Electoral Amendment Act

Link to law: http://www.palemene.ws/new/wp-content/uploads/01.Acts/Acts%202005/Electoral_Amendment_Act_2005_-_Eng.pdf
Published: 2005

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2005, No. 3

AN ACT to amend the Electoral Act 1963.
[31st January 2005]

BE IT ENACTED by the Legislative Assembly of Samoa in
Parliament assembled as follows:-

1. Short title and commencement-(1) This Act may be
cited as the Electoral Amendment Act 2005 and shall be read
with and form part of the Electoral Act 1963 (the Principal Act).
(2) This Act shall commence on a date nominated by the
Prime Minister.
(3) Notice of commencement shall be published in Samoan
and English in the Savali and one other newspaper circulating in
Samoa.
16 Electoral Amendment Act 2005, No.3

2. Interpretation-(1) Section 2 of the Principal Act is
amended by deleting the definitions of “Chief Electoral Officer”
and “Registrar” and inserting the following definitions in
correct alphabetical order:
“Electoral Commissioner” and “Commissioner” mean the
Electoral Commissioner appointed under section 3,
and includes any person appointed as Acting Electoral
Commissioner under section 3 and any person
authorised by the Electoral Commissioner or Acting
Electoral Commissioner to exercise the
responsibilities, functions, duties and powers of the
Electoral Commissioner or Acting Electoral
Commissioner, as the case may require;
“public service law” means any law in force relating to the
public sector and includes -
(a) the Public Service Act 2004; and
(b) the Public Finance Management Act 2001;
“Standing Orders” means the Standing Orders of the
Parliament of Samoa.
(2) The Principal Act is amended by deleting the words
“Chief Electoral Officer”, “Registrar of Electors and Voters”,
“Registrar”, “Chief Electoral Officer and the Registrar”, “Chief
Electoral Officer or the Registrar” wherever such words appear,
including the forms in the First Schedule and all headings, and
substituting the word “Commissioner”, save for the forms in the
First Schedule where the words “Electoral Commissioner” shall
be substituted.

3. Office of Electoral Commissioner – The Principal Act
is amended by deleting the heading “Officers” (after section 2)
and sections 3 and 4 and substituting the following:

“Office of Electoral Commissioner

3. Electoral Commissioner-(1) Subject to this section,
there shall be appointed by the Head of State, acting on the
advice of Cabinet, an Electoral Commissioner who shall
have and exercise the responsibilities, functions, duties and
powers conferred by this Act and any applicable law.
2005, No.3 Electoral Amendment Act 17

(2) The Commissioner shall:
(a) hold office for a period of three years on terms
and conditions approved by Cabinet;
(b) be paid such salary, allowances and other
benefits as determined by Cabinet, following
receipt by Cabinet of a report from the
Remuneration Tribunal in accordance with
the provisions of the Remuneration Tribunal
Act 2003;
(c) not hold any other public office or engage in any
business or other employment without the
prior written approval of Cabinet;
(d) at the time of appointment and whilst holding the
position of Commissioner, not:
(i) be a member of any political party; or
(ii) assist, support or endorse any
Member, any Candidate and any person who
has declared an intention to become a
Candidate, other than performing the
Commissioner’s responsibilities, functions,
duties and powers under this Act;
(e) be subject to public service law; and
(f) be eligible for re-appointment, subject to
compliance with this Act and satisfactory
performance.
(3) The office of Commissioner shall be vacated
immediately if the Commissioner:
(a) breaches subsection (2)(c) or (2)(d) or (4); or
(b) is declared bankrupt in Samoa or elsewhere; or
(c) at the time of appointment and whilst holding the
position of Commissioner, has a conviction
or is convicted for any offence, in Samoa or
elsewhere:
(i) under this Act; or
(ii) involving dishonesty or corruption; or
18 Electoral Amendment Act 2005, No.3

(iii) where the penalty for such offence
includes imprisonment for 1 year or longer
(irrespective of whether such penalty has
been or is imposed concerning such
conviction); or
(d) is determined by a medical practitioner to be
unable to perform the Commissioner’s
responsibilities, functions, duties and powers
due to any physical or mental incapacity; or
(e) is absent from duty or Samoa for a period of 5
consecutive days without the Minister’s
written consent or other lawful excuse; or
(f) after due enquiry, is declared by the Chief Justice
of the Supreme Court to have engaged in any
personal or official conduct or other
behaviour in Samoa or elsewhere which the
Chief Justice determines, acting in the Chief
Justice’s absolute discretion, could bring or
has brought into disrepute or could or has
cast doubt on the integrity or honesty or
impartiality of:
(i) the office of Commissioner; or
(ii) the Samoan electoral process; or
(iii) the proper administration of this Act.
(4) Upon appointment and annually thereafter by the
30th
day of June the Commissioner shall provide the Head of
State, the Speaker, the Minister and the Clerk of the
Legislative Assembly with a Declaration of Pecuniary
Interests and Convictions in a form approved by the
Attorney General.
(5) The Declarations under subsection (4) shall be
available for public inspection without cost at the Office of
the Clerk of the Legislative Assembly during normal
business hours.
(6) Where:
(a) the Office of Commissioner is vacant; or
(b) the Commissioner is on leave or absent from
duty; or
2005, No.3 Electoral Amendment Act 19

(c) for any other reason the Commissioner is unable
or unwilling to perform the Commissioner’s
responsibilities, functions, duties and powers,
the Head of State, acting on the advice of Cabinet, may appoint
a person qualified to be Commissioner under this section as
Acting Electoral Commissioner for a period no longer than
3 months.
(7) An Acting Electoral Commissioner appointed under
subsection (6) shall:
(a) be subject to the provisions of this Act, including
this section, in so far as such provisions are
consistent with subsection (6);
(b) exercise the Commissioner’s responsibilities,
functions, duties and powers; and
(c) during such appointment, be deemed for all
purposes to be Commissioner.

3A. Responsibilities, functions, duties and powers of
the Commissioner-(1) The Commissioner shall have the
following responsibilities, functions and duties:
(a) To exercise the responsibilities, functions, duties
and powers given to the Commissioner under
this Act and any applicable law;
(b) To advise the Head of State, the Legislative
Assembly and any Committee of the
Legislative Assembly (through the Speaker),
the Government and the Minister concerning
Samoa’s electoral system, policies and laws;
(c) To provide reasonable and appropriate assistance
and advice to the Speaker, Members, the
Clerk of the Legislative Assembly,
Candidates and persons declaring an
intention to become a Candidate as to their
compliance with the provisions of this Act
and any applicable law;
(d) Upon written direction from the Legislative
Assembly (through the Speaker) or Cabinet
20 Electoral Amendment Act 2005, No.3

(through the Minister) or the Minister or by the
Commissioner’s own determination, to
initiate, sponsor, carry out and publish
studies and research on Samoa’s electoral
system and laws;
(e) To undertake public awareness and education
programs concerning Samoa’s electoral
system and laws;
(f) Within 6 months of the end of each financial year
to prepare and provide to the Minister an
annual report on the work of the office of the
Commissioner, such report to include
financial statements and accounts and audit
report on such statements and accounts in a
form approved and audited by the Controller
and Chief Auditor;
(g) Within 6 months from the date of each General
Election and each by-election to prepare and
provide to the Speaker a report on the
conduct and result of such election;
(h) To provide, in cases approved by Cabinet,
assistance in matters relating to elections and
referendums (including the secondment of
personnel and the supply or loan of
materials) to authorities of foreign countries
and international and regional organisations;
and
(i) To perform such other responsibilities, functions,
duties and powers conferred on the
Commissioner under any other law.
(2) Upon receipt of a report under:
(a) subsection (1)(f), the Minister shall lay the report
before the Legislative Assembly forthwith;
(b) subsection (1)(g), the Speaker shall lay the report
before the Legislative Assembly forthwith.
(3) The Commissioner shall have the power to exercise
all of the responsibilities, functions and duties conferred by
this Act and any applicable law.
2005, No.3 Electoral Amendment Act 21

3B. Officers of the Commissioner-(1) Subject to
subsection (5), the Public Service Commission may appoint
on the recommendation of the Commissioner:
(a) An Assistant Electoral Commissioner and other
Officers and Assistants as required;
(b) Returning Officers, Deputy Returning Officers,
polling officers, Deputy Registrars and such
other officers and clerks as required to carry
out the provisions of this Act; and
(c) Substitutes for any persons appointed under
paragraph (a) to act in case of their sickness,
absence, death or removal.
(2) Substitutes appointed under subsection (1)(b) shall
have all the responsibilities, functions, duties and powers of
the persons for whom they are acting.
(3) For all purposes the fact that a substitute so acts
shall be sufficient evidence that the substitute is authorised
so to act.
(4) All persons appointed under this section shall be
subject to the authority and direction of the Commissioner.
(5) Subject to subsection (4), every:
(a) Deputy Returning Officer shall have and may
exercise in and about the polling place for
which the officer is appointed all of the
responsibilities, functions, duties and powers
of a Returning Officer; and
(b) Deputy Registrar shall have and may exercise all
of the responsibilities, functions, duties and
powers of the Commissioner.

4. Duty to report suspected breaches-(1) All persons
employed in the office of the Commissioner or under the
authority or direction of the Commissioner shall promptly
report to the Commissioner any breach or suspected breach
of any of the provisions of this Act or any applicable law.
(2) Where:
(a) the Commissioner receives a report under
subsection (1); or
22 Electoral Amendment Act 2005, No.3

(b) the Commissioner becomes aware of any breach
or suspected breach of the provisions of this
Act or any applicable law,
the Commissioner shall ensure that such breach or
suspected breach is reported to the appropriate
authority for investigation, prosecution or other
action, as the case requires.”

4. Political Parties - Part IIA of the Principal Act is
amended by inserting the following after section 15E:

“15F. Election of Candidates - Notwithstanding any
other law, including but not limited to Standing Orders:
(1) Subject to subsections (3), a Candidate elected as a
Member, where the ballot paper for such election cites the
Candidate’s membership of a political party, shall sit in the
Legislative Assembly as a member of that political party
during the term for which the Candidate was so elected.
(2) Subject to subsection (4), a Candidate elected as a
Member, where the ballot paper for such election cites the
Candidate as independent (meaning the Candidate is not a
member of a political party at the time of election), may,
prior to taking the oath of allegiance, join a political party in
the manner provided by Standing Orders and thereafter such
elected Candidate shall sit in the Legislative Assembly as a
member of that political party during the term for which the
Candidate was so elected.
(3) Subject to subsection (4), a Candidate elected as a
Member, where the ballot paper for such election cites the
Candidate’s membership of a political party and upon
election, but prior to taking the oath of allegiance, it appears
that such political party does not have sufficient
membership to be recognised as a political party in the
Legislative Assembly under Standing Orders, may, prior to
taking the oath of allegiance, join another political party or
become an independent in the manner provided by Standing
2005, No.3 Electoral Amendment Act 23

Orders and thereafter the elected Candidate shall sit in the
Legislative Assembly as a member of such other political
party or as an independent, as the case may require, during
the term for which the Candidate was so elected.
(4) Where:
(a) a Candidate elected as a Member is or becomes,
as the case may be, a member of a political
party in accordance with subsection (1) or (2)
or (3); and
(b) the Candidate resigns subsequently from such
political party and becomes a member of
another political party during the term for
which the Candidate was so elected,
the seat of such Candidate as a Member of Parliament shall
become vacant and such Candidate shall be disqualified from
holding such seat.”
(2) Section 10 of the Principal Act is amended by inserting
the following in correct alphabetical order:
“(j) If the Member acts in accordance with the
provisions of section 15F(4)(a) and (b); or.”

5. Identity of electors and voters-(1) The Principal Act is
amended by inserting the following after section 25B(1):
“(1A) Subsections (1A) to (1K) inclusive shall apply to
Parts III, IV and V of this Act.
(1B) Despite the other provisions of this Act, where
there is any inconsistency between this section and the
provisions in Parts III, IV and V, this section shall prevail to
the extent of such inconsistency.
(1C) At the time of receiving an application for
registration or re-registration or transfer of registration as an
elector or voter, the Commissioner shall photograph or
cause to be photographed the person seeking such
registration or re-registration or transfer of registration, as
the case may require.
24 Electoral Amendment Act 2005, No.3

(1D) Subject to subsection (1J), where a person referred
to in subsection (1C) is registered or re-registered as an
elector or voter or whose registration as an elector or voter
is transferred in accordance with this Act, the Commissioner
shall record or print the person’s photograph on the
appropriate roll adjacent to the name of the person.
(1E) Where a roll is used in a General Election or By-
election, the Commissioner and all electoral officials shall
use rolls prepared in accordance with subsection (1D).
(IF) Where a roll is required by this Act or any other law
to be available for public or other inspection or use
(howsoever described), the Commissioner shall provide or
produce, as the circumstances require, such roll without the
photographs required under subsection (1D).
(1G) Where for any reason a person applying for
registration or re-registration or transfer of registration as an
elector or voter fails or refuses or is unable to be
photographed in accordance with subsection (1C), the
Commissioner shall not register such person on a roll as an
elector or voter.
(1H) Every person registered as an elector or voter as at
the date of commencement of the Electoral Amendment Act
2005 shall be required to re-apply for such registration in
accordance with the provisions of this Act and this section
at a time and place and in such manner determined by the
Commissioner by Public Notice.
(1I) Every person registered and photographed in
accordance with this Act and this section shall be required
to be re-photographed in accordance with the provisions of
this section at time intervals of not less than 9 years and not
more than 10 years from the date on which the person was
last photographed under this section at a time and place and
in such manner determined by the Commissioner by Public
Notice.
(1J) The Commissioner shall substitute photographs of
electors and voters taken in accordance with subsection (1I)
for previous photographs of electors and voters taken,
recorded or printed in accordance with the provisions of this
section, as the case may require.
2005, No.3 Electoral Amendment Act 25

(1K) Every person required to be photographed in
accordance with this section who fails to do so without
lawful excuse commits an offence punishable by a fine not
exceeding 1 penalty unit.”
(2) The Principal Act is amended by:
(a) deleting from section 5(1) the words “is the holder
of a Certificate of Identity pursuant to section
135A of that Act”;
(b) deleting from section 22(2) all words after the words
“individual voters’ roll”;
(c) deleting section 25C(6);
(d) deleting from section 70A the words “to section 70B
and”;
(e) deleting section 135A; and
(f) deleting section 70B.

6. Qualification of electors–(1) Section 16 of the Principal
Act is amended by deleting subsections (2)(b)(d)(e)(f), (3), (4),
(5), (6), (7) and (8) and substituting the following:
“(2)(b) If the elector is not the holder of a Matai title,
the elector shall be registered in:
(i) the constituency in which the elector
resides; or
(ii) if the elector is the spouse or parent or
child or brother or sister of a Matai and
such elector chooses, the constituency in
which such Matai is registered.”
(3) Subject to this Act, an elector shall be eligible to
transfer the constituency in which the elector is
registered once only between general elections.”
(2) Section 19 of the Principal Act is amended by deleting
from subsection (1)(b)(i) the word “grandchild”.
26 Electoral Amendment Act 2005, No.3

7. Conduct of “O’o” and “Momoli” – The Principal Act
is amended by inserting the following after section 97:
“97A. Conduct of “O’o” and “Momoli” – Despite the
other provisions of this Act, the traditional presentation of
“O’o” and “Momoli” by a Member or Candidate for
Parliament or a person acting on behalf of such Member or
Candidate shall not be considered as treating or bribery or
an illegal or corrupt activity or practice provided that the
presentation is made within the period commencing with the
180th
day and ending with the 90th
day from expiry of the
then Parliament at 5 years from the date of the last
preceding General Elections.”



____________________


The Electoral Amendment Act 2005 is administered in the
Ministry of Justice and Courts Administration