Three weeks after Samoa went to the polls, and two weeks after the results were finalised, 28 candidates have filed petitions against the winners in their constituencies and are hoping to unseat their opponents. 

Samoa Law Society President Leiataualesa Komisi Koria explained that in the next week, Samoa could see up to 28 counter petitions filed by each of the Members-elect being petitioned against. 

And while the Supreme Court has no formal deadline for processing and deciding on these 28, possibly 56 petitions, he expects this to happen within a reasonable time. 

“The Court does not have a statutory deadline for determining the petitions. However the court is required under the law to give priority to electoral matters,” he said.

“The law recognises that the public interest is in finalising the results of the general elections as quickly as possible, and our Supreme Court has never failed to discharge its responsibility under the law. 

“The public can absolutely expect the Supreme Court to determine all of the election petitions within a reasonable time and with impartiality and fairness, fully independent from outside influences.”

Samoa’s next Parliament is currently in a seemingly unbreakable deadlock, with 26 seats each won by the Human Rights Protection Party (H.R.P.P.) and Fa’atuatua i le Atua Samoa ua Tasi (F.A.S.T.).

While some, including HRPP leader and caretaker Prime Minister Tuilaepa Dr. Sailele Malielegaoi have called for an entirely new election to break the tie, the Clerk of the Legislative Assembly has recommended allowing the petitions to take their course and for their inevitable by-elections to play their part in shifting the balance of power. 

Once those decisions are made, there is no reversing them, Leiataualesa explained.

“There is no right of appeal from the decision of the Supreme Court on an election petition.

“The reason for this is expedience. An appeal process would prolong the whole process of elections. 

“However, the make-up of the Supreme Court bench is different for election petitions. Instead of having one Judge sitting alone, the Supreme Court must sit with two or more judges who will decide each matter.”

From there, the next Parliament may be short a number of members, and the Electoral Commissioner will be instructed to “supply the vacancy,” or trigger a by-election and the electorate will be asked to vote again. 

The Electoral Act 2019 explains that it is the role of the Speaker to declare a seat vacant and make that call to the Commissioner. 

It appears to operate on the basis that Parliament is sworn in after the General Election results are declared, which in the current deadlock is not possible and neither party is in the position of electing a Speaker or Deputy Speaker

One way to break the tie is for the courts to set aside a decision by the Office of the Electoral Commissioner to introduce a 52nd member into the House using a Constitutional provision to ensure women are represented in Parliament.

If that decision, brought to the Supreme Court by F.A.S.T., is reversed, then the F.A.S.T. party will have the majority and can approach the Head of State to form the Government.

But if not, Samoa remains in limbo.

When petitions reach the Supreme Court after Mother’s Day, the three Supreme Court justices appointed to each case will be asked to decide if the Member-elect is guilty of a corrupt practice.

“To succeed in a petition, the petitioner must present evidence that the successful candidate engaged in ‘corrupt practices,’ a term which is defined in the Electoral Act as, bribery, treating or personation,” Leiataualesa said.

“So the petitions will mainly involve the presentation of evidence demonstrating that these activities were carried out before, during or after the elections.”

Personation refers to the act of voting in someone’s place, either living, dead, or made up, or voting twice. The Electoral Commissioner may also seek to lay charges against anyone suspected of doing this.