and gifting that come to the fore in communal interaction in Samoa. 

In spite of these fundamental contradictions there has not been willingness to leave custom and traditions behind in our electoral laws. From the outset understandably, we wanted the intrinsic integrity and dignity of traditional Samoa to add to the authority and credence of democratic governance under the new State. A problem however, from the start has been that when an act by its nature is corrupt practice in the electoral context and it is an act that is required by custom, it is just not possible to determine truly where custom ends and corruption begins. The way out for Samoa has been to arbitrarily create periods within which political candidates can undertake customary activities without fear of prosecution. Many people have come now to cynically view this as legalised corruption; Samoans at large simply know it as fa'atosina time.

12.	Fifty years

This Commission of Inquiry is an opportunity to look at the outcome of fifty years of accommodating custom and traditions in our electoral laws and practices.

Corruptive acts are no less corrupting when carried out as custom or within a customary framework. People also are only human. They welcome handouts with open arms and insatiable appetites. The fact of the matter is, our electoral system has facilitated corrupt practices to grow to alarming proportions. Not only is voter mentality now one of keen expectation of candidate largesse; they understand this, and if necessary the extortion of money from candidates, to be what political elections are all about. The Electoral Court has referred to this emerging sad reality as "an indictment of the political practices that prevail in our country".

The level to which political contenders are reportedly willing to lift their stakes in the electoral races is unbelievable and frankly scary given Samoa's smallness and low incomes. We were told that now days, three hundred thousand tala for an Elections is not extraordinary and that figures beyond the half million mark would not cause some people to even blink.
Insatiable voter appetite and surging candidate largesse acting one upon the other over the years, have driven up the magnitude of corrupt practices in our political elections. Many, undoubtedly for short term reasons, openly welcome this development. Other attitudes, as far as this Commission of Inquiry can gather, reflect in the main, reluctant resignation and surrender.

We have alluded to flippant calls for total deregulation in these matters. There were also sober calls for clear limits on spending in light of evident run away levels. Inherent in both stances interestingly, is acceptance of the current practices and tenor of political electioneering as a reality of life in Samoa today. Furthermore, although the two positions appear to be at opposites, ultimate out come probably would be the same for them both. This is because it would be difficult, if not impossible, to impose compliance with limits that may be set under the latter approach.

The o'o and momoli in true spirit cannot be faulted. We cannot pretend however, that observing these cultural practices when polls are looming, do not in fact degenerate them into acts of bribery and corrupt treating. Furthermore, quite apart from the corrupt impact of the acts themselves upon direct recipients, the mere fact of their occurring without impunity all over the country so close to polling, detracts from efforts to impress upon the community that bribery and elections do not mix. Rather, it tends to fan the flames of a culture of acceptance of such mix in Samoan politics. The result clearly has been that while the law is crystal clear on the matter, no one takes any notice until after the elections when contending candidates search out willing testifiers to take one another down in election petitions.

13.	Turning back the clock; special efforts; an independent 
Electoral Commission 

Corrupt practice in the form of bribery is openly acknowledged to be rampant in Samoan elections. This Commission of Inquiry does not think for one moment that acceptance of this with resignation accords with the true wishes or best interests of this country. Rather, we think that aspects of the electoral processes currently prescribed in the Electoral Act, have seriously harmed the integrity and the values we espouse, in both our cultural traditions and our politics. These vital aspects in the life of Samoan society need to be better and more safely separated than they have been in past designs. 

We think removal of the window of opportunity for o'o and momoli that is in the Electoral Act, three months before polling, should be an opening gambit in special efforts to turn back the clock and to promote proper observance of the law against corrupt practices. We see also the establishment of an independent Samoa Electoral Commission (SEC) as a crucial central element in these special efforts. We have the support of two earlier Commissions of Inquiry in the matter of an SEC.

The o'o and momoli in our view should be done within four months after the polls. Until future experience shows otherwise, we think it unnecessary to stipulate levels of expenditure for these customary presentations. The Electoral Commission however, should be advised of plans for them and it could well be good practice for candidates to submit reports to SEC after the event. The community must become conscious of Electoral Commission seriousness about propriety in all things to do with elections.

The Samoa Electoral Commission like similar commissions elsewhere should take full charge of, and assume ongoing responsibility for the conduct and supervision of electoral activities. When it is formed, we think it should attend immediately to two urgent tasks:

1.	To restore the practical mechanisms of the electoral process to an acceptable proficient state.

2.	To spearhead, formulate and maintain strategies for an ongoing campaign towards corrupt-free political elections which achieve the national objectives of Samoa and compliance with the country's electoral laws. 

The 2001 Commission of Inquiry devoted a great deal of attention to the establishment of a Samoan Electoral Commission in its report. The 2006 Commission also was in favour. The2001Commission saw the functions of an SEC in the following terms:

•	Conduct parliamentary elections and referendums;
•	Maintain the general Electoral Roll including Rolls used for by-elections;
•	Conduct electoral training and education programmes;
•	Initiate prosecutions for breaches of election laws;
•	Clarify provisions of the Act, and provide rulings on technical matters;
•	Provide electoral information and other public awareness materials;
•	Providing party registration and funding and disclosure services to parties, candidates and others;
•	Conducting and promoting research into electoral matters, such as redefining electoral boundaries.

We respectfully echo the 2001 Commission's suggestion for Government to adequately consult and review overseas practices. We endorse similarly that Commission's recommendation for a consultative Committee to be set up for the purpose of "implementing the structure as well as nursing the SEC into operation". 

14.	Other Matters of Process

The schedules to the Electoral Act impose steps and procedures to facilitate the substantive provisions of the Act.

Problems in connection with these steps and procedures were brought to our attention. We noted clear evidence of reluctance on the part of the Electoral Office to determine matters that are within the Commissioner's powers to address. The Electoral Court was very critical of this in a case before the Court where the Commissioner's failure to act impacted on the issue of the onus of proof.

In another case drawn to our attention, not only did the Electoral Office not insist on statutory declarations that were expressly required, it seemed not inclined to be even minimally curious about the veracity of the claims it was considering. The Electoral Office showed no interest in asserting itself by reasonable inquiry, or initial rejection to elicit further substantiation, preferring passively to leave matters to the Court should events take matters there. Diffidence of this kind, in our view, is lack of confidence that directly translates to a waste or diversion of judicial resources from other pressing tasks. It points also to need for the establishment of an independent Samoa Electoral Commission to assert appropriate powers in electoral matters. 

Form 1A of the Schedule to the Electoral Act requires Pulenuu certification of a candidate's tautua. Problems arising from this requirement ranged from straight out objection to power given to the Pulenuu by way of this schedule, to questions raised in the Electoral Court as to which Pulenuu was intended by the Act in the particular case to issue legitimate certification. 

Objection levelled at power given to Pulenuu under the schedule is well founded in our view. The electoral roll of a constituency should comprise of legitimate electors in accordance with criteria established by law. Thereafter, we think the electoral system should merely facilitate electors to freely choose from among them a matai to represent them in Parliament. We think it wrong to hamper this basic freedom by further stipulations.

It is further wrong to invest an individual, who may be biased, with power to endorse or reject a citizen's genuineness or suitability for lawful political activity. With regard to parliamentary candidates, ultimate judgment about them, their shortcomings and all their blemishes lie with the voters. We think it wrong to have intermediary judges in the process.

The Electoral Court following a 2011 election petitions saw fit to report on "the increasingly prominent role being played by pulenuus in respect of the campaigns of candidates in their villages. As public officials and appointed representatives of the Government they appear to be displaying a distinct lack of neutrality and have in our view set poor examples for the village to follow in particular the young and impressionable members thereof".

We are recommending reversion to the old method of candidate nomination which does not involve the Pulenuuin any way. 

15.	Public Officials to resign to stand

Many reasons were advanced to us in support of the recommendation of two earlier Commissions of Inquiry for public servants and other public office holders to resign when they stand for parliament. The most impressive of these perhaps was the "loss of innocence" argument which holds that in the circumstances of Samoa today, a public servant who enters into the fray of politics would thereafter no longer be the politically neutral person he is required to be in public service. From another perspective, it is said that by entering a political race he signals a change in his person and that he no longer wishes to remain neutral in things political. Resignation is therefore only proper. 

Be that as it may, we do not think it appropriate to address this matter in any way in the Electoral Act. We think with respect, that it is a policy matter for the Government.

For contract officers we see nothing wrong with setting out a resignation requirement as a condition of contract. We see nothing wrong either in the Public Service Commission giving objective consideration to these matters and setting appropriate policy for the Public Service in consultation possibly with the Public Service Association.

16.	Two (2) Seat Constituencies

We endorse earlier Commissions of Inquiry recommendations to divide the constituencies which currently have two parliamentary seats into single seat constituencies. This would not only put an end to the unfair strategy of block voting but would also apply the principle of "one man one vote" throughout Samoa. We propose sub-division to be based on traditional linkages as follows:

1	Vaimauga Sisifo No. 1 (Fuaipolu)	Moata'a, Maagiagi, Vaiala	
	Vaimauga Sisifo No. 2 (Sagauga)	Apia, Matautu, Tanugamanono, Vailima	
2	A'ana Alofi No. 1 Sasa'e	Faleasi'u	
	A'ana Alofi No. 1 Sisifo	Fasito'o-uta	
3	Safata Sasa'e (Alataua)	Mulivai, Fusi, Fausaga, Tafitoala	
	Safata Sisifo (Sa Tunumafono)	Vaie'e, Nu'usuatia, Lotofaga, Sataoa, Sa'anapu	
4	Falealili Sasa'e (Sa Fenunuivao)	Salesatele, Siuniu, Salani, Sapo'e, Utulaelae	
5	Falealili Sisifo (Alo Fanene)	Sapunaoa, Satalo, Malaemalu, Tafatafa, Matautu, Vaovai, Poutasi, Saleilua	
6	Salega Sasa'e	Sagone, Fogasavaii, Vaipu'a	
	Salega Sisifo	Faia'ai, Fogatuli, Samata-i-tai, Samata-i-uta, Fagafau	
7	Fa'asalele'aga No. 1 Sasa'e	Salelologa	
	Fa'asalele'aga No. 1 Sisifo	Salelavalu, Iva, Vaiafai, Vaisaulu, Lalomalava, Safua	

We were not specifically required to look into the matter of electoral boundaries. Our attention was however drawn to the somewhat anomalous situation of Tafua village by a witness from that village. Tafua is presently part of the Palauli o Falefa constituency whereas all indications show it traditionally to be part of Faasaleleaga. It occurs to us, for what it may be worth, that the intended sub-division of Faasaleleaga No. 1 as indicated above might be an appropriate opportunity to address this anomaly.It would appear logical to detach Tafua from its current placing on the electoral map and to put it together with Salelologa to form Faasaleleaga No 1 Sasae.

17.	Additional Seats for Constituencies

While a number of witnesses mentioned additional seats for their constituencies, in passing, a special delegation of the Alii&Faipule of Sapapalii led by the Faipule appeared before us to plead the single matter of a seat for Sapapalii within the constituency of Faasaleleaga No 2.

We were very conscious of the fact, which they pointed out, that the 2006 Commission of Inquiry had looked at the matter of additional parliamentary seats and determined Sapapalii, among others, to be deserving of a parliamentary seat on its own within the constituency.

We will not discuss the extensive case submitted by the delegation which case obviously had been examined by the 2006 Commission and found meritorious. We informed the delegation that the matter was not specifically before us to take to conclusion. Given the broad implications of such a matter, full and proper consideration can only be given it by a Commission devoted exclusively to such an issue in the national context or by a Samoa Electoral Commission as part of an ongoing mandate. 

18.	Electoral Petitions

It was submitted to us that "legal and cultural mechanisms in place must ensure the best people are elected to Parliament which is the heart of democracy for any country. Unfortunately, this is not happening as we continue to witness time consuming and expensive series of petition cases and subsequent criminal hearings on corrupt practices." 
It is "a sign of immaturity in complying with democratic principles and a signal of disrespect to the electoral laws and customs of Samoa."

We look forward in due course to not having the embarrassing electoral petitions phase of the General Elections to which we are so accustomed. In the meantime, we have to ensure that the legislative provisions for electoral petitions meet current needs.

It has been law since 1995 for a candidate to poll at least 50% of the votes received by the winning candidate before he can lodge an election petition against the winner.

Two past Commissions of Inquiry recommended removal of this requirement on the reasoning that there should not be a bar to the bringing of action against wrong doing. The 2006 Commission of Inquiry on the other hand supported retention of the provision in the Electoral Act.

While we basically espouse the ideal of no barrier to the bringing of actions against wrong doing we are conscious of the need to discourage frivolous and vexatious actions against victors in the political races. 

Heightened reliance on cash in electioneering and more accepting attitudes on the role of money in elections, have fostered vote buying on larger scales and greater openness than ever before, in all out endeavours to be untouchable by virtue of the protective threshold.

We think it appropriate to counter these trends and to signal a genuine intention to reverse them and to reform electioneering practices, by reducing the threshold from 50 to 35 per cent.

19.	Fine-Tuning Amendments

Section 106(1) of the Electoral Act prescribes seven (7) working days for the filing of petitions after public notification of poll results. Respondents may be required to file responses within a similar period.

The short time frames signal the policy objective of disposing quickly with electoral petitions. We were told however, from practical experience that a slight increase in time allowed for filings would be well used in assessing allegations and supporting evidence to place before the Electoral Court. In fairness, Defendants also require reasonable opportunity to properly prepare defences to the many allegations that are often raised. 

We are proposing the prescribed period for the filing of a petition to be raised from seven (7) to ten (10) working days. It goes without saying that a Respondent would be allowed at least a similar period to respond.

The Electoral Court determined in a 2011 Electoral petition that the onus of proof falls on the person claiming to meet the 3 year residency qualification required of Parliamentary candidates. We are proposing this to be made explicit in the Electoral Act.

The actions of scrutineers have given rise to comment in the Electoral Court in connection with the secrecy requirements of the poll. Scrutineers and other polling duty officers make statutory declarations that they will not do anything that is forbidden by s94 of the Electoral Act. Breach of the secrecy provisions makes a person liable to imprisonment for up to three (3) months. 

We understand the set penalty to be too low and too inflexible a prescription to dispense effectively. We are proposing a penalty of imprisonment for up to one (1) year and/or a fine of up to $5,000.00.

20.	Special Booths

The Electoral Commissioner organizes voting booths throughout Samoa for the holding of political elections. Common sense dictates that he bears in mind in his organizing activities such factors as the security and efficiency of the polls as well as the convenience of the voting public. Arrangements would be expected to be facilitative and encouraging of voter turnout rather than the contrary. To this end, it has been the practice in General Elections to set up special booths for the rural electorates in the town area to cater tour ban dwelling territorial constituents. Special voting arrangements also enable voters to cast votes in any polling booth in Samoa.

From a logical perspective, bearing in mind the objectives of the Electoral Office, it is difficult to fault these arrangements; yet, disenchantment in some quarters with special booths seems to have developed into very real resentment.

Common perception appears to be that special booths cause resident will to be broadsided and overruled by the will of persons unknown. The reasoning has it that people who do not belong to the electorates have somehow been put on the rolls. They then vote in special booths without coming anywhere near the electorates where presumably, they would be unmasked as strangers and paid imposters. What would happen at that point is not explained.

Even if the reasoning just explained is spot on, the cause of it all is not the special booths but operation of the voter registration and transfer system. The answer lies in fixing the system; not eliminating the booths which are put in place for voter convenience and to promote voter turnout.

We have addressed the matter of the voter registration and transfer system earlier in this report. The matter of the booths is a practical detail that remains properly within the discretion of the Electoral Office. We are told that advances in computer technology are likely soon to facilitate new balloting systems that could do away with especially dedicated booths.

21.	Summary of Conclusions & Recommendations

WE CONCLUDE that:

1.	Although our electoral laws insist on a high standard of propriety, elections after elections have been prey to unprincipled campaigning activities, grossly sub-standard administration and the notorious expectations of an increasingly unscrupulous voter population. 

2.	Fluidity within the national electoral body is a telling manifestation of the conflux of the three factors just mentioned.

3.	The national electoral roll has been so affected by accumulations of contrived transfer registrations that a major effort is needed to transform it into stable constituency rolls that conform to an integrated concept of the whole which, in turn, matches the realities of modern Samoa. 

4.	An appropriate registration system for the territorial constituencies is one that focuses on the traditional social community of the "alaalafaga" or "afioaga" based on its customary lands but centred in every case on the Alii&Faipule (matais) and extending outwards to embrace into a core group, those over which the Alii&Faipule exercises authority and extends protection;

5.	Additionally, the registration system should properly facilitate choice for people residing permanently on non-customary land, between registration in a territorial constituency or in one of two non-customary land constituencies. 

6.	Aspects of the electoral processes currently prescribed in the Electoral Act, have seriously harmed the integrity and the values we espouse, in both our cultural traditions and our politics.

7.	An independent Samoa Electoral Commission needs to be quickly established to manage political elections, focus continuously on long term issues and to attend immediately to two urgent tasks:

(i)	To restore the practical mechanisms of the electoral process to a proficient stable state; and

(ii)	To spearhead, formulate and maintain strategies for an ongoing campaign towards corrupt-free political elections which achieve, the national objectives of Samoa and compliance with the country's electoral laws.

WE RECOMMEND:

1.	The early establishment of an independent Samoa Electoral Commission;

2.	 The elimination of the Individual voters roll and the creation instead of two single seat constituencies for non-customary land dwellers. The dividing line between East and West could be the Lepea – Tapatapao road through to the other side of Upolu. The whole of Savaii would thus fall into the western constituency.

3.	The electoral roll of a territorial constituency to be comprised of:

•	Alii&Faipule and non-matai who reside on the customary lands of the alalafaga/afioaga of the constituency.

•	Matai of the alalafaga/afioaga who reside on non-customary land. 

•	Non-matai residing on non-customary land who can satisfy the Electoral Commission that he has genuine links to analalafaga/afioga and wishes to maintain such links for electoral purposes. 

4.	The electoral roll of a non-customary land (urban) constituency to comprise of:

•	As a transitional measure, voters on the current Individual Voters Roll residing east or west of the urban constituencies dividing line who choose not to exercise other options open to them.

•	Non-matai residing on non-customary land within the constituency who are not eligible or do not wish to be registered in a territorial constituency. 

5.	A transfer of voter registration from one electorate to another to be permitted only if:

•	The voter satisfies the Electoral Office that he has been residing in the other electorate for a minimum period of twelve (12) months and that he intends to reside in that other permanently.

•	A matai is nominated to stand as a candidate in an electorate other than the electorate in which he is already registered as a voter. The transfer of the registration of the candidate's spouse and children but not extended family, also to be permissible in this circumstance.

6.	The sub-division of electorates with two parliamentary seats into single seat electorates in the manner detailed in this report.

7.	The elimination of the 3 month long opportunity available under s 97 A of the Electoral Act to present an o'o or momoli before polling day; and a similar exempt period of four (4) months to be allowed instead, immediately after the polls.

8.	The elimination of the screening function that the pulenuu can potentially perform under the Electoral Act in the nomination of parliamentary candidates or in any other aspect of the electoral process and reversion to the simple nomination of candidates by qualified electors. 

9.	A revision of the Electoral Roll between now and the 2016 General Elections to reflect the formulations outlined in this report for the territorial and the non-customary land constituencies.

10.	The categorization of elector listings in the territorial constituency rolls by village of residence.

11.	The reduction of the threshold level of votes required by a candidate to lodge an electoral petition from 50% to 35% of the votes achieved by the winning candidate.

12.	Increasing the period for filing an electoral petition from seven (7) to ten (10) working days. 

13.	Making explicit in the Electoral Act that the onus of proof falls on the person claiming to meet the 3 year residency qualification required of candidates.

14.	Increasing the penalty for breach of the Electoral Act secrecy provisions to imprisonment for 1 year and/or a fine of $5,000.00

15.	The Electoral Commission to address directly the problem of bribery and the eliciting of bribes, with imaginative outreach programmes and prosecutions. 

16.	The consideration and determination by the appropriate authorities of policy on the matter of public officials standing as parliamentary candidates.

Our Commission of Inquiry commenced sittings on 7 February 2012 and completed work this day 7 May 2012. We were able to have sittings in Savaii on 12 – 16 March 2012.

It has been our solemn duty and great honour to inquire under Warrant of His Highness the Head of State into these important matters. We wish accordingly to express here our gratitude to the Government for our appointment and to Honourable Ministers, Honourable Members of Parliament and members of the public for appearing before us.

We are greatly indebted to the Ministry of Justice and Courts Administration for its unstinting facilitation of our work. We are grateful also to the Office of the Electoral Commissioner for the support extended to us.

We place on record our appreciation of the high quality assistance given to us throughout the Inquiry by Counsel Assisting Leafa Donald Kerslake, Secretary Li'o Heinrich Siemsen, Finance Officer Simea Avei and our tireless Stenographer and Transcribing Officer Riteta Lalogafau. We would not have managed without their unfailing support.

Maiava Iulai Toma
Chairman
		
Aiono Tile Gafa
Member
	Leota-Su'ateleManusegi
Member	
ToailoaVaosā
Member
	TupuolaSioneMalifa
Member	
Manu TaialofaNaseri
Member
	TofilauSemeli
Member	
Leavaiseetā Leavai
Member
	Rev SitufuTanielu
Member	

Apia Date: 7 May 2012