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Samoa Human Rights - History

Samoa Human Rights - History


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Samoa Human Rights 2017 Report April 2018

Samoa is a constitutional parliamentary democracy that incorporates traditional practices into its governmental system. In 2016 voters elected a new parliament, confirming Prime Minister Tuilaepa Sailele Malielegaoi in office. Although the unicameral parliament is elected by universal suffrage, members may only be “matai” (heads of extended families). The elections were free and fair on the day, but the matai requirement and the questionable disqualification of candidates caused some observers to question the fairness of the outcome.

Civilian authorities maintained effective control over the security forces.

The most significant human rights issues included: limits on non-matai rights to participate in political processes; domestic violence; child abuse; criminalization of sexual activity between men, although the law was not enforced; and child labor.

The government took steps to prosecute officials who committed abuses. There were no reports of impunity.

A. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings

There were no reports the government or its agents committed arbitrary or unlawful killings.

B. Disappearance

There were no reports of disappearances by or on behalf of government authorities.

C. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

The constitution prohibits such practices, and there were no reports government officials normally employed them. There were allegations of abuses by some individual police officials, such as the use of physical violence towards detainees.

Prison and Detention Center Conditions

Overall prison conditions were harsh and remained below international standards.

Physical Conditions: The Tafaigata men’s prison was overcrowded with more than 300 inmates in a facility with an official capacity of 260. Pretrial detainees were held together with convicts. Authorities made only basic provisions for food, water (including potable water), and sanitation. Cell lighting and ventilation remained poor. Lights remained on all night.

Physical conditions in the separate Tafaigata women’s prison, including ventilation and sanitation, generally were better than in the men’s prison. Authorities housed juveniles (younger than 26 years) at the Olomanu Juvenile Center, where physical conditions generally were better than in adult facilities.

Police held overnight detainees in two cells at police headquarters in Apia and one cell at Tuasivi.

One male Tafaigata prisoner committed suicide by hanging in August, according to prison officials. The family disputed the claim, citing a number of bruises, cuts, scrapes, and swelling over several parts of the prisoner’s body.

Administration: The prison system faced challenges in its ability to account for all inmates. This was evident in the recurring prison escapes and delays in recapturing escapees.

Authorities permitted prisoners and detainees to submit complaints to judicial authorities and request investigation of alleged problematic conditions. Authorities investigated such allegations, documented them, and made the results publicly accessible. The government generally investigated and monitored prison and detention center conditions.

Independent Monitoring: The government permitted monitoring visits by independent human rights observers, including UN organizations and diplomatic missions.

Improvements: In September construction began on a new main prison facility to replace Tafaigata.

D. Arbitrary Arrest or Detention

The constitution prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his/her arrest or detention in court, and the government generally observed these requirements.

ROLE OF THE POLICE AND SECURITY APPARATUS

The Samoa Police Department, under the Ministry of Police and Prison Services, maintains internal security. Local councils enforce rules and security within individual villages. Civilian authorities maintained effective control over police, and the government has effective mechanisms to investigate and punish abuse and corruption. There were no reports of impunity involving police. Insufficient capacity limited police effectiveness.

ARREST PROCEDURES AND TREATMENT OF DETAINEES

The Supreme Court issues arrest warrants based on compelling evidence. The law provides for the right to a prompt judicial determination of the legality of detention, and authorities generally respected this right. Officials informed detainees within 24 hours of the charges against them, or else released them. There was a functioning bail system. The government allowed detainees prompt access to a lawyer of their choice. The government provided indigent detainees with a lawyer upon request. The government did not hold suspects incommunicado or under house arrest.

Detainee’s Ability to Challenge Lawfulness of Detention before a Court: Persons arrested or detained are entitled to challenge in court the legal basis or arbitrary nature of their detention and obtain prompt release and compensation if the court finds authorities unlawfully detained them.

E. Denial of Fair Public Trial

The constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality.

TRIAL PROCEDURES

The constitution provides for the right to a fair public trial, and an independent judiciary generally enforced this right. A trial judge examines evidence and determines if there are grounds to proceed. Under the law, defendants are presumed innocent and may not be compelled to testify or confess guilt. Trials are public except for trials of juveniles; in such trials only immediate family members may attend. Defendants have the right to be present at their trial; have timely consultation with an attorney; receive prompt and detailed information of the charges, including interpretation services as necessary from the moment charged through all appeals; and to have adequate time and facilities to prepare a defense. Defendants may confront witnesses, present witnesses and evidence on their own behalf, access government-held evidence, and appeal a verdict. The law extends these rights to all citizens.

Village councils handled many civil and criminal matters, but the councils varied considerably in decision-making styles and the number of matai involved in decisions. The law recognizes the decisions of the local council and provides for limited appeal to the Lands and Titles Court and the Supreme Court. The nature and severity of a dispute determines which court receives an appeal. Defendants may make a further appeal to the Court of Appeal. A Supreme Court ruling stipulates that local councils may not infringe upon villagers’ freedom of religion, speech, assembly, or association. Village councils, however, consistently ignored this ruling.

An amendment to the law on village councils in January sought to ensure that the powers exercised by the village council are in line with the constitution. The amendment provides more detail on what is a punishable offense and steps to be taken to carry out a punishment.

POLITICAL PRISONERS AND DETAINEES

There were no reports of political prisoners or detainees.

CIVIL JUDICIAL PROCEDURES AND REMEDIES

Individuals or organizations may seek civil remedies for human rights violations through the courts.

F. Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence

The laws prohibit such actions, and there were no reports that the government failed to respect these prohibitions. There was little privacy in villages, where there could be substantial societal pressure on residents to grant village officials access to their homes without a warrant. There were reports some village councils banished individuals or families from villages.

A. Freedom of Expression, Including for the Press

The law provides for freedom of expression, including for the press, and the government generally respected these rights. An independent press, an effective judiciary, and a functioning democratic political system combined to promote freedom of speech and press. The law stipulates imprisonment for any journalist who, despite a court order, refuses to reveal a confidential source upon request from a member of the public.

Censorship or Content Restrictions: A 2012 law on tourism development authorizes the Samoa Tourism Authority (STA) to exercise “lawful controls” over publication by any person of information about the tourism industry deemed prejudicial to the public perception of the country. Violators are subject to a fine or maximum imprisonment of three months if they fail to retract the information or to publish a correction when ordered to do so by the STA. The STA did not exercise this authority during the year.

INTERNET FREEDOM

The government did not restrict access to the internet or censor online content, and there were no credible reports the government monitored private online communications without appropriate legal authority. Internet access was widely available in most of the country via cellular technology, but the high cost limited internet access for much of the population outside the capital.

ACADEMIC FREEDOM AND CULTURAL EVENTS

There were no government restrictions on academic freedom or cultural events.

B. Freedoms of Peaceful Assembly and Association

The constitution provides for the freedoms of assembly and association, and the government generally respected these rights.

D. Freedom of Movement

The constitution provides for freedom of internal movement, foreign travel, emigration, and repatriation and the government generally respected these rights.

PROTECTION OF REFUGEES

Access to Asylum: The law provides for granting refugee status, but the government has not yet established a system for providing protection to refugees. There were no requests for refugee status.

The constitution provides citizens the ability to choose their government in free and fair periodic elections held by secret ballot and based on universal and equal suffrage.

Elections and Political Participation

Recent Elections: Observers considered the general election held in March 2016 to be fair. The Human Rights Protection Party retained government control for a seventh consecutive term, winning 47 of 50 seats. The Tautua Samoa Party controlled only three seats, not enough to form an official opposition. Following the election, plaintiffs filed six electoral petitions with the Supreme Court on grounds including bribery, treating, and gifting during the campaign. Of the six, five were withdrawn and the court dismissed one for lack of evidence. Bribery, village pressure, and the threat of countersuits were reportedly cited as reasons for petition withdrawals.

Political Parties and Political Participation: The constitution gives all citizens older than 21 years the right to vote; however, only persons with a matai title, the 17,000 chiefly leaders of extended families, may run for parliament or serve on village councils. Matai were appointed, not elected, to the councils.

In addition to the restrictions favoring matai, the 2016 election was the first since parliament passed an electoral amendment requiring all candidates to satisfy a three-year period of monotaga (services rendered through participation and physical contributions) in their respective village(s) to be eligible to run in the elections. The law sought to ensure that candidates fulfilled cultural and other commitments to their village and could not just use their matai status or make large, last-minute contributions to their villages to garner votes. The amendment led to a number of court petitions and the disqualification of five candidates deemed not to have met the monotaga requirement. The cases exposed deficiencies in the amendment since monotaga is ill defined and can mean different types of service (or exemption from service for certain matai) in different villages. Such subjective disqualifications were seen by some as human rights abuses.

Participation of Women and Minorities: No laws limit participation of women and/or members of minorities in the political process, and they did participate. Four women won seats in parliament outright in 2016. A 50th seat was added to parliament to ensure that the constitutionally mandated 10 percent female representation in parliament was observed. The seat went to the unsuccessful woman candidate with the highest percentage of votes in her constituency. Although both men and women may become matai, only 10.5 percent are women. Of the five female members of parliament, the ruling party appointed Fiame Naomi Mataafa deputy prime minister, a first for the country.

The law provides criminal penalties for corruption by officials, and the government generally implemented the law effectively. The maximum penalty for corruption is 14 years’ imprisonment. There were reports of government corruption.

The law provides for an ombudsman to investigate complaints against government agencies, officials, or employees, including allegations of corruption. The ombudsman may require the government to provide information relating to a complaint. The Attorney General’s Office prosecutes criminal corruption cases on behalf of the Public Service Commission. The Ombudsman’s Office and the Public Service Commission operated effectively. The Ombudsman’s Office included academics and other members of civil society among the members of its commissions of inquiry.

Corruption: There was public discontent throughout the year at significant delays in the submission of annual audit reports to parliament and the lack of punitive action. For example the controller and auditor general’s reports to parliament from 2013 to 2016 were only submitted to parliament in December 2016.

Financial Disclosure: Although there are no financial disclosure laws, codes of ethics applicable to boards of directors of government-owned corporations encouraged public officials to follow similar disclosure.

A number of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were cooperative and responsive to their views.

Government Human Rights Bodies: Observers considered the Office of the Ombudsman generally effective and able to operate free from government or political party interference. The government usually adopted its recommendations. The Office of the Ombudsman also houses the National Human Rights Institute, which published the country’s first State of Human Rights Report in August 2015.

Women

Rape and Domestic Violence: Rape is illegal, but there is no legal provision against spousal rape. The penalties for rape range from two years’ to life imprisonment, but the court has never imposed a life sentence. Many cases of rape went unreported because societal attitudes discouraged such reporting. The courts treated rape seriously, and the conviction rate generally was high.

The constitution prohibits abuse of women, but societal attitudes tolerated domestic abuse. Social pressure and fear of reprisal typically caused such abuse to go unreported. Village councils typically punished domestic violence offenders only if they considered the abuse extreme, such as when there were visible signs of physical harm.

When police received complaints from abused women, authorities investigated and punished the offender, including imprisonment. Authorities charge domestic violence as common criminal assault, with a maximum penalty of one year’s imprisonment. The government acknowledged the problem was of significant concern. The Ministry of Police has a nine-person Domestic Violence Unit that works in collaboration with NGOs and focuses on combatting domestic abuse.

Sexual Harassment: No law specifically prohibits sexual harassment, and there were no reliable statistics on its incidence. The lack of legislation and a cultural constraint against publicly shaming or accusing someone, even if justifiable, reportedly caused sexual harassment to be underreported. Victims had little incentive to report instances of sexual harassment, since doing so could jeopardize their career or family name.

Coercion in Population Control: There were no reports of coerced abortion, involuntary sterilization, or other coercive population control methods. Estimates on maternal mortality and contraceptive prevalence are available at: www.who.int/reproductivehealth/publications/monitoring/maternal-mortality-2015/en/.

Discrimination: Women and men have equal rights under the constitution and statutory law, and the traditionally subordinate role of women continued to change, albeit slowly. To integrate women into the economic mainstream, the government sponsored numerous programs, including literacy and training programs.

Children

Birth Registration: A child derives citizenship by birth in the country if at least one parent is a citizen. The government also may grant citizenship by birth to a child born in the country if the child would otherwise be stateless. Citizenship also derives by birth abroad to a citizen parent who either was born in the country or resided there at least three years. By law children without a birth certificate may not attend primary schools but authorities did not strictly enforce this law.

Child Abuse: Law and tradition prohibit abuse of children, but both tolerate corporal punishment. Press reports indicated an increase in reported cases of child abuse, especially of incest and indecent assault cases, which appeared to be due to citizens’ increased awareness of the importance of reporting physical, emotional, and sexual abuse of children. The government aggressively prosecuted such cases. The law prohibits corporal punishment in schools; a teacher convicted of corporal punishment of a student may face up to a one-year prison term.

Early and Forced Marriage: The legal minimum age of marriage is 21 years for a man and 19 years for a woman. Consent of at least one parent or guardian is necessary if either is younger than the minimum. Marriage is illegal if a woman is younger than 16 or a man is younger than 18. Early marriage did not generally occur.

Sexual Exploitation of Children: Sexual abuse of children remained a problem. The minimum age for consensual sex is 16 years. Under the law the maximum penalty for sexual relations with children younger than 12 years is life imprisonment and for children between ages 12 and 15 years the maximum penalty is 10 years’ imprisonment. The law contains a specific criminal provision regarding child pornography. The law specifies a seven-year prison sentence for a person found guilty of publishing, distributing, or exhibiting indecent material featuring a child. Because 16 is the age of majority, the law does not protect 16- and 17-year-old persons.

The Ministry of Justice and Courts Administration and the Ministry of Education, in collaboration with NGOs, carried out educational activities to address domestic violence, inappropriate behavior between adults and children, and human rights awareness. In November a male schoolteacher was found guilty of raping a 13-year-old female primary school student on school grounds.

International Child Abductions: The country is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at travel.state.gov/content/childabduction/en/legal/compliance.html.

Anti-Semitism

The country had no Jewish community, and there were no reports of anti-Semitic acts.

Trafficking in Persons

There were no confirmed reports during the year that the country was a source, destination, or transit country for victims of human trafficking.

Persons with Disabilities

No law prohibits discrimination against physical, sensory, intellectual, and mental disabilities in the provision of public services. Many public buildings were old, and only a few were accessible to persons with disabilities. Most new buildings provided better access, including ramps and elevators in most multistory buildings.

There is a law against discrimination with respect to employment based on disability (see section 7.d.). Tradition dictates that families care for persons with disabilities, and the community observed this custom widely.

Some children with disabilities attended regular public schools, while others attended one of three schools created specifically to educate students with disabilities.

National/Racial/Ethnic Minorities

During the year three villages placed a ban on setting up Chinese-owned retail shops on customary land within the village. This was in response to the rapid spread of ethnic Chinese-owned retail shops throughout Apia and into rural villages. The bans apply only on village-owned land (approximately 80 percent of land in the country), not to government or freehold land.

Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity

“Sodomy” and “indecency between males” are illegal, with maximum penalties of seven and five years’ imprisonment, respectively, but authorities did not enforce these provisions with regard to consensual same-sex sexual conduct between adults.

Although there were no reports of societal violence based on sexual orientation or gender identity, there were isolated cases of discrimination. Society publicly recognized the transgender Fa’afafine community; however, members of the community reported instances of social discrimination.

A. Freedom of Association and the Right to Collective Bargaining

The law protects the rights of workers to form and join independent unions, to conduct legal strikes, and to bargain collectively. There are certain restrictions on the right to strike for government workers, imposed principally for reasons of public safety. The law states that a public-sector employee who engages in a strike or any other industrial action is considered “to have been dismissed from…employment.” The law prohibits antiunion discrimination, such as contract conditions that restrict free association. The law addresses a range of fundamental rights and includes the establishment of a national tripartite forum that serves as the governing body for labor and employment matters in the country.

The government effectively enforced laws on unionization and the government generally respected the freedom of association. The Public Service Association functioned as a union for all government workers, who made up approximately 8,000 of the estimated 25,000 workers in the formal economy. Unions generally conducted their activities free from government interference.

Workers exercised the right to organize and bargain collectively. The Public Service Association engaged in collective bargaining on behalf of government workers, including bargaining on wages. Arbitration and mediation procedures were in place to resolve labor disputes, although such disputes rarely arose.

Workers’ organizations were generally independent of the government or employers, and there were no reported violations of freedom of association or collective bargaining. There were no reports of strikes.

B. Prohibition of Forced or Compulsory Labor

The law prohibits forced or compulsory labor, and the government generally enforced such laws. There is an exception in the constitution for service required by local custom. A key feature of the matai system is that non-matai men perform work in their village in service to their families, church, or the village as a whole. Most persons did so willingly, but the matai may compel those who do not wish to work.

The law states that forced labor is punishable by imprisonment. Aside from this cultural exception and street vending by children, forced labor was not a major problem. The Ministry of Commerce, Industry, and Labor (MCIL) received no complaints and found no violations of forced labor during inspections conducted during the year. Penalties were reportedly sufficient to deter violations.

C. Prohibition of Child Labor and Minimum Age for Employment

The law prohibits employing children younger than 15 years except in “safe and light work.” The law does not apply to service rendered to family members or the matai, some of whom required children to work for the village, primarily on family farms. The law prohibits any student from engaging in light or heavy industrial activity within school hours of 8 a.m. to 2 p.m. The law restricts vending by school-age children (younger than 14 years) if it interferes with their school attendance, participation in school activities, or educational development.

There were no reliable statistics available on the extent of child labor, but it occurred largely in the informal sector. Children frequently sold goods and food on street corners. The government has not definitively determined whether this practice violates the country’s labor laws, which cover only persons who have a place of employment, and local officials generally tolerated it. The problem of child street vending attracted significant media coverage and public outcry.

The extent to which children had to work on village farms varied by village, although anecdotal accounts indicated the practice was common. Younger children primarily did yard work and light work such as gathering fruit, nuts, and plants. Some boys began working on plantations as teenagers, helping to gather crops such as coconuts and caring for animals. Some children reportedly had domestic service employment.

Also see the Department of Labor’s Findings on the Worst Forms of Child Labor at www.dol.gov/ilab/reports/child-labor/findings/.

D. Discrimination With Respect to Employment and Occupation

The law prohibits discrimination, direct or indirect, against an employee or an applicant for employment in any employment policies, procedures, or practices based on ethnicity, race, color, sex, gender, religion, political opinion, national extraction, sexual orientation, social origin, marital status, pregnancy, family responsibilities, real or perceived HIV status, and disability.

The government effectively enforced the law. The MCIL received no complaints regarding unfair hiring practices. The hiring and recruiting process for the private sector is outside of the scope of the Labor and Employment Relations Act. No cases drew public attention.

E. Acceptable Conditions of Work

There were two minimum wages, one for the private sector and one for the public sector. Both minimum wages were below the official estimate of the poverty income level for a household. Approximately 75 percent of the working population worked in the subsistence economy and had no formal employment.

The law covers private- and public-sector workers differently. The law stipulates a standard workweek of a maximum of 40 hours, or eight hours per day (excluding mealtimes), and prohibits compulsory overtime. For the private sector, the law specifies overtime pay at time and a half, with double time for work on Sunday and public holidays, and triple time for overtime on such days. For the public sector, there is no paid overtime, but authorities give compensatory time off for overtime work. There are generally nine paid public holidays per year.

The law establishes certain rudimentary safety and health standards for workplaces, which the MCIL is responsible for enforcing. The law also covers persons who are not workers but who are lawfully on the premises or within the workplace during work hours. The 2014 Occupational Safety and Health Regulations Act contains provisions for the identification, assessment, and risk control for workplace hazards and hazardous substances, but it does not contain a list of hazardous occupations or work.

Safety laws do not generally apply to agricultural service rendered to the matai or work in a family enterprise. Government employees have coverage under different and more stringent regulations, which the Public Service Commission enforced adequately.

Independent observers reported that the MCIL did not strictly enforce safety laws, except when accidents highlighted noncompliance. It investigated work accidents when it received reports. The penalties and the number of inspectors were generally sufficient to deter violations.

Many agricultural workers had inadequate protection from pesticides and other dangers to health. Government education and awareness programs addressed these concerns by providing appropriate training and equipment to some agricultural workers.

The Ministry of Labor investigates any potential labor law violations in response to complaints. Other relevant government ministries can assist if needed.

The commissioner of labor investigates reported cases of hazardous workplaces. Workers are legally able to remove themselves from situations that endanger health or safety without jeopardy to their employment. The MCIL received reports of 19 work-related accidents during the year, one of which was a fatality.


Blog of the week: Samoa makes human rights history with inquiry into family violence

Samoa’s National Human Rights Institution (NHRI) was established in 2013. It is fully compliant with the Paris Principles and is thus an ‘A’ accredited NHRI, the only ‘A’ accredited institution among the Commonwealth Pacific island states. With a mandate to protect and promote human rights in Samoa, one of its functions is to inquire into widespread, systemic or entrenched situations or practices that violate human rights. In 2014 we identified family violence as the most pressing violation of human rights in Samoa through an analysis of existing systemic human rights issues to determine priority areas of work. The analysis also showed that the best approach for such a complex systemic human rights issue would be a National Public Inquiry. The Ombudsman then chose to hold a National Inquiry as its first step in tackling the issue. A national inquiry enables a broad human rights approach and examination of a large and complex situation where the general public is invited to participate. It has both fact-finding and educational roles. This is the first such Inquiry to be held in Samoa or across the Pacific Islands of the Commonwealth.

For the purposes of the Inquiry, family violence was taken to mean any form of violence that a person experiences from another family member in a typical Samoan home, be it a nuclear or an extended communal unit. It encompasses emotional/physiological, physical, sexual and economic violence, and also includes “any other controlling or abusive behaviour where such conduct harms or may cause imminent harm to the safety, health or wellbeing of a person.”

A Commission made up of two men and two women plus the Ombudsman as Chairperson spearheaded the Inquiry on behalf of the NHRI. Their role was to hear the evidence, formulate findings for the report and draw up recommendations. Evidence for the Inquiry was collected through research, stakeholder consultations, village consultations, public and private hearings, and written submissions. We received evidence, testimony and submissions from varied stakeholders including NGOs, Government ministries, development partners, the media, survivors, perpetrators, service providers, Government officials, matais, academics, lawyers, international agencies and other interested parties.

Lack of financial resources was the first challenge we had to tackle. We needed to secure the interest and support of enough donor partners for this ambitious project to get off the ground and to achieve its aims. Our discussions with the Human Rights Unit of the Commonwealth Secretariat was very positive as their approach was that we were embarking on model and pioneering work in a small state focussed on a human rights challenge which was spread across the Pacific. We are grateful for the financial as well as technical expertise we have received from the team. Their partnership approach was not limited to the inquiry and the completion of the inquiry report – their support was pledged for the full journey inclusive of post-report follow-up engagement with various stakeholders to whom recommendations were made as well as monitoring, markers of impact and the evaluation thereof. One significant aspect of our partnership was the cost-effective way in which we engaged. It is expensive to travel to Samoa, however we kept our partnership alive through Skype calls, emails and meetings at other fora where both of us were present, such as meetings of the Commonwealth Forum of National Human Rights Institutions.

Most importantly this Inquiry would not have been possible without the bravery of the many survivors of family violence who spoke with us and shared their stories. They did so in the hope that their coming forward would lessen the likelihood of others suffering in the future. It was recognized from the outset that obtaining the evidence of witnesses was going to be challenging. This was especially so in the cases of those still in violent relationships where potential for further harm would be high. Financial assistance from partners such as the Commonwealth Secretariat was invaluable in putting in place robust strategies to encourage people to participate with confidence that they would be safe.

We were anxious for the Inquiry in its processes to abide by the do no harm principle and to avoid the possibility of any further harm being caused to survivors. We consulted with family violence experts, survivors and perpetrators in formulating an approach which included both public and private hearings for vulnerable witnesses. Networking and partnership played a critical role in the process. We worked with Government service providers, including the Domestic Violence Unit of the Ministry of Police, and NGOs working in the family violence sector. The Office consulted with family violence experts, survivors and perpetrators in developing an approach to the public hearings to ensure no further harm to survivors was caused. In some cases, it was not possible to hear vulnerable witnesses in public without risking further harm so closed hearings were also held to ensure the safety of those giving evidence.

Members of the public and survivors spoke to the Inquiry not only on the ugly realities of family violence, but on embedded perceptions and attitudes that continue to persist. It was disconcerting to hear in some instances assertions from village sources that everything was well in their villages (e.g. “our village is very peaceful, we hardly have any issues of violence in our village”) when the truth clearly was otherwise. Hard evidence points to numerous cases of family violence occurring in homes and in villages with habitual silence and ignorance, overwhelming individual inclination to seek help or to report violations.

The Inquiry was able to confirm family violence in Samoa to be very real and spiralling out of control. Reassuringly, it also found overwhelming consensus calling for concerted action to be taken within the communities through their traditional leaders and their institutions and the churches under the leadership of the national Government.

Eighty-five per cent of Inquiry survey respondents believe family violence to be a priority issue that should be addressed. It is this consensus which provides the mandate for change, to which Samoa’s political, traditional and religious leaders should take heed. While this overwhelming majority wishes for family violence to be addressed as a priority, there was an obvious lack of understanding of the underlying causes of violence, with many women survivors blaming themselves for acts of violence towards themselves and their children. This suggests a situation in Samoa where awareness raising efforts to date have succeeded in generating support for change, but we still have a long way to go in making people understand the root causes, why violence proliferates, and what needs to be done to combat it. The Inquiry Report and recommendations address these issues.

A significant educational and awareness raising programme, flowing from the Inquiry exercise started two weeks ago and will continue for the next two years. The Human Rights team once again will be providing crucial financial and technical assistance in this phase, which will result in lasting and meaningful change in Samoa. For this we are deeply appreciative. Knowing that the Commonwealth Secretariat supports small institutions such as Samoa’s NHRI, in so many different ways, is heartening and gives us the motivation to redouble our efforts for all Samoans.


Samoa: Tackling Misconceptions About Human Rights

In 2013 the Office of the Ombudsman became the National Human Rights Institution (NHRI) for Samoa.

The Samoan NHRI has all the powers and functions that are normally associated with a NHRI. It has the power to, inter alia, inquire into and report on alleged violations of human rights promote public awareness of human rights through the provision of information and education and monitor and promote compliance with international and domestic human rights law.

The NHRI is also mandated to submit a report to the Samoan Legislative Assembly on the state of human rights in Samoa by 30 June of each year. In 2015, the NHRI submitted its inaugural State of Human Rights Report (SHRR) which was launched bythe Prime Minister of Samoa, Tuilaepa Sa’ilele Malielegaoi on 17 August 2015.

Staff at the SHRR Launch in August 2015

The SHRR, which was well received by the Samoan community, is the first of its kind in Samoa’s history as it highlights for the first time the nature and extent of various human rights issues that currently exist in Samoan society. Importantly, the SHRR attempts to dispel misconceptions in Samoa about the true nature and purpose of human rights, and discusses the relationship between Fa’asamoa and the international human rights system. Fa’asamoa is a way of life that is distinctly unique to Samoa. It prescribes an all encompassing system of roles and responsibilities that spell out different relationships within the family and the community.It involves the traditional fa’amatai system (village councils) which is central to the organisation of Samoan society. The core of the fa’amatai is the matai – the title or title-holder that leads the aiga (family/extended family) who is the trustee of the family’s property and represents the family on the village council. The matai can be either male or female. However, currently only 10% of matai titles are held by women. The authority of village councils has played a vital role in maintaining and preserving peace, harmony, security and stability through customary law and traditions, especially in the rural areas where the majority of Samoans reside. The Samoan Government relies heavily on this system for the preservation of law and order throughout Samoa.

Human rights are underpinned by the core values of universality, interdependence and indivisibility, equality and non-discrimination. Similarly, the Fa’asamoa holds core values that guide social interaction such as respect, dignity, love, protection, and service. For example, feavaa’i (mutual respect) is a core value of the fa’asamoa. It is demanded of all Samoans, particularly children towards their parents, brothers towards their sisters, serving members towards their chiefs, young towards the old, congregations towards their pastor and so on. Respect is shown not merely in the manner of talking, but also in the body language of the person.

Villagers from Matuatu marching for International Human Rights Day 2015 – Their theme – “Respect”

Alofa (love) is expressed not only within the family and community but also towards guests. It includes parents caring and providing for their children, ensuring that they receive the best of everything children caring and looking after their elderly parents brothers and sisters looking out for each other neighbours providing help and assistance wherever they can the commitment and sacrifice families make towards the church and welcoming visitors to Samoa with open arms. Fepuipuia’i (mutual protection) is demonstrated when parents care for and protect their children from harm and danger, and vice versa when roles are reversed later in life, or when the matai of the village ensures that members of the village live peacefully, and villagers uphold and protect the dignity of the matai.

The founding fathers of Samoa’s Constitution also understood the relationship between fa’asamoa and human rights when fundamental human rights were incorporated into the Constitution.[2] Yet, some Samoans view human rights as a foreign concept that has no place in Samoan society. There is a misconception that human rights and fa’asamoa conflict rather than mutually reinforce each other. The reason for this seems to stem from the Samoan translation of ‘human rights’. Some Samoans imply from the Samoan translation that ‘human rights’ means that individuals have the freedom to do anything they want without any limitations.

Through the analysis of various human rights issues, including issues affecting the most vulnerable sections of Samoan society, such as women, children, people with disabilities (PWDs) and prisoners, the SHRR proves that international human rights protections and fa’asamoa work together in protecting and promoting human rights in Samoa.

Take gender-based violence as an example. The Samoa Family Health and Safety Study found that 46.4% of women surveyed aged 15 to 49 reported experiencing physical and/or emotional and/or sexual violence by an intimate partner. Yet, a survey conducted as part of the NHRI’s SHRR found that many participants felt that Fa’asamoa and human rights conflicted in this area, with many citing that Fa’asamoa permits husbands to beat their wives.

The NHRI used the interweaving of fa’asamoa and international human rights law to dispel this misconception and highlight the need to reverse the trend of high rates of gender-based violence within Samoan society. The NHRI highlighted a central principle of fa’asamoa – Ole tuafafine ole ‘i’oimata o lona tuagane’ – meaning that a sister is the pupil of her brother’s eye – to show that fa’asamoa protects Samoan women from physical, emotional or sexual violence . This relationship also extends to unrelated males and females.

Similarly, gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms, is protected under general international law as well as various human rights conventions, including the discrimination provision within the meaning of article 1 of the Convention on the Elimination of Discrimination Against Women. Considering that Samoan women are protected by principles and obligations under both international human rights law and the fa’asamoa, the high prevalence of violence against women in Samoa is intolerable from both a cultural standpoint as well as from a human rights perspective.

The NHRI also used a case study in the SHRR to highlight how fa’asamoa can work in a way that allows the economic empowerment of women and men which helps to reduce the rate of gender-based violence. This is evident in the case of the Pacific NGO – Women in Business Development Inc. (WIBDI).

Samoan woman practicing the art of fine-mat weaving

WIBDI is dedicated to strengthening village economies with a development model that takes into account Samoan values, tradition and culture. It works with vulnerable populations to develop sources of income to increase self-reliance and independence, focusing on networking with communities, government and other organizations in Samoa and around the Pacific. It began its fine‑mat programme for women in the mid-1990s. However, it witnessed an unfortunate trend. In areas where women were becoming the main income earner through the WIBDI programme, there was a spike in gender-based violence as a result. Women were being beaten because of the amount of time they spent weaving instead of cleaning and doing other expected household activities. In response, WIBDI reframed their programme to include the husband as a planter and harvester of the pandanus (weaving) plants while simultaneously sharing childcare and domestic duties with his wife so that she could weave. Re-conceptualizing the programme as a family initiative allowed for the inclusion of everyone in economic empowerment. As the WIBDI website states, “this means being able to send children to school, to pay utility bills and, importantly, to have control over their lives instead of relying on remittances”. This has seen a reduced rate of gender based violence in the villages that WIBDI is currently operating in. It is hoped that this program of economic empowerment, combined with the NHRI’s education and outreach program which seeks to explain the interrelationship between fa’asamoa and human rights, will continue to help reduce the rates of gender-base violence in Samoa.

Finally, the Samoan NHRI will attempt to explain the relationship between the fa’asamoa and international human rights norms in its next SHHR in 2016 when it focuses on the rights of people with disabilities. It will explore how Samoan culture and human rights can ensure that PWDs are able to participate effectively and fully on an equal basis with the rest of Samoan society.

Chris Rummery, Human Rights Officer

[1] Universal Declaration of Human Rights UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217A(III), available at http://www.refworld.org/docid/3ae6b3712c.html [accessed 12 December 2015]:

[2] The Constitution of the Independent State of Samoa 1960 (came into force 1 January 1962) see the right to life (Article 5) right to personal liberty (Article 6) right to freedom of inhuman treatment (Article 7) right from forced labour (Article 8), the right to a fair trial (Article 9) right to freedom of religion (Article 11,12) rights regarding freedom of speech, assembly, association, movement and residence (Article 13) and freedom from discriminatory legislation ( Article 15). These rights correspond directly with rights enshrined in the UDHR, see the right to life (Article 3), freedom from inhumane treatment (Article 5), the right to a fair trial (Article 10), freedom of thought and religion (Article 18), rights regarding speech, assembly, association, movement and residence (Articles 20 and 13, respectively), and freedom from discriminatory legislation (Article 7).


Justice and security

The justice system is headed by a Supreme Court, whose chief justice is appointed by the head of state on the advice of the prime minister. Supreme Court judges also preside over the Court of Appeal. Among the lower courts are the Magistrate’s Court, which hears most criminal cases, and the Lands and Titles Court, which handles civil matters.

Samoa has a police force but no standing military. New Zealand is bound by treaty to provide military assistance upon request.


Culture, constitution and controversy in Samoa

What’s behind the proposed bills to codify Samoan customs in law?

Fifty-eight years after Samoa became an independent state, it has been promised a new court giving Samoan customs a rightful place in law. It is worth considering why has this has been declared necessary

Prime Minister Tuilaepa Sailele Malielegaoi has told the nation that Samoan customs will be strengthened in law when parliament passes three interconnected bills into law: the Land and Titles Bill 2020, the Constitution Amendment Bill 2020 and Judicature Bill 2020.

The first will replace the current Land and Titles Act 1981, and the second and third remove the Land and Titles Court from under its present constitutional umbrella. The proposed new court will have added powers for adjudicating on village laws passed by village councils (fono), as well as on customary land and chiefly titles. It will have its own appeal structure, separate from the Supreme Court.

The Explanatory Memorandum to the Constitution Amendment Bill 2020 poses this question:

Why is the Samoan Constitution more protective of the introduced modern principles such as individual rights, as compared to the Samoan custom and usages, the way of life of the Samoan people? In a courtroom, why are individual rights more powerful than Village Fono decisions? The answer is, because the Constitution says so.

The PM has emphasised this question, claiming that the palagi (Europeans or white people) imposed their legal culture on Samoans through the constitution of Samoa, thus undermining the customary communal rights of Samoans by way of foreign human rights provisions. This claim comes despite the fact that very few appeals to higher courts over communal versus constitutionally protected rights have been made over the past half-century.

Samoan custom has never been codified. In founding the Land and Titles Court, German colonial officials wanted to prevent the endemic feuds and civil wars of the past by weakening the customary authority of adversarial high chiefs and their backers. Despite these restraints, customary land and chiefly titles are matters close to the hearts of Samoans at home and abroad. Public opinion on the court tends to depend considerably on whether a person’s family has won or lost its most recent Land and Titles Court case, and the PM receives many complaints from indignant losers.

Moving Land and Titles away from the existing umbrella of constitutional law will not overcome the problem of being underresourced and unable to meet demand. However, it will likely make political interventions into title succession and authority over land much easier.

There has been considerable pushback against the proposed legislation by the Samoa Law Society (see Fiona Ey in The Interpreter, 8 May) although lawyers working for the government have been ordered to toe the government line. Legal opinion criticising the bills argues that if a separate, parallel legal system for customary law is estabished, it could remove consitutional protections and open the way for village councils of chiefs to act despotically.

The problem with such a potent emotional call for legal restitution of fa’aSamoa custom is that there is no longer a consensus about Samoan custom. Samoa is a modernising, globalising society of about 200,000 people, with hundreds of thousands of Samoans living overseas. Only about 60% of the population in Samoa live in villages governed by councils of chiefs.

About 80% of all land remains under customary tenure, and the constitution protects customary land by forbidding its sale or mortgaging. In pre-colonial Samoa, land was under the authority of the highest chief, each acting as trustee for their people, allocating plots of land according to need.

Recent concerns over land law illustrate the problem of traditional authority. High chiefs were once appointed by bestowing a single title on a genealogically entitled individual, usually chosen by the heads of families. Today, most landowning families can no longer agree on a single candidate to hold a title, so titles are typically shared among many who hold the same title. This arrangement makes the leasing of customary land (as allowed by 2008 legislation) unworkable if families cannot agree on who is entitled to sign a lease, which is often the case.

The intent of the 2020 bills proposed by the government is likely political. This is an election year: the next election is scheduled for April 2021. Many voters are dissatisfied with the Land and Titles Court, and may like the proposed changes. There are long delays in hearings, there have been cases of judicial corruption, and decisions made by judges can be unclear or contradictory.

Moving Land and Titles away from the existing umbrella of constitutional law will not overcome the problem of being underresourced and unable to meet demand. However, it will likely make political interventions into title succession and authority over land much easier – which may be the government’s real aim. It will have more authority to impose rules about customary authority over land and the powers of village councils.

The elections in April 2021 may be the first time Samoans vote on an issue other than a referendum. In the last election, in 2016, the ruling Human Rights Protection Party, which has held power for 38 years, won office with only two non-aligned candidates winning seats. Government officials and leaders of rival political parties are now discussing the issue of the bills with village councils. So far, Samoans have tended to vote with village and family alliances without much attention to party policies. This may change in April, depending on how the proposed laws are understood by village leaders.

The Lowy Institute is part of the&ensp

Samoa

Samoa is a Pacific Island country situated north of the Kingdom of Tonga and west of Cook Islands. Samoa has a total land area of approximately 2,934 sq. km and consists of two main islands &ndash Upolu and Savai&rsquoi &ndash and seven small islets. The capital of Apia is located on Upolu, which is also home to nearly three-quarters of Samoa&rsquos population[1]. The Fa&rsquoa Samoa, or traditional Samoan way, remains a strong force in Samoan life and politics.

Women and the Law

The Samoan constitution makes reference to equality before the law for women but does not prohibit discrimination on the grounds of sexual orientation or HIV and AIDS. Samoa has limited scope for anti-discrimination coverage beyond public institutions.

Samoa&rsquos Family Safety Act 2013 defines domestic violence broadly to include physical, sexual, emotional, verbal and psychological abuse and enables complainants to seek protection orders against abusive partners. Samoa has no formal family court to deal with domestic violence and family issues. The definition of rape is limited to sexual intercourse and girls 16 years and older can be held accountable for incestuous relationships.

The common law rule requiring proof of physical resistance in order to establish absence of sexual consent is still applied, as is the defence of reasonable belief that the victim was of a legal age of consent (if the actual age of the victim is between 12 and 16).

Customs and traditional practices are safeguarded by the constitution in a range of contexts in Samoa and the application of customary practices influences formal criminal procedures. The Samoan traditional reconciliation practice of ifoga is sometimes used to justify reduced sentences or to prevent charges from being laid in cases of domestic violence . Historically, many police have viewed domestic violence as a family matter and often try to facilitate reconciliation rather than taking a complaint further.

Abortion is criminalised in Samoa with a penalty of seven years imprisonment.

Fault-based divorce is practised in Samoa, and division of matrimonial property in cases of divorce does not take non-financial contribution into consideration.

Candidates for political leadership must hold a Matai, or chiefly title. In 2011 female Matais accounted for 10.5% of all Matai in Samoa. At the village governance level, women make up close to 36% of total Matai . Women can also be appointed as Matai Palota (ballot chiefs). Voting rights were only afforded to Matai until 1990 when suffrage was granted to all citizens . Today, women over the age of 20 years are eligible to vote.

Samoa currently has two female members of parliament in the Samoan legislative assembly, accounting for 4.8% of women in parliament, compared with 8.2% in 2006 . In March 2012 the government tabled a Constitutional Amendment bill seeking a 10% floating quota of reserved seats for women as a temporary special measure to increase women&rsquos representation. This bill was passed on 24 th June 2013 and is colloquially known as the 10% act.

Women and the Economy

The Samoan economy is dominated by subsistence agricultural farming at least two thirds of the adult workforce, aged 15 years and over, fall into this section . The government remains the largest employer in the formal sector and women account for close to 53% of the total public service . In the private sector, women dominate the manufacturing sector (although they are mostly employed in the Yazaki automotive wiring plant). Women head more than 40% of small businesses, mostly in the private sector and mostly with the assistance of micro-finance initiatives . The overall gender ratio of government staff is about 50-50[1]. There has been a major increase in the number of women in top management positions (from 18% in 2001 to 53.3% in 2009/10) and the number of female chief executive officers and general managers increased from 17% to 29.4% during the same period[1].

Samoa passed the Labour and Employment Relations Act in April 2013 which has not only provided stricter guidelines for sexual harassment, but also provided clauses for no discrimination against applicants who are pregnant, mandatory maternity leave, paid maternity leave and equal pay without discrimination based on gender.

Under the Labour and Employment Relations Act, harassment is now described as any unwelcome and offensive conduct that induces the fear of harm or serious disturbance to a fellow employee and includes: conduct of a sexual nature offensive jokes or name calling physical assault or threat intimidation ridicule or mockery insult offensive objects or pictures and interference with work performance. Maternity leave must be granted for a consecutive period of at least four weeks with full pay and two weeks without pay

Violence Against Women

Violence against women presents major health issues for Samoan women. Overall, 46% of Samoan women who have ever been in a relationship have experienced one or more kinds of partner abuse. The most common form is physical abuse (38%), followed by sexual abuse (20%) and emotional abuse (19%) . Approximately 30% of women who had been physically abused reported being injured as a result of this abuse . Of the women who reported physical partner violence, 24% had been punched, kicked or beaten while pregnant. In almost all of these cases, the perpetrator was the child&rsquos father . Of the women who reported being victims of violence, 78% said they had experienced domestic violence, 11% were victims of sexual violence, and 11% had experienced indecent assault .

Approximately 97% of women who were victims of domestic violence did not report it to the police, and 36% of these women said they failed to report it because they felt it was a private matter between husband and wife, 8% because they felt it was a minor offence and 7% because reporting was incompatible with their love for their husbands. About 96% of the perpetrators were the women&rsquos husbands .

Women who reported abuse were significantly more likely to have children who died (16% compared with 10%) and to experience a miscarriage (15% compared with 8%). They were also more likely to report that their partner was opposed to contraception (15% compared with 5%) .

About 70% of women think that men sometimes have a good reason to beat their wives .

Women&rsquos Health

Maternal mortality is at 100 deaths per 100,000 live births (adjusted for misclassification and under-reporting) and 81% of births are attended by skilled birth attendants .

The contraceptive prevalence rate is 29%, and 46% of women identify an unmet need for contraception &ndash by far the highest in the region for countries with available data. It should be noted, however, that this data only applies to married women aged 15-49 (i.e. not all sexually active women) as the Demographic and Health Survey 2009 focused specifically on this group. The adolescent birth rate is 44 per 1,000 women aged 15-19 .

Non communicable diseases pose a direct risk to women&rsquos health. The total prevalence rate for diabetes is 23.1%: 22.9% in males and 23.3% in females[2]. The total prevalence of hypertension is 21.4%, with a higher rate in men (24.2%) than in women (18.2%) .

Women and the Environment

Annual maximum and minimum temperatures have increased in Samoa since 1950 maximum temperatures in Apia have increased at a rate of 0.22°C per decade . Satellite data indicates that the sea level near Samoa has risen by approximately 4mm a year since 1993 . Compared to the global average is 2.8-3.6mm per annum. Over 70% of the Samoan population live in rural communities and rely on the subsistence economy, and therefore climate change and natural disasters pose a direct threat to their security. In 2012, Cyclone Evan had a grave impact on Samoan infrastructure and housing stock, leaving many homeless .

UN Women in Samoa

Advancing Gender Justice in the Pacific (AGJP) Programme: UN Women supports the government with the implementation of Samoa&rsquos CEDAW Concluding Observation. UN Women also supports the government&rsquos efforts to establish a specialised court to provide justice in family matters.

UN Women supports the Samoan Electoral Commission with the development of gender-responsive knowledge products in regards to election. In addition UN Women provides gender training for the Electoral Commission&rsquos staff.

Ending Violence against Women (EVAW) Programme: This programme continues to focus on the prevention of and response to violence, exploitation and abuse of women and girls in Samoa through its Pacific EVAW Facility Fund. The fund provides financial and technical support to organisations addressing EVAW throughout the country, and supports capacity development amongst government and civil society partners in order to provide multi-sectoral and survivor-focused VAW services. The grants facility component enables direct outreach to marginalised groups and VAW survivors with better access and availability of VAW services, information, knowledge on human rights and equality.

UN Women provides stakeholders with access to virtual knowledge platforms, tools and evidence-based resources in order to better equip them with the knowledge and evidence to advocate for strengthened EVAW legislation, improved policies and services for violence against women survivors. The EVAW programme, in collaboration with partner organisations, aims to inform women and girls about the availability of VAW services and to support social transformation through campaigns such as the United Nations Secretary General&rsquos UNiTE to EVAW and Say NO-UNiTE.

Women&rsquos Economic Empowerment (WEE) Programme: UN Women is promoting the use of a gender-responsive policy framework in planning documents at all levels through supporting the production of nationally-generated disaggregated data and statistics on the economic situation of women in Samoa.

Increasing Community Resilience through Empowerment of Women to Address Climate Change and Natural Hazards (IREACH) Programme: UN Women supports the adoption and implementation of gender equality commitments in strategic documents for climate change and disaster risk management through capacity strengthening of stakeholders and the provision of knowledge products and tools on the gendered implications of climate change and disasters.


Tag Archive for: Human Rights in Samoa

An island state in the South Pacific, Samoa makes up one of the westernmost islands of Polynesia. With just over 170,000 people, Samoa is a small country of great cultural indigenous history. Its government is a unitary parliamentary democracy and though there is little political strife, Samoa has struggled in recent years with its human rights.

According to a 2015 Human Rights Report on Samoa, the country did generally well keeping up with the code of conduct prescribed in the Samoan constitution. An executive summary reported that there were no unlawful government or police killings, torture or inhuman punishment, denial of fair trials or restrictions on academic, internet or speech freedoms. However, the report noted some breaches of the human rights standards in Samoa.

In 2015, conditions in men’s prisons were reported to be overcrowded and there was a lack of ventilation and lighting in cells in fact, one cell at police headquarters in the city of Tuasivi was deemed unfit for human containment. There was also a general lack of security at prison centers, but authorities did properly investigate and monitor conditions.

The report also noted a violation of privacy of homes and families. Lack of privacy in some villages meant possibly granting officials access to homes without a warrant and there were several allegations of village councils banishing people from their villages. Those exiled by traditional government law were banished due to cases of rape, adultery, murder and unauthorized claims to land. There were some reports of government corruption in 2013, but elections were considered generally fair. Reported rape cases in 2015 were thoroughly investigated and had high conviction rates. Domestic violence is considered common criminal assault with a maximum penalty of one year imprisonment and offenders were generally only punished if the abuse was considered extreme.

In August 2017, a United Nations human rights panel released a report on Samoa’s handling of gender-based violence. The U.N. Working Group on discrimination against women noted that it is only once womens’ sexual and reproductive rights are met that laws regarding gender-based discrimination and violence in Samoa can be fully effective. In Samoa, gender-based violence is somewhat taboo and perceptions of discrimination against women are buried deep within the roots of Samoan culture. The goal of the 10-day delegation on Samoan laws was to open a dialogue about gender-based violence and to rally support from government leaders, stakeholders and men and women alike in order to make the necessary reforms to change misconceptions about violence and discrimination against women. Suggestions for new policies at the event included a state-sponsored welfare system, support for female victims of sexual violence and better funding for civil society groups.

The country, which is making several strides toward bettering human rights for all, has a history of ratifying treaties which work in favor of all Samoans and give people equal and humane treatment. Some include the 2016 Convention on the Rights of Persons with Disabilities, the 1994 Convention on the Rights of the Child, the Convention on the Elimination of all Forms of Discrimination Against Women, and the 2008 International Covenant on Civil and Political Rights. With continued pressure on leaders to make permanent changes to the human rights standards of the country, and with the participation and education of the public, human rights in Samoa are on their way to serious improvement.


Samoa Human Rights - History

The People of Samoa

by Samoa Koria,
San Diego, California

In 1995, the Pacific Islander community of San Diego held its first major community festival - more than 60,000 people came to the two-day festival, July 22nd and 23rd.

Organizing to overcome a perceived inviability of Pacific Islander people in San Diego, Chamorros, people of the Cook Islands, Fijians, Guamanians, Hawaiians, Maoris, people of the Marianas, Marshallese, people of the Federated States of Micronesia, Samoans, the Tokelau, Tongans, and others came together to put on this historic event.

With the theme of Hokule'a-Ho'oku'i I Ka Pakipika (Bridging the Pacific), the festival was a vivid expression of the Pacific Islander people's history, culture, arts, crafts and cooking. Central to the festival was the visit to San Diego of the Hokule'a ship (photo above) - a symbol of exploration among Pacific Islanders.

The festival received a lot of support in San Diego city and county and has lead to steps towards Pacific Islander empowerment including the establishment of various new organizations and the placing of Pacific Islanders on city and county commissions.

After the success of this first festival the planning of the second festival is well under way. The following article about the Samoan people was written by Samoa Koria a member of the education committee of the 1995 festival and was chair of the 1996 festival.

OUR PEOPLE: The Samoan Islands are part of Polynesia, and lie in the South Pacific about 2,400 miles southwest of Hawai'i.

Historically, the British, German, and American governments all vied for political domination of the Islands. Today, the Islands are divided into two regions:

  • Western Samoa - at one time under the German and New Zealand government rule, now an Independent country.
  • Eastern Samoa - known as American Samoa, a possession of the United States since 1900.


OUR HISTORY: For many years, we have lived a under "laid-back" lifestyle with no development of written language until missionaries arrived on the Islands in the early to mid-1600's. With the advent of a Samoan alphabet and language, we began to document stories of our lives and events of great importance to maintain valuable cultural, political, economical, and social pride. The intrusion of various "superpowers" divided our country into two regions with two different philosophies.


OUR CANOES: Samoans have constructed many types of canoes, each designed for a specific purpose. Here are just a few:

  • The "Paopao" is one used for fishing within the reef areas.
  • The "Va'aalo" is a bigger fishing craft used outside reef areas and for short distance travel.

OUR RELIGION: There has always been some worshiping to God. This means that you'll find Samoans into many different kinds of churches from Buddhism to Christianity. Also, our clergy nine times out of ten, come from the theological schools based on the Islands.

OUR COMMUNITY: We are divided into villages - each with a representative called the "matai" (chief of the family) who directs and facilitates all family business inside the village and out.

OUR FOODS: The coconut is an everyday part of our diet. The use of bananas and the taro root is our main staple. Pork, chicken, beef, and fish provide other parts of a daily meal.

OUR WAY OF LIFE: The Samoan "way of life" called Fa'a Samoa is based on respecting our elders and ensuring the well-being of our immediate family at any cost. This fundamental premise is what keeps our culture and language alive today to instill a sense of self-esteem and self pride.

OUR AGRICULTURE: With year-round tropical weather that exhibits wind, rain, and sunshine within an hour of the day, the land is very fertile to grow just about anything that will help for meal preparations for the day.

OUR MUSIC: Much of our music reflects growing trends of the time and always tells stories of how we live life in Samoa. Main genres produced and performed are religious. familial, country humor and "islandish" music.

OUR GOVERNMENT: In American Samoa, the political process is very similar to the election of state officials (governor, senators, etc.). However, Western Samoa is also very similar with the election of state officials (governor and legislatures) and we've adopted parliamentary procedures as the form of government.

OUR CITIZENSHIP: All who are born in American Samoa are United States nationals and are free to travel to the United States. All who are born in Western Samoa are considered "foreigners" and must therefore obtain visas to enter the United States.

OUR CULTURAL SYMBOL: Our official seal shown above bears the cultural symbols of our Samoan culture -- the Fue, the To'oto'o, and the Kava Bowl. The Fue represents wisdom, the To'oto'o (staff) represents authority. Together, these are used by the chiefs of the land and indicate their elevated ranking. The Kava Bowl symbolizes service to the chiefs. This bowl is traditionally used during the Kava Ceremony, one of the highest and most formal rituals of the Samoan culture. The 'Ava.

OUR UNIQUE FACT: From 1978 -1982, there were more Samoans residing in the United States (approx. 50.000) than in American Samoa itself (approx. 39.000).


Margaret Mead’s Theories: Gender Consciousness and Imprinting

Selecting the peoples of the South Pacific as the focus of her research, Mead spent the rest of her life exploring the plasticity of human nature and the variability of social customs. In her first study, Coming of Age in Samoa (1928), she observed that Samoan children moved with relative ease into the adult world of sexuality and work, in contrast to children in the United States, where lingering Victorian restraints on sexual behavior and the increasing separation of children from the productive world made youth a needlessly difficult time.

Westerners’ deep-seated belief in innate femininity and masculinity served only to compound these troubles, Mead continued in Sex and Temperament (1935). Describing the widely varying temperaments exhibited by men and women in different cultures, from the nurturing men of the Arapesh tribe to the violent women of the Mundugumor, Mead maintained that social convention, not biology, determines how people behave. She thus entered the nature-nurture debate on the side of nurture. Mead’s famous theory of imprinting found that children learn by watching adult behavior.

A decade later, Mead qualified her nature vs. nurture stance somewhat in Male and Female (1949), in which she analyzed the ways in which motherhood serves to reinforce male and female roles in all societies. She continued nevertheless to emphasize the possibility and wisdom of resisting traditional gender stereotypes.

When funding for her field research in the South Pacific was cut during World War II, she founded the Institute for Intercultural Studies in 1944.


Samoa’s constitutional crisis: Undermining rule of law

Amid the Covid-19 emergency, a set of legal amendments threatens judicial independence and human rights.

While the global community struggles to respond to the Covid-19 pandemic, Samoa is embroiled in a constitutional crisis. The South Pacific nation is frequently lauded for its good governance and regional leadership. The current crisis, however, has exposed fault lines around race and identity that could significantly undermine Samoa’s democratic institutions and future development.

Immediately prior to declaring the country’s Covid-19 State of Emergency on 20 March, Samoa’s Prime Minister, Tuilaepa Sailele Malielegaoi, introduced into Parliament the Constitution Amendment Bill 2020, Judicature Bill 2020, and Lands and Titles Bill 2020. These bills bring about major constitutional changes that would undermine judicial independence and the rule of law, with significant implications for human rights.

The changes would potentially empower the executive to dismiss judges without grounds or due process. Currently, judges may only be removed via two-thirds vote of Parliament on grounds of misbehaviour or mental impairment. The parliamentary process would thus be replaced by an unlimited dismissal power exercised by the Judicial Services Commission, the majority of whose members would be appointed by the executive. Such changes would fundamentally alter the carefully calibrated relationship between the arms of government, removing the judiciary’s role as an independent check on abuses of power.

Common law and equity, which guide judicial decision-making across Commonwealth courts, would be expressly excluded from Lands and Titles Court rulings.

The amendments would reshape Samoa’s courts by elevating the specialised Lands and Titles Court (LTC) into a stand-alone judiciary coequal to the Supreme Court. Creating a second judicial branch of government is unprecedented in a modern democracy. The lack of an apex court to resolve differences between courts creates significant potential for legal uncertainty and conflict.

The LTC exercises jurisdiction over Samoan customary land and matai (chiefly) titles. As in other Pacific nations, these issues are deeply cultural and often highly contentious. LTC cases are presided over by lay judges who are accomplished in Samoan custom. The two-tiered LTC currently has its own appeal court, with the Supreme Court exercising supervisory jurisdiction for breaches of fundamental human rights. These rights, including freedom of religion and the right to a fair hearing, have been enshrined in Samoa’s constitution since independence in 1962.

The bills would give the LTC “supreme authority” over Samoan customary matters, and it would apply only “customary law”. Common law and equity, which guide judicial decision-making across Commonwealth courts, would be expressly excluded from LTC rulings. The impact of these changes is far-reaching: 80% of the country is designated customary land, and all Samoan extended families exercise collective responsibility for their land and chiefly titles as their measina (precious inheritance).

By removing the Supreme Court’s supervisory jurisdiction, the proposed changes would abolish the application of fundamental human rights from customary matters. Instead, the LTC would apply undefined “communal rights”, which the bill’s explanatory memorandum essentially equates to decisions of the village fono (chiefly council). In the past, certain actions claimed to be taken on behalf of the community, such as beatings or house burnings, have been declared by the Supreme Court to violate fundamental rights. The removal of Supreme Court oversight of the LTC would effectively leave village fono with decision-making power unfettered by human rights considerations.

The notion of pitting individual human rights against traditional communal values is rejected by eminent Samoans. Professor Malama Meleisea has shot down the false dichotomy of individual versus traditional communal rights, illustrating that when individual rights are protected, the community is protected. A landmark 2015 report by Samoa’s Ombudsman, Maiava Iulai Toma, highlighted that human rights are not foreign ideals, but in fact have their roots in Samoan cultural values, and that the two taken together make a more harmonious society.

The LTC has been the subject of long-standing criticism of its competence and judicial conduct. After an extensive consultative process, a 2016 parliamentary inquiry recommended various administrative changes to improve the LTC’s resources and capacity. Importantly, this review recommended the retention of the Supreme Court’s supervisory jurisdiction.

Samoan Prime Minister Tuilaepa Sailele Malielegaoi addresses the general debate of the UN General Assembly, September 2019 (Cia Pak/UN Photo)

In October 2019, however, Cabinet assigned the Samoa Law Reform Commission (SLRC) to review the recognition of Samoan custom within the constitution and the establishment of the LTC as an autonomous court. The resulting legislation came as a surprise to many, as it was not subject to the usual public consultation required by SLRC’s mandate and established government policy. Immediately after their introduction, the bills were referred to a parliamentary committee. The media has been excluded from the committee’s public hearings, even though state-of-emergency limits on public gatherings have been eased. The changes are also being considered at a time when the offices of attorney general and chief justice are vacant.

Opposition to the bills has grown steadily. In a letter obtained by the media, the entire Supreme and District Court judiciary voiced their wide-ranging concerns to the SLRC. In the absence of an organised parliamentary opposition, public dissent has been led by lawyers and the media. The Samoa Law Society has undertaken an extensive public education program across media platforms, with community leaders and academics adding to the voices of dissent. International scrutiny is growing, with the New Zealand Law Society issuing a statement in support of the Samoan judiciary and lawyers and eminent international jurists expressing their serious concerns.

Government has responded by publicly criticising Supreme Court judges for their palagi (white person) thinking. Other opponents of the change have similarly been described as not sufficiently Samoan. After the Prime Minister’s recent assertion that Samoa’s founding fathers did not understand the palagi-drafted constitution, traditional leaders have strongly and publicly defended their forebears. Ironically, it was the current government that ratified Samoa’s membership of the UN’s foundational human rights treaties only 12 years ago.

In an already tense environment struggling with the impact of Covid-19 and the recent measles epidemic, this style of identity politics fans existing racial resentments. Samoa is often lauded for its political stability under the Human Rights Protection Party, which has ruled for almost 40 years. However, critics have noted the long-term deconstruction of Samoan democracy via the gradual erosion of the constitution and government systems. This has seen the accumulation of power in the executive, and more particularly a dominated Cabinet. The judiciary is the final frontier.

* Fiona Ey is a lawyer practising at the Samoan Bar. Her husband is a judge of the Supreme Court of Samoa, and her business partner is President of the Samoa Law Society. The views expressed in this article are her own.

The Lowy Institute is part of the&ensp


Watch the video: Τι είναι τα Ανθρώπινα Δικαιώματα; (July 2022).


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