U.S. Department of State Country Report on Human Rights Practices 2004 - Samoa
|Publisher||United States Department of State|
|Publication Date||28 February 2005|
|Cite as||United States Department of State, U.S. Department of State Country Report on Human Rights Practices 2004 - Samoa , 28 February 2005, available at: http://www.refworld.org/docid/4226d97920.html [accessed 17 December 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Released by the Bureau of Democracy, Human Rights, and Labor
February 28, 2005
Samoa is a parliamentary democracy that incorporates certain traditional practices into its governmental system. The Constitution provides for a head of state; a unicameral legislature elected by universal suffrage and, in practice, composed primarily of the heads of extended families, or "matai"; the protection of land rights and traditional titles; and other fundamental rights and freedoms. In 2001, the Human Rights Protection Party (HRPP) won reelection to its sixth consecutive term as the governing party. The election was marred by charges of bribery. In 2001, as a result of election challenges filed by losing candidates, the Supreme Court ordered four by elections; the HRPP won all four. Executive authority is vested in the Head of State with the Government administered by the Cabinet, which consists of the Prime Minister and 12 ministers chosen by him. All laws passed by the Legislative Assembly need the approval of the Head of State, Malietoa Tanumafili II, who holds the position for life. The Legislative Assembly is to elect his successors for 5 year terms. The judiciary is independent.
The civilian authorities maintained effective control over the small national police force, but it had little effect beyond Apia, the capital city. The country has no defense force. There were no confirmed reports that security forces committed human rights abuses. Enforcement of rules and security within individual villages is vested in the "fono" (Council of Matai), which settles most internal disputes. Judgments by the fono usually involve fines or, more rarely, banishment from the village.
The economy is market based. The population was approximately 199,000 as of December 2003, according to the Government Statistics Department. More than 60 percent of the workforce was engaged primarily in agriculture. The country was heavily dependent on foreign aid and on remittances sent to family members by the more than 100,000 citizens living abroad. The Government reported a 3.5 percent increase in gross domestic product (GDP) in 2003, with a per capita GDP of approximately $1,850. Wages and benefits did not keep pace with inflation, which was nearly 13 percent for the year.
The Government generally respected the human rights of its citizens; however, there were problems in some areas. The law and the courts addressed some of these problems. Political discrimination against women and non matai was a problem. Societal pressures and customary law may interfere with the ability to conduct fair trials. Those who do not conform to accepted societal values may face pressure, threats, violence, and banishment. However, in April 2003, the Supreme Court overturned a lower court ruling and found that a village fono had acted illegally when it banished some residents for their religious activities. The ruling affirmed that both statutory and customary laws are subject to the individual rights provided for in the Constitution. Violence against women and children was a problem.
RESPECT FOR HUMAN RIGHTS
1. Respect for the Integrity of the Person, Including Freedom From:
a. Arbitrary or Unlawful Deprivation of Life
There were no politically motivated killings by the Government or its agents; however, in July, police officer Tupou Ainu'u was charged with murder in the death of a man in police custody. In September, the charge was reduced to manslaughter. The officer allegedly arrested the victim for disorderly conduct and took him to the Apia police station, where the victim continued to be disorderly. According to the officer, he attempted to subdue the victim, and in the ensuing altercation, the victim fell backward and struck his head on the wall and floor, rendering him unconscious. The victim was transported to a hospital, but was pronounced dead on arrival. Ainu'u pleaded not guilty and was suspended pending the outcome of his trial, scheduled for February 2005.
There were no further developments in the 2002 case of parliamentary by election candidate Taliaoa Taamilosaga and three other persons, whose deaths in a fire were ruled homicides. Due to a lack of evidence, no one was charged in the case, although the police file remained open at year's end.
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law prohibits such practices, and there were no reports that government officials employed them.
Prison conditions generally appeared to meet international standards, although they were fairly basic with respect to food and sanitation. Prison policy permitted inmates with medical conditions to retain their respective medications and to take them as prescribed; however, during the year, a diabetic paraplegic prisoner died after he was locked in an isolation cell as punishment for suspected marijuana use and reportedly did not have access to his medication. The case was referred to the Police Commissioner for investigation. According to the Commissioner, the prisoner had his medications at the time of his death and a postmortem examination found that the prisoner's death was not related to his medications.
Within the country's sole prison, men and women were housed separately, juveniles were held separately from adults, and pretrial detainees were separated from convicted prisoners.
There were no known requests by independent human rights observers to visit the prison; however, the Government indicated that it would permit such visits. The Government also permitted visits by family members and church representatives.
d. Arbitrary Arrest or Detention
The Constitution prohibits arbitrary arrest and detention, and the Government generally observed these prohibitions.
The country's police, prison guards, and firefighters all belong to a consolidated national service. A commissioner appointed to a fixed 3 year term of office heads this service. He is assisted by four assistant commissioners and reports to the Minister of Police. Corruption and impunity were not significant problems among the police; however, a lack of resources limited police effectiveness.
The law provides for issuance by the Supreme Court of an arrest warrant based on sufficient evidence, and the Government generally adhered to this provision in practice. The law provides for the right to a prompt judicial determination regarding the legality of detention, and the authorities generally respected this right in practice. Detainees are informed within 24 hours of the charges against them, or they are released. Detainees were allowed prompt access to family members and a lawyer of their choice. If the detainee is indigent, the Government provides a lawyer. There was a functioning system of bail.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary, and the Government generally respected this provision in practice.
The judiciary consists of the District Court, the Lands and Titles Court, the Supreme Court, and the Court of Appeals. The Court of Appeals is the highest court. It has appellate jurisdiction only and can review the rulings of any other court. It is composed of a panel of retired New Zealand judges and sits once a year for several weeks.
The law provides for the right to a fair trial, and an independent judiciary generally enforced this right. The accused must be charged within 24 hours. A trial judge examines evidence and makes a determination as to whether there are grounds to proceed. Trials are public, and defendants have the right to be present and to timely consultation with an attorney, at public expense if required. Defendants may confront witnesses and present witnesses and evidence on their own behalf. Defendants and their attorneys have access to government held evidence, and defendants have the right to appeal a verdict.
However, many civil and criminal matters were handled by village fono, which varied considerably both in their decisionmaking style and in the number of matai involved in the decisions. The 1990 Village Fono Act gives legal recognition to the decisions of the fono and provides for limited appeal to the Lands and Titles Court and to the Supreme Court. In 2000, the Supreme Court ruled that the Village Fono Act may not be used to infringe upon villagers' freedom of religion, speech, assembly, or association. More recent court decisions reinforced this principle (see Section 2.c.).
There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law provides substantive and procedural safeguards against invasion of the home or seizure of property, including a requirement for search warrants, which are issued by the judicial branch. However, there was little or no privacy in villages. While village officials by law must have permission from a judge to enter a resident's home without the resident's consent, there can be substantial societal pressure on the resident to grant such permission.
In accordance with traditional law, village fono may impose a punishment of banishment (see Section 2.d.).
2. Respect for Civil Liberties, Including:
a. Freedom of Speech and the Press
The Constitution provides for freedom of speech and of the press, and the Government generally respected these rights in practice and did not restrict academic freedom. The law requires journalists to reveal their sources in the event of a defamation suit against them; however, there has been no court case invoking this law.
Three English language newspapers and a number of Samoan language newspapers were published regularly. In January, the Safotu village fono reportedly imposed a fine (consisting of several food items) on a journalist for the Samoa International newspaper for publishing a story deemed damaging to the village.
The Government operated one of the country's two television stations. There were five private radio stations, and a satellite cable system was available in parts of Apia. In addition, approximately one third of the population was within the broadcast area of the television station in American Samoa.
The Government did not restrict Internet use.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for freedom of assembly and association, and the Government generally respected these rights in practice. In 2000, the Supreme Court ruled that the Village Fono Act may not be used to infringe upon villagers' freedom of religion, speech, assembly, or association (see Sections 1.e. and 2.c.).
c. Freedom of Religion
The Constitution provides for freedom of religion, and the Government generally respected this right in practice.
The Constitution acknowledges "an Independent State based on Christian principles and Samoan custom and traditions." Although Christianity is favored constitutionally, there is no official or state denomination.
The Constitution grants each person the right to change religion or belief and to worship or teach religion alone or with others; however, in practice, the matai often choose the religious denomination of the extended family. In past years, despite the constitutional protection, village fono in the name of maintaining social harmony within the village sometimes banished or punished families that did not adhere to the prevailing religious belief in the village. However, civil courts take precedence over village fono in matters involving the exercise of constitutional rights, and courts have ordered families readmitted to their villages. During the year, there were no new cases of individuals being banished by villages due to their practicing religion differently from that practiced by the village majority. However, in February, the Lands and Titles Court ordered the Salamumu village fono to readmit 3 families, consisting of approximately 80 persons, who were banned from the village in 1998 for organizing Bible study classes with the intention of establishing a new church there. In February, the families returned to Salamumu and, at year's end, were living there without incident. The court's order was the latest in a series of judicial decisions in recent years that affirmed that all laws, whether statutory or customary, are subject to the individual rights provided for in the Constitution.
For a more detailed discussion, see the 2004 International Religious Freedom Report.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
The Constitution provides for these rights, and the Government generally respected them in practice; however, villages are governed by traditional law, and village fono have the authority, which they regularly employed, to ban citizens from village activities or to banish them from the village – one of the harshest forms of punishment in this collective society – for failing to conform to village laws or to obey fono rulings. In some cases, civil courts have overruled banishment orders (see Sections 1.e. and 2.c.).
The law prohibits exile, and the Government did not use it.
The Government actively supported emigration as a "safety valve" for the pressures of a growing population, especially for potentially rebellious youths, and because it generated income through remittances.
The country is a signatory of the 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol; however, the Government has not enacted enabling legislation or established a system for providing protection to refugees. Nevertheless, the authorities have indicated that they would conform to international norms if such cases should arise. The Government was prepared to cooperate with the office of the U.N. High Commissioner for Refugees and other humanitarian organizations in assisting refugees; however, the need did not arise during the year.
3. Respect for Political Rights: The Right of Citizens to Change Their Government
Citizens have the right to change their government through direct multiparty elections held on the basis of universal suffrage; however, women's right to serve in elected office is restricted by the fact that few of them are family heads (matai). While the Constitution gives all citizens above the age of 21 the right to vote and run for office, by social custom candidates for 47 of the 49 seats in the Legislative Assembly are drawn from the approximately 25,000 matai. The Constitution reserves the remaining 2 seats for "at large" voters (primarily citizens who are not of full Samoan ethnic heritage and lack strong ties to one of the 47 village based electoral districts). Matai are selected by family agreement; there is no age qualification. Although women sometimes are selected, 95 percent of matai are men. Matai control local government through the village fono, which are open to them alone.
The HRPP has dominated the political process, winning six consecutive elections since 1982. Although candidates were free to propose themselves for electoral office, in practice, they usually required the approval of the senior matai of the villages within their electoral district.
In the March 2001 elections, the HRPP won 23 seats and declared victory 2 weeks later when 5 opposition party members switched to the HRPP. The elections were marred by charges of bribery, and 10 losing candidates initially filed election challenges. In August 2001, the Attorney General intervened to foreclose further challenges and thereby prevented as many as 40 additional challenges from being filed. In September 2001, following a series of trials, the Supreme Court ordered four by elections. The HRPP won all four.
Retaliation was directed against witnesses who testified in the bribery cases. In March 2001, the Afega village fono banished 10 persons and their families for giving evidence in such a case; however, in June 2001, the Supreme Court overturned the village fono order, and the persons returned to their village. Some candidates who ran against the wishes of their village fono were banished. For example, in January 2001, Aeau Peniamina Leavai, former Speaker of Parliament, and his family were banned from entering his village of Falealupo, reportedly because he ran for Parliament against the wishes of the village fono. In 2002, the authorities determined that the deaths in a fire of four persons, including a candidate in a parliamentary by election who had refused to withdraw in favor of the village leadership's preferred candidate, were homicides (see Section 1.a.).
On March 20 and November 26 respectively, by elections were held to fill seats left vacant by the deaths of two Members of Parliament; HRPP candidates won both seats. At year's end, the HRPP held 32 of the Parliament's 49 seats.
There were no prohibitions on the formation of opposition parties, and there were several such parties.
Government corruption did not appear to be a major problem, although there were some instances of corrupt practices such as bribery and misuse of public funds. During the year, charges were brought against several current and former Ministry of Health employees for theft of government funds; the alleged incidents occurred in 2002. At year's end, the cases were pending, and investigation into the alleged financial irregularities at the Ministry was continuing. The Chief Executive Officer of the Ministry, during whose tenure the alleged offenses occurred, was suspended in September; his employment contract expired in November.
The 1988 Ombudsman Act provides for an ombudsman with the authority to investigate complaints by both citizens and noncitizens concerning administrative actions by government agencies, officials, or employees, including allegations of corruption. Under the act, the Ombudsman may require the Government to furnish the Ombudsman with information relating to any matter that is the subject of a complaint.
Under the 1974 Government Proceedings Act, government information is subject to disclosure to parties to any civil proceeding involving the government, unless the information is considered privileged or, in the opinion of a Minister of Government, its disclosure would harm the public interest.
There were 3 women in the 49 member legislature, and 1 woman in the 13 person Cabinet. The political rights of citizens who are not of ethnic Samoan heritage are addressed by the reservation of two parliamentary seats for "at large" voters. One cabinet minister was an at large M.P. of mixed European Samoan heritage. Citizens of mixed European Samoan or Chinese Samoan heritage were well represented in the civil service.
4. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
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.
5. Discrimination, Societal Abuses, and Trafficking in Persons
The Constitution prohibits discrimination based on race, sex, disability, language, or social status. Citizens of foreign heritage constituted approximately 3 percent of the population; they were not subjected to discrimination.
Politics and culture reflect a heritage of matai privilege and power, and members of certain families have some advantages. While there was discrimination against women and non matai, who only occasionally reached high office, women (and particularly the few female matai) played an important role in society.
While the law prohibits the abuse of women, social custom tolerates their physical abuse within the home; such abuse was common. The role and rights of the village fono and tradition prevented police from interfering in instances of domestic violence, unless there was a complaint from the victim which village custom strongly discouraged. While police received some complaints from abused women, domestic violence offenders typically were punished by village fono, but only if the abuse was considered extreme (that is, visible signs of physical abuse). Village religious leaders also may intervene in domestic disputes. The Government punished persons responsible for extreme assault cases, including by imprisonment.
The Government did not keep statistics on domestic abuse cases, but acknowledged the problem to be one of increasing concern. Under a project funded by the Australian government and attached to the Ministry of Police, the Government was working to develop an interagency approach to combat domestic violence. One aim of the project was to train police officers to respond to domestic disputes and to work with NGOs to support their counseling of victims and abusers. At year's end, proposed options to accomplish the project's goals were under consideration by the Government.
Many cases of rape still go unreported because tradition and custom discourage such reporting; spousal rape is not illegal. Nonetheless, the authorities noted an increasing number of reported cases of rape, as women slowly became more forthcoming with the police. Rape cases that reached the courts were treated seriously. Convicted offenders often were given sentences of several years' imprisonment.
Prostitution is illegal; it existed, but was not a major problem. The law does not address sex tourism specifically; however, it was not a problem. The law prohibits sexual harassment; it was not a widespread problem but was believed to be underreported.
Women have equal rights under the Constitution and statutory law, and the traditional subordinate role of women is changing, albeit slowly, particularly in the more conservative parts of society. The Ministry of Women, Community, and Social Development oversees and helps secure the rights of women. In order to integrate women into the economic mainstream, the Government sponsored literacy programs and training programs for those who did not complete high school.
The Government made a strong commitment to the welfare of children through the implementation of various youth programs by the Ministry of Education and the Ministry of Health. Education is formally compulsory through age 14; however, the Government did not enforce this law, and the children of families that could not pay the required school fees were unable to attend. Boys and girls were treated equally and attended school in approximately equal percentages. Most children attended school through junior high school. The Government provided health care for children at public hospitals for minimal charge. Law and tradition prohibit severe abuse of children, but both tolerate corporal punishment. The police have noted an increase in reported cases of child abuse, which was attributed to citizens becoming more aware of the need to report the physical, emotional, and sexual abuse of children. The Government aggressively prosecuted such cases. There were no reports of commercial sexual exploitation of children. The NGO Mapusaga o Aiga (Women against Domestic Violence) provided limited educational programs on children's rights.
There was one privately run behavior modification camp for foreign children with emotional or behavioral problems. The children were enrolled in the camp by their parents.
Trafficking in Persons
The law does not prohibit specifically trafficking in persons; however, unlike in the previous year, there were no reports that persons were trafficked to, from, or within the country.
Persons with Disabilities
There is no law pertaining specifically to the status of persons with disabilities or regarding accessibility to public buildings for them. Tradition dictates that families care for persons with disabilities, and this custom was observed widely in practice. There were no reports of discrimination against persons with disabilities in the areas of employment, education, access to health care, or in the provision of other state services. Many public buildings were old, and only a few were accessible to persons with disabilities. Most new buildings provided better access, including elevators in most multistory buildings.
The Ministry of Women, Community and Social Development has responsibility for protecting the rights of persons with disabilities.
6. Worker Rights
a. The Right of Association
Workers legally have unrestricted rights to establish and join organizations of their own choosing. There were no practical limitations to union membership, and approximately 20 percent of the private sector workforce was unionized. The Public Service Association, which represents government workers (an important sector of the work force), also functions as a union.
b. The Right to Organize and Bargain Collectively
While workers have the legal right to engage in collective bargaining, they seldom have practiced it, due to the relative novelty of union activity. The Public Service Association engages in collective bargaining on behalf of government workers, including bargaining on wages. Under the provisions of the Labor and Employment Act, arbitration and mediation procedures are in place to resolve labor disputes, although such disputes rarely arise.
The Supreme Court has upheld the right of government workers to strike, subject to certain restrictions imposed principally for reasons of public safety. Workers in the private sector have the right to strike, but there were no strikes during the year. The Ministry of Labor adjudicates any cases of anti union discrimination or of retribution against strikers or union leaders on a case by case basis.
There are no special laws or exemptions from regular labor laws in the sole export processing zone.
c. Prohibition of Forced or Compulsory Labor
The law prohibits forced or compulsory labor, including by children; however, in this collective society, persons, including minors, frequently were called upon to work for their villages. Most persons did so willingly; however, the matai may compel those who do not.
d. Prohibition of Child Labor and Minimum Age for Employment
Under the law, it is illegal to employ children under 15 years of age except in "safe and light work." The Ministry of Labor refers complaints about illegal child labor to the Attorney General for enforcement; however, no cases were prosecuted during the year. Children frequently were seen vending goods and food on Apia street corners. The Government has not made a definitive determination as to whether this practice violates the country's labor laws, which cover only persons who have a place of employment. Although the practice may constitute a violation of the law, local officials mostly tolerated it. There were no reports of compulsory labor by children; however, the law does not apply to service rendered to the matai, some of whom required children to work for the village, primarily on village farms (see Section 6.c.). The extent of this practice varied by village, but it generally did not significantly disrupt children's education.
e. Acceptable Conditions of Work
The law establishes a 40 hour workweek for the private sector and an hourly minimum wage of $0.55 (WS$1.60). An advisory commission to the Minister of Labor sets minimum wages. Wages in the private sector are determined by competitive demand for the required skills. The national minimum wage sufficed for a decent standard of living for a worker and family when supplemented by the subsistence farming and fishing in which most families engaged. The law provides that no worker should be required to work for more than 40 hours in any week.
The law also establishes certain rudimentary safety and health standards, which the Attorney General is responsible for enforcing. However, independent observers reported that the safety laws were not enforced strictly, except when accidents highlighted noncompliance. Many agricultural workers, among others, were protected inadequately from pesticides and other dangers to health. Government education programs were addressing these concerns. The law does not apply to service rendered to the matai. While the law does not address specifically the right of workers to remove themselves from a dangerous work situation, a report of such a case to the Commissioner of Labor would prompt an investigation, without jeopardy to continued employment. Government employees are covered under different and more stringent regulations, which were enforced adequately by the Public Service Commission.
The law protects foreign workers; minimum wage and working conditions standards apply equally to them.