Is the election over?

One week since the election, Friday's declaration of official results was in many ways a moment of relief for the nation after the closest election in Samoa's history. 

Settling even the extraordinary result brought the comforts of closure and certainty. 

But it appears exceedingly likely that the confirmation of the national count by the Head of State, His Highness Tuimaleali’ifano Vaaletoa Sualauvi II, will bring an end to the national election drama. 

The election being tied strongly incentivises parties to challenge results in court: even a single victory could change the balance of power in the next Parliament.

And as Faatuatua i le Atua Samoa ua Tasi (F.A.S.T) party leader, Fiame Naomi Mataafa confirmed on Saturday the opposition party is preparing to both defend its candidates against an expected onslaught of petitions. 

But it also has challenges of its own planned. 

“We are not only [going to be] responding but we are also looking at issues where we would make submissions to the court with respect to irregular issues under the Electoral Act,” she said.

The Human Rights Protection Party (H.R.P.P.) has imposed a strict media ban on its members until Government is formed on the floor of Parliament.

But independently corroborated reports from inside the H.R.P.P.'s post-election camp from losing candidates and current senior M.P.s alike have confirmed that they will be pursuing precisely the same strategy.

If the election is decided through the courts (the Supreme Court can declare an election result void if the victorious M.P. is found to have acted improperly, forcing a by-election) the H.R.P.P. could even have the advantage.

The H.R.P.P. has a funding war chest, but it's questionable whether F.A.S.T. will be able to raise enough money to fund as many challenges as it would like by the time they begin to be lodged next week. It's unclear whether funding legal battles will be as attractive a message to the party's overseas donors as its successful fundraising campaign to change the Government, which brought in such large amounts of money for F.A.S.T. 

(When pressed on the size of F.A.S.T.'s legal team on Saturday, leader Fiame Naomi Mataafa declined to go into specifics.)

Indeed, mounting election petitions may well have been part of the H.R.P.P.'s strategy from the beginning, despite outward displays of bravado such as predictions of huge majorities. 

H.R.P.P. insiders confirmed that Tuilaepa repeated and sharpened his critiques of F.A.S.T. 's campaign “roadshow” events in the leadup to the election during confidential meetings. He used them as an example for why their party candidates should comply with the law absolutely. 

At the same time, H.R.P.P. legislators were upping their criticism of the "roadshow" events, using parliamentary privilege to allege that they violated electoral law by providing villages with in-kind and monetary support. F.A.S.T. responded that it was merely following cultural tradition. 

The caretaker Prime Minister also urged party supporters to crash F.A.S.T. events with a view to ensure there were plenty of witnesses to what transpired. 

On its face, there appears to be a serious possibility that election lawfare and sending voters back to the polls could well determine the 2021 election.

So far only F.A.S.T. and defeated former Finance Minister Sili Epa Tuioti have openly played their hands about pursuing challenges (the latter only hours after the unofficial count on election night showed him trailing in results).

But all the indications suggest that petitions will be mounted and that it won't take much for them to change or even delay democracy. 

Recent history shows petitions are certainly capable of changing election outcomes.  

In 2011, voters were sent back to the polls four times after victorious candidates were found to have violated laws against bribery or cheating. 

But launching lawsuits can be a dangerous game in the world of politics and any party banking on a lawsuit for victory could be far too optimistic. The successful challenges of the 2011 election included one memorable case in which a victory was overturned but it was a petitioner’s campaign who the court found had violated laws more extensively, including making cash payments for votes.

But nonetheless, a total of two seats were gained by the H.R.P.P. as a result of the by-elections that followed the successful petitions of the 2011 election. 

Two similarly successful challenges in the coming months would be, of course, enough to change the dynamic of the next Parliament completely. 

In 2016, some five petitions were filed but all were withdrawn or settled out of court. That is perhaps not surprising given the sheer dominance of the H.R.P.P.’s win but also a useful reminder that politicians by nature are often given to talk more than action so talk of challenges must always be taken with a grain of salt. 

But in a deadlocked environment there is everything to gain from a party even trying its luck to overturn a result in court. 

And since the last time Samoans went to the polls, the court has become a much more powerful political weapon. The Electoral Act has been significantly tightened and there were even complaints openly made during pre-polling of candidates' campaign committees staying closer to polling booths than they were legally allowed. Some habits die hard but can carry major consequences. 

Which way the chips will fall in any legal challenge is beyond anyone’s cognition. But old arguments about the distinction between culturally appropriate gift-giving and bribery and several other arguments will come before the nation’s judges. 

The putative kingmaker of 2021, Tuala Iosefo Ponifasio is yet to declare his intentions. But it could yet prove that his support is not necessary to form a Government if challenges are successful.

But the constitution decrees that a Government must be formed 45 days out from the election. 

The Supreme Court, meanwhile, has apparently given itself two months to deal with all election challenges. 

But that does not mean contested results will be resolved so quickly. In 2011 by-elections for successful challenges were held in July after a March general election. 

Samoa's move to tighter political regulation and cleaner politics is to be encouraged. And the force of prohibitions such as those in the Electoral Act reinforced by legal action. 

While we have no problem with the judicial branch deciding if elections were won fairly it ultimately must be a secondary issue to forming Government on the floor of Parliament. Challenges and by-elections, should they eventuate, are perfectly capable of continuing in the background while the business of Government resumes. 

Elections, after all, are about results. There are two things Samoa's democracy could do without: a hamstrung Government and a nation fixated yet again on the outcome of cliffhanger election battles. 

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