As the official vote count continues in Samoa, we revisit our cover story from November 2020.
“It’s very liberating. I haven’t felt this excited about politics for a long time,” says Samoa’s former Deputy Prime Minister, and now independent member, Fiame Naomi Mata’afa.
In September, Fiame resigned from government and ended her affiliation with the ruling Human Rights Protection Party (HRPP) over three controversial bills that would set up an autonomous Samoan Land and Titles Court. It means she will contest the April 2021 election with another party for the first time in her political career.
The bills at the heart of her decision have fomented political turmoil in Samoa all year. The Judicature Bill 2020, Lands and Titles Bill 2020 and the Constitutional Amendment Bill 2020 would together create an autonomous Land and Titles Court (LTC) which would operate in parallel to the existing criminal and civil courts, and have equal standing to those courts.
The bills would give official recognition to village councils says Samoa’s government. Under the changes, the Land and Titles Court system would have its own court of appeal (rather than appeals being directed to the Supreme Court as is currently the case), and would have “supreme authority over the subject of Samoan customs and usages”, including title succession. The government-appointed Samoa Judiciary Service Commission would also have the power to dismiss judges under the changes, creating concern that this leaves room for political interference.
The Lands and Titles Court was first recommended during a 2016 inquiry into the functioning of Samoa’s courts, and in particular the backlog of cases relating to lands and titles. A November 2016 Asian Development Bank Report and Recommendation of the President to the Board of Directors stated that “poorly defined property rights” was amongst the barriers to private sector development. More than 80% of Samoa’s land is customarily owned.
The President of the Land and Titles Court, Fepulea’i Atila Ropati supports the bills, however the forces arrayed against them are diverse, and include the Ombudsman Maiava Iulai Toma, who says it will have “injurious consequences” on fundamental freedoms, judges and Supreme Court Justices, lawyers, a former Attorney General, and several senior matai (chiefs). Former head of state Tui Atua Tupua Tamasese Efi says he is concerned the bill will enable the sale of land to fill government coffers and fund government debt and infrastructure projects.
The Samoa First and Samoa National Democratic parties have called for the bills to be delayed and the Samoa Law Society has been vocal in its criticism of the Bill. There has also been international criticism from the New Zealand Law Society and the International Bar Association.
But it is within the ranks of the ruling HRPP that the bills have caused the most disruption. Former parliamentary speaker and cabinet minister, La’auli Leuatea Polataivao Schmidt quit the party in dissent. Another MP, Faumuina Wayne Fong, was sacked for his opposition.
Fiame’s concerns over the bills are by now well documented. She is concerned that it will establish two court systems and two authorities, creating “so much possibility for conflict, for grey areas and so forth. I don’t think it has been well thought out.” She is also worried that there is no Samoan jurisprudence to base a new court and system on.
“There is a concern that [with] the establishment of this new court, there are no legal foundations, and potentially, what is happening is that the court will be given almost an unfettered power to determine issues of lands and titles and now also custom and usage, which essentially speaks to people’s behaviours, “ she told Islands Business.
“The third concern is that the current government, because of its numbers, they have a very strong hold on two of the government’s pillars, on the executive and the parliament, and what we’re seeing with the establishment of these split system, in the court system, is that the executive will have further influence into the law.”
Prime Minister Tuilaepa Aiono Sailele Malielegaoi, Samoa’s Prime Minister of more than two decades, has variously said that his opponents are interfering with God’s will and that their behaviour is “not Samoan”, as the constitution framed on independence in 1962 was “palagi thinking”.
“Anyone that does not support [these bills] is not Samoan and does not understand our tradition and culture and certainly does not want to be Samoan,” local media has reported the Prime Minister as saying.
The 2021 poll
After so many years with the ruling party, Fiame’s decision to contest next April’s election without the resources of the HRPP is a calculated risk. She was described as being “one step away” from the Prime Ministership by Tuilaepa, a description she disputes.
“I don’t completely agree with that. I mean it would appear to be the normal thing … but I don’t think it’s necessarily correct. Because it’s not for the Prime Minister to determine who goes up there, it’s really for the party to determine that.”
“The only clear way to make a stand on these particular bills was to step out. So currently I am an independent member, I’m speaking independently and taking as many opportunities as I can to speak to these bills. We anticipate the bill will come back either [at the] end of November or maybe December. The best outcome really would be for government to withdraw the bills or to let them lapse because they’re such huge gaps in the [application] of law that it’s going to be such a mess to even implement, not to mention that there will be a challenges on the constitutionality of these bills should they be passed.”
In a hastily passed bill last month, sitting MPs running for public office under a different political party in next April’s election had their seats declared vacant. This meant Fiame had to remain independent during the registration period and until Samoa’s parliament finishes its January session.
“Once the house rises next year, I can make my choice, whether to remain independent or whether to move to a new party. At the moment I have endorsed the FAST party, it would be most likely that I would move to that party to next year,” she says.
When registration for candidates closed in October, Fiame was one of three unopposed candidates. The ruling Human Rights Protection Party (HRPP) had 114 candidate nominations for 51 constitutencies.The Fa’atuatua i le Atua Samoa ua Tasi (FAST) party registered 50 candidates, Tautua Samoa Party had 14, Samoa First Political Party six, and Sovereign Independent Samoa just one. 15 independent candidates also registered.
Fiame says going into next year’s election uncontested “gives me a lot more leeway”.
She says while the contentious land and title bills have the potential to be a real national issue going into the next election, there are a number of other key issues.
“It’s not rocket science, it’s about the basic development pillars, it’s about people’s education. I think we’ve regressed a lot on people’s educational outcomes, and of course health. The concern is if people are not well educated and they’re not well, we just continue to go on to a downward spiral and I think we’re at critical points where if we really want to be [a successful society] we really do have to get back to those basic building blocks of really bringing the population to a situation where we have opportunities for education and all that can flow from that, btu that they are also well,” she says.
More than 80 Samoan children died from measles last year, with more than 1800 admitted to hospital. Prior to the measles epidemic, a WHO and UNICEF survey estimated just 31% of Samoan children were immunised. Prime Minister Tuila’epa has dismissed calls for an inquiry, and Fiame agrees that the timing for the call for an enquiry has “probably come and gone” but says she is concerned about the “red flags that were essentially ignored by us.
“There were two major regional health consultations last year and the message was brought strongly about the measles epidemic globally, and then the cases came up in New Zealand and of course New Zealand being much closer in proximity to us and the travel between the two countries. I think those were very serious omissions on our part and led me to question the capabilities and awareness of people should have around those red flags when they do come up and whether we should have prepared for them and all that sort of thing…I think it’s one of the things that will come up in the election.”
Fiame says the measles experience has coloured Samoa’s response to COVID-19. “Although thank goodness we are still COVID-free … they’ve come down very hard on the ability of people to move freely and to participate in economic activities to ensure their livelihood.”
Samoa’s government has just extended its State of Emergency into its seventh month and borders remain closed except to repatriation flights. A United Nations report on Samoa’s Socio-Economic COVID response plan stated that most Samoan livelihoods have been affected by the lockdowns and border closures associated with the pandemic, with two-thirds of surveyed households admitting their main income has declined and close to 50% experiencing at least one job loss due to the pandemic-related restrictions. Pre-pandemic formal employment rates were already low in Samoa, and the UN states: “With no tourists coming to Samoa anymore and most of the regional and global value chains that Samoa’s businesses could access being now disrupted, the joblessness and income insecurity have most likely created new poverty, up from the 22% rate prior to the crisis.”
Fiame says the impact on businesses and livelihoods has been exacerbated by restrictions on trade and movement on Sundays.
“We’ve also introduced the Sunday ban , the observance of the Sabbath and that is having an extra impact, especially on the hotel sector, [and] an impact on the travel between islands, especially the two main islands Upolu and Savaii. They are dependent on government shipping to get between the two islands, and they are not able to return on Sundays, so the Monday loading is very heavy now and it gets a bit heated with people trying to get on the boat to get to Upolu for work or school after the weekends. These are some of the concerns. Now they’ve loosened up a bit on the retailing, on the restaurants and bars and so forth…but they’re still very insistent on keeping the numbers low.”
Samoans in the region and abroad
Sectors of Samoa’s diaspora have also been vocal on the lands and titles issue. That diaspora, which numbers well over 129,000 according to the International Labour Organisation, has a huge role to play in Samoa’s development believes Fiame. Remittances are critical to Samoa’s economy, providing about 15% of GDP in ‘normal’ years. The World Bank estimates remittances to Asia and the Pacific will fall by 11% this year due to COVID-19 and Pacific nations have called for a moratorium on remittance transfer fees to reduce the burden of the pandemic.
“The remittances and so forth, that is no small thing,” Fiame says. “Remittances have kept our books balanced for as long as I can recall. Not only that, but they provide that social security for families that governments are not able to provide… So [the diaspora] does have a big [role.] And of course when you talk about their land and their title, it’s close to every Samoan’s heart so they are very active in the discussions and debates.
“And also the diaspora now living in countries where there’s robust democracies and processes are transparent and accountable and so forth of course; they have a level of expectation of governments which perhaps local populations aren’t at.”
As Samoa’s education minister for 15 years, and six years as Chair of the University of the South Pacific Council, Fiame has strong views on the ongoing problems at USP.
“I am a strong believer in regionalism, especially because of the nature of our region being smaller countries, that it just makes sense for us to work together, especially in key areas like education. And unfortunately, I’ve always felt like USP was one of the more successful regional undertakings but I see it sort of fading away, so I’m very concerned about that.
“There is a sense too, there’s a pendulum thing with us in the Pacific, sometimes we talk a lot about regionalism but I don’t think we’ve still been able to demonstrate that we can do it and do it well.”
“I’m a bit concerned about Samoa’s role in the region,” Fiame continues. “I think as we have a leader who has been there for a long time, he has gained seniority and to large extent he has demonstrated good leadership but unfortunately, and I don’t know if it is my personal bias at the moment, but I think there’s been a regression, especially around governance issues, democracy and those things. I’m not quite sure why this is happening. I don’t know if it is a political thing that we’re playing the ‘custom and tradition card, you understand how that happens at times, but I think when governments start to move away from the rule of law, and I think we’ve been pretty good as country that has been independent for close to 60 years, what’s our track record, are we acuall6y able to build on the benefits of democratic and rule of law? Sadly I’m seeing a bit of regression in my country, and it’s a bit of a worry.”
Fiame has spent her entire political career with the HRPP and says her decision to leave its fold and the government has led her to reflect about her time with the establishment.
“I was there right from the start of the HRPP, even before I became a member of parliament and I think it’s when you lose focus about why you started what you wanted to do. I’ve been reflecting on this, and I think when the problem began to happen is when it became more about staying in power, rather than actually following through the commitment to development goals. You can set the macroeconomics and that sort of thing but if you don’t work on the units, the human units, if you don’t work on that to make sure there are people to do it, then it won’t happen, and I don’t think we’ve been able to do that.”
She says there’s a generation now in Samoa that doesn’t know anything else but HRPP, and that with such a commanding majority, it’s difficult to have other voices come in. “It’s also the particular style of the leader; he’s not only the leader but he is the spokesperson for government, so you really don’t get to hear anyone else but him. So it’s a concern, not only in terms of the voices being heard, but now the issue is around that absolute power. Because essentially that’s the situation, and you know the quote on absolute power, don’t you?”
Will Fiame’s gamble reap rewards in April’s election? And how does she feel about the future? “It’s a very good place to be, maybe a bit late, but not too late hopefully,” she says.
