Commentary: Samoa Women's Bill flawed? Anxiety over Samoan Women's Bill for Floating Five Reserved Seats


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05 February 2012

The move by the Government to make lawful a minimum of five women members in Parliament by amending the Constitution is being strongly contested. Member of Parliament for Gagaemauga No.2, Levaopolo Talatonu, is one of those who is strongly opposed to the move. He told the Sunday Observer the move is HRPP’s way of following orders from the United Nations Organization (U.N.O.).  He said the Samoan government feels obliged to take this action since it has failed to meet one of the aims of the Millennium Development Goal (MDG) 3: Promote Gender Equality and Empower Women, which is to have at least 30 percent women representation in politics and governance by 2015. 

Today in Samoa’s 49-member Parliament, only two MPs – or 4.9 per cent - are women. Samoa therefore cannot meet the U.N.’s 2015 deadline even if it dearly wants to, since its next elections are in 2016. Many observers therefore believe the move to change the Constitution for this purpose is inherently flawed. They are of the opinion that such a move should be inspired by a legitimate concern that making the amendment part of the law would benefit the country as a whole. 

And yet there are complications.

First, not all villages allow women to hold matai titles, and yet only matai can stand as electoral candidates. Second, a legal opinion says what the government is proposing can be done without amending the Constitution. Article 15(3)(b) of the Constitution has the legal authority to bring into force the government’s proposal. However, the government has announced it is tabling the Bill in Parliament in March 2012.

But whether the issue of many women not being allowed to become MPs by the Samoan culture will have been addressed by then, is not clear.
And if not, those women’s basic rights such as their freedom to express their opinions and choose whether or not to run for Parliament, are most likely to be ignored. It is most likely therefore that they cannot even dream of becoming parliamentarians one day. That is not all. 

Aside from the non-bestowal of matai titles, certain villages that allow women to hold matai titles ban them from taking part in local government. This is to say they are not allowed to attend the meetings of Village Councils. One of those villages is Malie, according to the Minister for Justice, Courts and Administration, Fiame Naomi Mata’afa

“I think Malie used to [disallow women matai],” she said. “But now they allow women to hold titles but they can’t sit in the village council. 
“So [while] they allow them in the family context to be active matai, when it comes to Village Council meetings they don’t allow them.”

Under the Electoral Act section 5 (3A) a woman matai’s prospect of standing as an electoral candidate is virtually nil. That clause defines “village service requirements” as “the services a matai renders to his or her village in accordance with the customs of that particular village.” Here is a possible scenario.

The Village Council may not allow their women matai to stand as candidates because if one of them wins, then the customs of the village may need to be changed so she can sit in the Village Council when it meets. Otherwise a comical situation arises where she occupies a seat in parliament but is not allowed to sit in her Village Council. The Electoral Act already has the legal power to stop these women matai from standing. It is contained in Section 5 (c, (i)) where the Pulenu’u holds the authority “to stop the woman matai” by not signing Statutory Declaration Form 1D himself. It follows that failure to sign Form 1D means the Electoral Commissioner cannot endorse the candidacy. 

Such was the case leading up to the 2011 general elections that disqualified Leota Ituau Ale (Anoamaa West), Tuula Kiliri (Lepa) and Tafilipepe Asalemo from running in the elections. In January 2012, the government’s move to reserve 10 percent of parliament for women was confirmed by Prime Minister, Tuilaepa Sailele Malielegaoi. He told Radio Australia that for his government to make this happen, a change in the Constitution was required. “We have decided to amend our Constitution and all related laws to simplify the procedure and put in place a formula that will secure at least ten percent of the seats in the house for women,” he said.

And yet the changes being sought are already possible without changing the Constitution. They can be made by invoking Article 15(3)(b) of the Constitution. Meantime a Commission of Inquiry (COI) into the Electoral Act is underway. Informed sources say “the Constitutional Amendment does not cover villages that do not allow women to hold matai titles. It was not part of the Terms of Reference and it’s a complicated issue.” They confirm that “[the flaw] is also not covered in the COI on the Electoral Act.”

However, according to Fiame, the issue of non-matai bestowal on women by certain villages, and the banning of women matai from sitting in their respective Village Councils, could be challenged through the Justice System. 

“I think if someone should challenge it in court,” she told the Samoa Observer during an interview in June last year. “It would be quite a sensational issue. “I think those villages will be very hard-placed to put forward a case.”

But for Opposition MP, Levaopolo Talatonu, the ‘10-percent women in parliament’ proposal by Tuilaepa’s government is wrong and unfair.
He says the current Electoral Act as it is, is fair to both genders. “Under the current Electoral Law, men and women have a level playing field to compete for seats in Parliament. But if the amendments the government is pushing go through then we have very uneven and unfair elections. “It means the men have one chance to be elected while women have two chances. That is very unfair, in fact it’s undemocratic.”

The system proposed by the government is for a floating five seats reserved for women. How it works is that if no woman wins during the elections then the amendment is activated and five seats are added. This will mean a Samoan parliament with a total of 54 seats. If one woman is elected then four seats are added and parliament has 53 seats. 

If two, then three extra seats are added and parliament will have a total of 52 seats, and so on until five women have won. This way, no extra seats are added, and parliament has 49 seats. When extra seats are added, they are filled by women who run in Territorial Constituencies. 

At the end of the elections, they are ranked not by the number of votes, but by the percentage of votes. This criteria is also unfair because it reduces the number of constituencies for women candidates, in the hope of getting through the ‘floating seats’ option. It means women candidates from smaller constituencies like Lepa and Lotofaga, have clear advantages when they are pitted against women running from the larger constituencies such as Falealili or Vaimauga, who will have smaller percentages of votes.

If the system was in force at the 2011 elections where Fiame Naomi and Gatoloaifaana Gidlow were the only women winners, there would have been three additional seats in Parliament. From the 2011 results, that meant Fuimaono Te’i who tallied the most votes out of the losing women would actually miss out as her percentage of 19 ranks her fourth.

The top two women would have been Lemana Tapuai Logo (21%) of Aana Alofi No.2, Safuneituuga Neri of Gagaifomauga No.2 (20%). They would now be in a parliament with a total of 51 seats. A scenario to which MP Levaopolo offers a comment. He says: “The extra cost of those female MPs will be paid for by taxpayers,” he said. “And yet the additional female MPs are to satisfy a U.N. requirement, not that of our people’s.” 

“The point I’m contesting is not the number of women MPs in parliament. That’s not important. What’s important is maintaining the transparency, integrity, and our traditions in the electoral process.” He he is of the opinion that the move by Tuilaepa is twofold. “First, the United Nations is behind the push, and my concern is that if it’s left unopposed, it will lead to Samoa’s traditional form of government becoming lost eventually. “It’s an indication we’re going backwards to the days before Samoa became independent,” he explained. “We’re supposed to be celebrating our 50th Independence anniversary, [and yet it now seems] it’s a celebration of Samoa going backwards. “Because instead of controlling our destiny through our own unique traditional ways, it’s the UN which is calling the shots and the HRPP is sucking up to them.” 

“Democracy is taking over Samoa’s traditional pule on which our parliament is founded. “That foundation,” he said, “is based on the authority and decision-making for the village vested with the chiefs and orators.” “It is one of the reasons I believe women are finding it difficult to win in the elections. “Because in our traditional village governments, there are separate houses where men meet to make the decisions, from the houses where women meet to support and carry out those decisions.  “So it is very clear that if we are going to go down this road, then the HRPP is helping the United Nations destroy the very foundation of our Samoan culture, and traditions.”

The second reason Levaopolo said, “is political motivation so the HRPP stays in power at the next election.” “The PM is looking for additional ways to secure numbers for the next election because all the women will go to the H.R.P.P because he will make a big song and dance that he’s the one who put it through.” “Why else is he pushing for this when last year he was against the whole thing?” Levaopolo says, “What the PM said was repeated by his minister, Tolufuaivalelei Leiataua [Minister for Women and Community Development] in March last year.”

Back in March 2011, Tolufua said he was not in favour of a quota set aside for women in Parliament.  “This [quota] happens in other Pacific countries like Papua New Guinea. But, it doesn’t remove the opinion they are still viewed as second-class citizens. So in Parliament deliberations they are not considered full members because they have been selected and were not elected.

“So from my experience, if this happens in Samoa, it will not last.  Prime Minister Tuilaepa says every woman has a right to enter politics but through election. It means they are elected through merit and if in the elections we have 49 women winning it means Samoa’s Parliament is run by women. Then so be it.”

Fiame Naomi agreed with Tolufua about a quota system. She explained the difference between a quota system and the one proposed by the HRPP. Samoa is proposing an amendment to the Constitution to ensure a 10 percent base representation by women. It is not by quota because it is done by bringing in women who stood as candidates (but were not successful). They will fill the 10 percent if there are not enough elected women after the electoral returns.” She said her opposition to a quota system is based on observations of the Bougainville situation. “They [women] are provided special seats [in the Bougainville parliament] and there was an interpretation that the women couldn’t run for the normal seats. 

So because they were slotted into these three seats, the perception by everyone, including the women, is that they were not allowed to run for the other seats. That, that was the only thing available to them, which I think is dangerous.” She does not agree with Levaopolo or the comment by Tolufua that women must be elected on merit. “They are missing the point,” she said. “The fundamental issue surrounding democracy and gender is about the low rate of participation by women. It really undermines the basic principles of democracy where half of the population is so underrepresented,” she argued. “But to be fair, the whole question of how many women run in the first instance goes back to the point, what would impede a woman from running?” 

“In Samoa there are quite a number of those things,” she conceded. She agrees with informed sources regarding the flaw in the proposed Bill and the difficulties facing women who aspire to be parliamentarians. “At the end of the day, like anything else, people might have all the rights that they can claim but if implementing them makes it difficult for them to live where they live, then it really comes down to that choice,” says Fiame.  “So unless you’re making a considered choice that you want to be a parliamentarian, then you need to get a title from a place where you are able, and you move there to live. It just means the choice for a woman [to enter politics] is harder than it is for a man.”

INFORMATION
Women representation in Samoa’s parliament is 4.1 percent ranking it 125th of 136 nations. The best performed Pacific country is New Zealand ranking 21 (32.2%), Australia 39 (24.7%) and Kiribati 109 (8.7%). Others Pacific nations listed are Tonga (3.6%), Vanuatu (1.9%), Federated States of Micronesia (0), Nauru (0), Palau, (0) and Solomon Islands (0).

The United Nations reason for pushing the 30 percent representation threshold is it represents a critical mass to effect change.

It considers the active involvement of women in political decision making as crucial in global attempts to eliminate poverty. In part because national decisions made by parliaments are less likely to address the concerns of women when women are under-represented in parliament.

THE CONSTITUTION OF THE INDEPENDENT STATE OF SAMOA
PART II: Fundamental Rights

Article 15: Freedom from discriminatory legislation
(3) Nothing in this Article shall:

(a) Prevent the prescription of qualifications for the service of Samoa or the service of a body corporate directly established under the law; or
(b) Prevent the making of any provision for the protection or advancement of women or children or of any socially or educationally retarded class of persons.

[Samoa Observer Aigaletaule’ale’a F. Tauafiafi in Auckland] 

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