The Anoama’a No. 2 seat runner-up, who was found guilty on Wednesday of illegal practice by the Supreme Court, is still eligible under a constitutional provision that requires a minimum of six women sit in Parliament.

Petitioner Toomata Norah Leota failed to unseat the deputy leader for the Human Rights Protection Party (H.R.P.P.), Lauofo Fonotoe Lauofo in an election petition decided by the Supreme Court on Wednesday.

Lauofo, who is the Member-elect for Anoama’a No. 2 and senior H.R.P.P. member, had five allegations of bribery and treating leveled against him dismissed in their entirety.

However, his rival and Fa’atuatua i le Atua Samoa ua Tasi (FAST) candidate who filed the election petition was found guilty of one count of illegal practice, relating to the party’s roadshow in Solosolo.

All other claims of bribery and treating that Toomata was accused of were also quashed by the Court on Wednesday in a decision delivered by Justice Lesatele Rapi Vaai and Justice Fepuleai Ameperosa Roma.

Compared to other election petitions – where the candidates found guilty of bribery and treating were prohibited from contesting for 15 years and their elections voided – Toomata would not share the same fate.

According to lawyer Alex Sua, who represented Toomata in the proceedings, section 117 (2) of the Electoral Act 2019 says being guilty of an illegal practice does not void a candidate’s election.

“So in the case of Toomata here candidacy and election remains standing and is not voided,” he said.

“It is only when one is found guilty of corrupt practice that voids his/her candidacy and election.”

The decision means that Toomata is not disqualified to run in future elections and is also eligible under the Article 44 1A constitutional provision – if no other female candidate wins the by-elections and claims higher votes – than her and Aliimalemanu Alofa Tuuau.

The Constitution provision requires six women in parliament and can only be activated by the Electoral Commissioner after all by-elections are determined. 

Currently there are four women Members-elect in the Legislative Assembly after the fifth elected female Member-elect Leota Tima Leavai resigned as part of a election petition withdrawal arrangement.

This falls short of two elected Members-elect needed to meet the constitutional mandate in the Assembly.

Former M.P. for Alataua West, Aliimalemalemanu has the highest number of votes (in percentage) from her constituency and Toomata has the second highest ballots from the election.

If no other woman wins during the by-election or overcome the votes held by Aliimalemanu and Toomata from April’s election, it means the candidates will be appointed under the provision expanding of the Assembly seats to 53. 

In relation to the illegal activity allegation that the Court found Toomata guilty of it stemmed from a F.A.S.T. roadshow in Solosolo on 13 March 2021. 

The Court noted that section 100 provides that illegal practices where giving of money and food directly or indirectly during the “period of election”. 

The election period commenced on 10 March 2021 which was three days before the F.A.S.T. roadshow in Solosolo. 

The Court said illegal practices under section 100 creates a strict liability offence and it absolutely prohibits the giving or exchange of food with the exception of funeral during the period.

“Although ceremony or activity are not defined it is clearly implicit from the wording of the sections that any occasions other than a funeral in which Samoans are obligated or required by customs or traditions to make presentations of money, food or other valuable is ceremony or activity contemplated by section 100,” the Court judgment noted.

“The presentation of envelopes of money and food at the roadshow was an illegal activity under the Electoral Act.

“The F.A.S.T. party was quite entitled to hold its campaign rally in compliance with the approved methods in section 42 since the prohibited period for campaigning (the prohibited period) stipulated in section 43 has not commenced. 

“But the campaign rally activity must not involve the giving and exchange of food, money, fine mats or other valuable.” 

The decision by the Court was welcomed by Toomata who said that the case was not easy and likewise is the fight against the Government.

She pointed out incidents during the proceedings where there was witness tampering and five of her witnesses did not turn up to testify, justifying calls for a better system to be in place to protect witnesses.

Witnesses for the petitioner were threatened and some removed from the Court on the day of the hearing.

“There has been protection for witnesses here at the Court – in a room where they are safe during proceedings,” said Toomata.

“Not only for that but also dealing with those that interfere with justice and threaten people…freedom is very crucial.”

In addition she acknowledged her lawyers and judges for their work.

Mr. Sua and Fetu Lagaaia represented Toomata while lawyers Tuatagaloa Shane Wulf and Leinafo Taimalelagi acted for Lauofo.

The H.R.P.P. deputy leader declined to comment when contacted saying he will provide a statement at a later date.