On Monday Samoa’s Court of Appeal handed down its ruling on the Supreme Court’s appointment of  To'omata Norah Leota as Member of Parliament.

The ruling by the Court nullified the appointment of To'omata, who was sworn-in May this year as three additional women Members of Parliament, to satisfy a requirement in Samoa’s Constitution of 10 per cent representation of women in the Legislative Assembly.  

Human Rights Protection Party (H.R.P.P.) women Members of Parliament, Aliimalemanu Alofa Tuuau and Faagasealii Sapoa Feagan, appealed the decision of the Supreme Court and together with their party were the appellants in the matter. 

An article (Court slashes women numbers in parliament) in the Tuesday 15 November 2022 edition of the Samoa Observer reported on the judgement of the High Court bench, which culminated with To'omata’s disqualification as a Member of Parliament.

“We declare that no additional member should have been sworn in, and the swearing in of To’omata Norah Leota was invalid,” the Court of Appeal concluded. 

“We declare that To’omata Norah Leota is not a member of the Legislative Assembly. 

“The cross appeal is dismissed.” 

The matter was presided over by Acting President of Court of Appeal, Justice Rhys Harrison alongside Justice Asher, Justice Sir William Young and Justice Tafaoimalo Leilani Tuala-Warren.

The ruling by the High Court bench did not shift the balance of power in the country’s Legislative Assembly, as the Fa’atuatua i le Atua Samoa ua Tasi (F.A.S.T.) party’s numbers just dropped by one to 31 seats and thus maintain its majority, versus 20 who remain members of the H.R.P.P. (following the resignations of Ale Vena Ale and Tu'u'u Anasii Leota last week to become ‘independent members’).

However, if there is one thing, the High Court’s decision does put the spotlight again on Article 44 of the Constitution specifically s44(1A) through to s44(1G) pertaining to women Members of the Legislative Assembly and the application of 10 per cent clause following a general election.

One question that should now be asked following the Court of Appeal’s ruling on Monday is whether that particular provision in Samoa’s Constitution has outlived its purpose after the constitutional amendments were first introduced?

The Court of Appeal revisited the Constitution Amendment Act 2013 in its 19-page judgement: “An Act to amend the Constitution of the Independent State of Samoa to provide for a minimum number of women Members of Parliament, and to exclude officers and employees of the Attorney General from the Public Service. [25 th June 2013]”

It has been close to a decade since the constitutional amendments were first introduced and those provisions have opened the door to the appointment of three women legislators over the last six years following the 2016 General Election and the 2021 General Election.

Fa'aulusau Rosa Duffy-Stowers, who was an unsuccessful candidate for Gagaifomauga No. 3 seat in the 2016 polls, became the first woman M.P. to  enter the Legislative Assembly at that time using the new constitutional provisions. She joined four other women Members of Parliament who were elected directly into the parliament in the 2016 election. 

Following last year’s general election, it was Aliimalemanu and Faagasealii from the H.R.P.P. (and To'omata from the F.A.S.T. party until the Court of Appeal’s decision on Monday). The duo joined four other women Members of Parliament who were elected directly into the parliament in the 2021 election.

So excluding To'omata how do you think these two women Members of Parliament from the former ruling party fared as legislators of the House, following their appointments using these constitutional provisions to increase women representation?

It is early days to make an objective assessment on the performance of Aliimalemanu and Faagasealii in the current parliamentary term. Their performance as legislators should be measured at the end of their parliamentary term, and citizens have a right to question whether the parliamentary gender quotas have added value to their lives and the different constituencies they’ve represented over their five-year parliamentary term.

We are reminded of the comments in May this year by the Finance Minister and one of four women Members elected last year, Mulipola Anarosa Ale-Molioo, who was critical of the 10 per cent parliamentary gender quota.

“With our current term in parliament, it’s such a massive achievement for me as a female, to have to work alongside the first female Prime Minister of Samoa and it’s a significant enrichment for my journey as well,” she said.

“However, I did not make it this far through the ten percent quota as I fought my way through just like how male politicians did.”

Last month the Samoa Umbrella for Non-Governmental Organisations (SUNGO) called for the 10 per cent women parliamentary quota to be abolished and a return to the period in Samoan political history when there were equal opportunities for men and women to contest the seats in their respective constituencies. 

The suspended Lepa M.P. Tuilaepa Sa'ilele Malielegaoi, whose Administration introduced the constitutional amendments in parliament in June 2013 and got passed, has condemned the call by the SUNGO for the constitutional provisions to be abolished. 

But looking at the concerns that Minister Mulipola raised in May this year, citizens should ask whether this pathway into the Legislative Assembly to increase women representation remains relevant today or has outlived its purpose, when the voting population has in the last two general elections consistently voted for four women Members of Parliament into the legislature?

There is no doubt that the current Government will need to revisit the constitutional provisions following the Court of Appeal’s decision on Monday. Key concerns are the wording of the specific subsections and giving more clarity to the process of appointing more women Members of Parliament.  

The Commission of Inquiry (COI) into electoral matters announced early this year should have also captured feedback from the public on this issue with the recommendations to be forwarded to the Government for implementation to improve Samoa's next general election. 

Work needs to start in the Government on getting this right before preparations begin for the next general election. The leaders owe it to the people, if the country is to avoid this issue potentially becoming another flashpoint of disharmony, immediately following a general election.