Finding Connections between Traditional Governance and Formal Law in Samoa

Nanai Sovala Agaiava

Introduction: Background and Challenges

In Samoa, several attempts have been made over the years to integrate the two systems of government. The diversity of traditional practices exercised by each village remain a challenge to any strategy or policy focusing on marrying the two systems. The Constitution of Samoa 1960 remains the sole overarching legislation that governs the nation. By the late 1980s, it became obvious that the Constitution did not address a number of local/village government practices, which are fundamental to the Samoan way of life (faasamoa). The practice of banishment, for instance, was one of these practices, which has been exercised continuously over the years, except for the period in which the New Zealand administration banned it in the 1930s.

With this in mind, the Village Fono Act 1990 was developed to strengthen village governments and address the exercise of some of these practices. Several limitations and less practical resolutions frustrated village governments, and prolonged efforts to identify remedies and address ways in which the two systems could work together and complement one another. The frustrations of the villages derived mainly from not fully understanding the Constitution and limited knowledge of the legislation pertaining to human rights. In addition, under the Village Act 1990, the villages were only permitted to hold council (or village fono) meetings, and impose fines and penalties that were limited to hard labour and paying dues through fine mats or food to the village. Banishment in particular was not covered as a form of punishment to be exercised by villages. Several court cases by individuals and/or families that were banished by village councils over the years challenged the village councils’ perception and understanding of human rights and further discouraged traditional governments.

The tension between formal and traditional governance is a critical issue for governance and development. This essay looks at the case of Samoa, and how, after numerous attempts, a solution to the interface between traditional and formal government was discovered – and simultaneously addressed the issue of intergovernmental communication and improving government-community relations.

Historical, Political and Legal Context

Samoan traditions have played an important role in guiding the country’s governance. Samoa’s head of state is one of the country’s paramount chiefs (Tamaaiga), who is regarded with the same eminence as the King of Tonga. His Highness Tui Atua Tupua Tamasese Efi replaced the late Malietoa Tanumafili II, who was the last Head of State to serve for life. Tui Atua began his first five-year term as Head of State in 2007. Tui Atua is assisted by the Council of Deputies, which comprises the holders of the other distinguished traditional Samoan chiefly titles. Samoa’s Executive consists of a 13-member Cabinet, headed by a prime minister. The Legislative is made up of Members of Parliament, who are elected from every constituency in Samoa for a five-year term. To be eligible for a parliamentary seat, a candidate must be a Samoan chief (this can be either a woman or man), who has resided in Samoa for at least three years. The Samoan political system is therefore a pragmatic fusion of the traditional and Westminster systems of government.

Samoa’s constitution, adopted in 1960, guided Samoa’s path to independence in January 1962. Samoa’s constitution is rooted in both Christianity, being founded in God, and traditional cultural practices, such as respect for women, elders and each other. Another important cultural practice used as the basis of the constitution is the respect for individual chiefs as representatives of parliament. In fact, until the Plebiscite of the 1990s, only village chiefs were permitted to vote in national elections. In addition, the principles of consensus, participatory, responsive, inclusive and equitable governance are paramount to the Samoan way of life, and also fundamental to the Constitution of Samoa.

While Christianity is new to Samoa compared to its traditional practices, the Westminster system adopted as the form of government in Samoa rested predominantly on the former. The most fundamental aspect of the faasamoa – Samoan way of life – is the authority vested in the alii and faipule (high chiefs and orators), who make up the village councils. Perhaps, due to the events leading up to its Independence in which a united village council could make a challenge to overthrow colonizers through passive resistance, such as the Mau movement against the New Zealand administration in the 1930s, not much was said about the rights of the village council or alii and faipule. The Constitution was perceived as being ‘silent’ on rights of the alii and faipule.

However, after centuries of existence, the village fonos (councils) were finally afforded formal authorities and powers through the Village Fono Act 1990, which protects a number of fundamental authorities and powers of the village councils. Their functions, responsibilities and jurisdiction were clearly articulated. Under the Act, the right to assemble and exist as a council is protected, and village councils are also permitted to hold meetings, take minutes and execute their authority for the protection and security of their village. This grants village councils the power to impose fines on individuals or families that threaten the peace and security of other villagers and their resources. The sanctions, however, were defined to only include money, fine mats or hard labour. While the Act provided legal security of the formal authority afforded to village councils, some of the traditional roles that these councils assume were not included.

The traditional authority of village councils to banish individuals and families is as old as the Samoan culture, and continues to date. However, banishment is not included among the penalties/sanctions permitted in the Village Fono Act 1990. The traditional execution of banishment in the late 1990s, in which people’s properties were destroyed and lives were threatened, resulted in criminal charges. The Salamumu village council and the Tanugamanono village council cases are prime examples in which banishment led to community unrest, and ultimately criminal charges were brought against the village elders. Both cases related to individuals exercising their Constitutional rights, against the authority and rights of the respective village councils. In both cases, the court ruled in favour of the individuals, frustrating village authorities. As such, the limitations and extent of the authority vested in the alii and faipule was questioned. The cases also highlighted the need to clarify the way in which the two systems inter-relate in more detailed terms.

‘Marrying’ Formal Law and Traditional Governance and Practice

The Government of Samoa has approved theStrategy for the Development of Samoa, 2012-2016 (SDS).The SDS provides the strategic framework for the medium-term development of the country. Section 8 of the SDS focuses on governance and community development. Goal 8.2 of the Social Cohesion outcome refers to (1) strengthening village governance; (2) promoting community development; and (3) strengthening safety nets amongst others. The goal on governance provides the strategic direction for bylaws and other community-related programmes of the Ministry of Women, Community and Social Development and the Commonwealth Local Government Forum (CLGF) Pacific Programme.

Given that the SDS is applicable across Samoa, which is made up of 280 villages with their own traditional practices and village governance, the broad-based implementation of regulations and plans was not feasible. Further, the Constitution had laid the groundwork for the institutionalization of the traditional role of the village chief (he is not elected), thus respecting the centuries-old village governance practices in Samoa. In turn, then, the application of national laws and development frameworks must respect the traditional practices in each village. It was neither appropriate nor practical to tailor the SDS, nor any supporting implementation tools, to the specific needs and practices of each village, which left the government with a very tricky question: How could the SDS be applied consistently across the country without overriding important traditional practices and alienating communities?

Over the years, the Government of Samoa has turned to the village and in particular the village council, to address the issue of the role of the village with regards to the social and economic development of Samoa. The Village Fono Act 1990 extends to the village the authority to draft and pass bylaws to ensure the social welfare, safety and economic development of the community.

The process of assisting villages to catalogue and register their bylaws, ensuring that they were in line with the Constitution and the Village Fono Act, was lengthy. However, this process resulted in two important observations. Firstly, it demonstrated to villagers the importance of formal law in their daily lives. The presentations by the Ministry (which also included lawyers from the Samoa Law Reform Commission), and discussions of their bylaws, enabled the communities to experience and explore linkages between the formal legal system and the bylaws, which have governed and secured their everyday activities. Secondly, the process helped the government identify gaps that could prevent the implementation of the SDS in a particular village. The community consultation process also revealed that village bylaws were a practical and relevant tool to institutionalize and safeguard traditional practices through formal law.

For example, the village of Afega has encountered numerous challenges over the years on matters relating to its honorific, customary land, chiefly titles and the implementation of the village bylaws. Most of these issues were from individuals from a subsection of Afega, who regularly challenged the authority of the village council. The families in this subsection were banished by the village council many years ago. These challenges included, but were not limited to, opposing the village council over the construction of the farmers’ market, the building of a new college in the village and bestowment of paramount chiefly titles by these few people, without following the proper traditional protocols. The village has also been frustrated by an attempt by this group to set up their own village council.

The process of compiling bylaws gave the village confidence in their council and provides the necessary support in preparation for court cases. These included relevant documents and information from the past, which were used to justify the Village Council’s arguments about its cultural right to lands and resources used for the development of the village. The village also learned that there are legal gaps to be addressed when imposing fines and penalties on individuals or families or deciding on any development using its land. These legal gaps resulted in the village boycotting the bestowment of any chiefly title by the families of the subsection that was banished from the village council. Even neighbouring villages have settled land cases following the bylaws developed in Afega. As noted by a senior chief of the village, Afega has successfully defended its decisions on the use of its resources and land for the village development, using village bylaws.

The economic development of the village has also increased, as village bylaws on land use and protecting the farmers and his/her plantation from being robbed, have developed a sense of security for the people to continue investing in agriculture and fisheries, and contribute to village development. The ability of the village to assist and implement major infrastructure development indirectly indicates economic growth. For example, in early 2014, Afega opened a new fish and agriculture market by the roadside, which was assisted by the Governments of Japan and Samoa. This initiative demonstrated the strengthened trust between international and local partners resulting from an effective and active local government system that is determined and able to support local economic development.

In another case, the village of Foailuga’s traditional protocols and practices with regards to funerals, weddings and title bestowment have always differentiated it from its neighbours. Such practices were relevant to the sustainable development of the village when properly recognized and enforced by the village council. Having these practices registered as bylaws improved the observance of these traditional practices, as they were consensually agreed to by the alii and faipule and all people of the village. In addition, the neigbouring villages and communities are adhering and respecting the practices of Foailuga. This has led to a greater level of harmony within the villages. For example, due to the clarifications provided through the bylaws, the village and family of village church minister would not expect a high delegation of dignitaries from Foailuga to preside over his funeral, as any assistance from the village will be given directly to the church minister’s wife and children. The minister’s family is not expected to exercise reciprocity, as is the usual practice in other villages. In the event of a funeral in Foailuga, the bylaws restrict formal assistance[1] by people of the village to a certain amount, and ban people from funeral processions if they are not directly related to the deceased and his/her family. This practice has contributed to alleviating poverty by saving money and resources for the family affected, as they do not have to worry about feeding a large number of people and exchanging goods if people have provided them with assistance.

Through the bylaws, the village is working closely with local, national and regional partners to implement its own village-level sustainable development priorities. The security, safety and sustainability of any assistance from government or other partners is now guaranteed and supported through the village bylaws. In addition, the village councils are leading the efforts to see the villages’ own Village Sustainable Development Plan (VSDP)[2], which was developed/formulated along with the village bylaws, implemented through a sub-committee led by the village mayor.

Foailuga is doing two things through their bylaws. Firstly, it has recognized the focus of the Central Government and its efforts to alleviate poverty and minimize the social and financial burdens associated with traditional protocols and practices and can therefore react accordingly. Secondly, the village is leading its own implementation, monitoring and sustainability of their village programs and activities as outlined in its VSDP. Part of the implementation requires the assistance of partners in the public and private sectors. The Ministry of Education, Sports and Culture, for instance, is committed to constructing a proper sports field, after it was approached by the village committee with their VSDP and Bylaws for assistance.

The village of Aleisa East, is one of 33 non-traditional[3] villages in Samoa. Aleisa East is an example of the difficulties that managing and operating a village without a village council and bylaws can bring.

In 2012, a new mayor was selected by the village. Being a man of extraordinary management skills, the new mayor made several changes to the village. These included selecting a working committee for each sector of the village. Towards the end of 2012, the government was invited to present the SDS to the village and inform its people of the government’s goals for village development. This presentation was well received and enabled the mayor to work closely and smoothly with the village. In 2013, a roadside market and bus stop were opened for the village. Road signs were also put up creating a new image for the village. Towards the end of 2013, the mayor rewarded all of the villagers for their achievements throughout the year by giving them farm tools and equipment. Even school children received prizes from the mayor and his committee. Several farmers from the village won awards for different categories, (best vegetables, farm animals, taro, bananas) including the best taro plantation in Samoa.

However, it was still a struggle to counter social problems in the village. According to several people that responded to a survey/questionnaire conducted by CLGF as part of its monitoring and evaluation process, theft was the most common problem in the village, especially among more geographically isolated families. The police have been called to the village a number of times to investigate these thefts. These petty crimes could have been avoided if bylaws were in place and exercised, monitored and executed in accordance with traditional practices by a village council.

Conclusion

Without a formal local government system and all of its benefits, traditional village governments, through the village councils, have been instrumental in the provision of security, harmony and development services for Samoan communities. Operating and governing almost independently from national governments, the village councils have strove over the years to develop the social well being of communities based on traditional practices.

The cataloguing and registration of bylaws, on the other hand, has provided an interface between the traditional Samoan village councils and Central Government. This interface could be translated in three main areas as articulated in this essay.

  1. Interface for traditional/customary and formal law
  • Bylaws were designed to protect communities, their resources and people. Bylaws were also designed to sustain security and peace of communities and promote local economic development. With localized/contextualized principles of good governance exercised in the formulating and compiling of bylaws, the village councils are reminded of the Constitution and the relevant legislations that bylaws should be aligned to, while maintaining the respect and honor due to the respective village councils and chiefs;
  • Registering bylaws has been the basis of conflict management, as it reduces tension between the two legal systems and between communities and their interpretations of traditional practice/customary law; and
  • It is a struggle to maintain respect for the two systems and identify remedies for social problems in communities without both the village councils and related bylaws as the basis for local governments.
  1. National government – village communication

The success of the national government of Samoa depends on the effective realization and implementation at the local government level. It is essential that local governments are well informed of all developments. In addition, the policing of any government asset and resource in the village depends on village councils.

  • Bylaws emphasize good communication between village representatives and government on a local economic, social and infrastructural development;
  • Bylaws strengthen inter-connectedness with the national governments for the safeguarding of resources and assets owned by government and other partners placed in respective villages;
  • Bylaws enable communities to respond to national programmes when required through the collective assistance of village councils; and
  • Traditional and formal legal/government processes can collectively support the development and sustainability of a community.
  1. ‘Marrying’ traditional and formal law does not require a legal system overhaul

The traditional governance framework has been in place for centuries. Samoa has the benefit of largely autonomous villages, with traditional roles cemented in the Constitution. This means that while they must still be governed by the Constitution and the Village Fono Act 1990, the ability of the village to ‘marry’ traditional/customary practice/law to the formal law of the country, specifically the Constitution, is not overly bureaucratic. The cataloging and compiling of bylaws for registration reaffirms this important reality. All of the bylaws collected were generally related to the Constitution. However, some of the sanctions suggested, exercised and practiced, neededassistance to align them with the practices at the national level.

The issue at hand, therefore, is how to encourage villages to accept and appreciate the role that formal government systems and law can and should play in their daily lives. The registration of bylaws has provided an interface between the Central Government in Samoa and the local governments. This interface not only builds relationships and collaboration, but it also reduces crime, maintains village security and ensures the safety of people and their resources. With bylaws, village councils and their contribution to the development of Samoa appropriately recognized to govern, manage and monitor local governments in Samoa. This interface enables both systems of government to identify common ground and work collectively towards the social, economic and governance of the people of Samoa.

 

[1]The formal practice expects the presentation of fine mats and money and a formal speech. In exchange the deceased’s family will often exchange these with other fine mats, food, including cows, pigs and boxes of tinned fish, corned beef and often money.

[2] VSDPs were developed using the Appreciative Inquiry Methodology, Assets Based Development methodology and Participatory Rural Appraisal tools. Every plan has certain priorities and goals and a work plan for implementation. Sub committees are also organized to lead the implementation at each village.

[3] A non-traditional village is a village without formal salutations and honorific as all or most of its land are freehold lands. Salutations and honorific are determined by land and resources over centuries.

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