COUNTRY REPORT: SAMOAClarence Joseph Nelson*
I. INTRODUCTION
Corrupt: dishonest, crooked, dishonourable, unscrupulous, untrustworthy. Can also mean: decadent,
degenerate, depraved, dissolute, immoral or perverse and wicked.
There are numerous forms of corruption that have arisen in this jurisdiction. This paper only proposes to
examine the more common and prevalent types drawing upon examples where possible.

II. RELEVANT LEGAL PROVISIONS
A. Crimes Ordinance Part V
Like most jurisdictions, there are extensive provisions under Samoan law making corruption in its
various forms a criminal offence and subject to the sanctions of the criminal law. Thus the Crimes Ordinance1961 Part V deals with crimes affecting the administration of law and justice and public administration, andPart VIII with crimes against rights or property. Part V provides for the offences of official corruption (s. 35),
perjury (s. 36), fabricating evidence (s. 37) and conspiring to defeat justice (s. 38). Of these, the mostsignificant would be s. 35 and s. 38. Section 35 creates the offence of official corruption and provides that“everyone commits the offence of official corruption and is liable to imprisonment for a term not exceeding
five years who (a) being the holder of any office, whether judicial or otherwise, in the service of the
Independent State of Samoa, corruptly accepts or obtains, or agrees to accept or attempts to obtain, forhimself or any other person any bribe, that is to say, any money or valuable consideration whatever, on
account of anything done or to be afterwards done by him in his official capacity; or (b) corruptly gives oroffers to any person holding any such office or to any other person any such bribe as aforesaid on account of
any such act.”
The section, although modeled on equivalent New Zealand legislation (New Zealand having been theadministering power in Samoa from 1914 until self-governing independence in 1962), in fact departs from its
colonial predecessor in that it seeks to amalgamate bribery and attempts to bribe judicial officers withbribery and attempts to bribe holders of other public offices: “the holder of any office, whether judicial orotherwise, in the service of the Independent State of Samoa”. “Holder of any office in the service of the
Independent State of Samoa” is not defined by the legislation and as such should be given its ordinary andnatural meaning, which would seem clear enough and wide enough to encompass all office holders in the
public service.
Of lesser import but arguably having greater flexibility and of more significance in the field of the public
administration of law and justice is s. 38 which creates the offence of conspiracy/attempt to obstruct,prevent, pervert, or defeat the course of justice. That section provides that “everyone is liable toimprisonment for a term not exceeding three years who conspires or attempts to obstruct, prevent, pervert,
or defeat the course of justice in any cause or matter civil or criminal.”This section is derived almost word for word from its New Zealand counterpart and the decisions of the
New Zealand courts as to its interpretation, meaning and scope would no doubt be of highly persuasive value
in any Samoan court.
A glaring omission in the legislative provisions in this area is a provision specifically protecting juries (inour system known as assessors) from jury tampering and bribing or attempts to bribe or influence or
intimidate jurors whether by threats of force or otherwise, such as is found in the laws of other jurisdictions.
Also missing is a provision requiring the consent of the Attorney General to any prosecution of official
corruption under s. 35 against judicial officers, to protect the holders of such office from the danger offrivolous prosecutions instigated by disgruntled but properly unsuccessful litigants. Such a provision would* Senior Judge, Samoa District Court, Samoa.

141

RESOURCE MATERIAL SERIES No.73

customarily require the Attorney General’s consent to be given after conducting “such inquiries as he or she
thought fit.” This would ensure that only proper and serious allegations of official corruption are made thesubject of criminal charges against the appropriate party before the appropriate court. A case could well bemade for extending such protection beyond judicial officers to, for example, law enforcement personnel andministers of Government: see for example s. 106, Crimes Act 1961 (NZ).

B. Crimes Ordinance Part VIIIPart VIII provides for crimes affecting property and has provisions dealing with:•theft (s. 85 to s. 88)•
obtaining by false pretence (s. 89)•
breach of trust (s. 93)•
obtaining credit by fraud (s. 96)•
conspiracy to defraud the public or any person (s. 97)•
falsifying accounts relating to public funds (s. 98)•
false accounting by an employee (s. 99)•
false statement by public officers in relation to public revenue (s. 100)•
blackmail and extortion (s. 101)•
forgery (s. 107)•
uttering forged documents (s. 108).
Of all these corruption related offences, the most significant and the one most commonly used against
public officials and Government employees in this jurisdiction are the provisions relating to theft as aservant (s. 85 - definition of theft; s. 86(1)(g),(h) & (i) - penalty for theft; and s. 88 – extended definition oftheft), forgery under s. 107, and false accounting under s. 99. Pursuant to s. 86(1) of the Act, everyone who
commits theft within the terms of the definition of theft under s. 85 is liable to imprisonment for a term notexceeding (g) seven years if the property stolen is anything stolen by a clerk or servant which belongs to oris the possession of his employer; (h) seven years if the property stolen is anything in the possession of theoffender as a clerk or servant, or as an officer of the Government of Samoa or of any local authority or publicbody, or as a constable; (i) seven years if the theft is one within the extended definition contained in s. 88 of
this Ordinance.” Otherwise, the punishment for theft is up to five years’ imprisonment “if the value of theproperty stolen exceeds $400”; lesser terms if its value is less than $400 – s. 86(1)(a),(b),(c) and (d).
After drug offending and sexual crimes, theft as a servant is by far and large the most common type ofoffending in Samoa. It certainly is the most prevalent form of white collar crime and generally the offending
falls into one of three categories:•
theft of Government money or stores or property by employees;•
theft by employees of money or property belonging to Government corporations or otherstatutory bodies or quasi-government corporations;•
theft by employees of money or property of private corporations and organizations, primarily
lending establishments such as banks and other financial institutions.
It is a significant problem in Samoa and has effects that ripple beyond pure economic loss. Thus forexample, it can affect investor confidence in an institution or organization and in some cases, bringborderline operation institutions and organizations to their knees or even drive them beyond the point of no
return. To describe such offending as pandemic would not be an overstatement.
In comparison, prosecutions for forgery, false accounting and other offences under Part VIII of the Act areminimal, although that is not to say such offending is not prevalent. It is only to say that such prosecutions
are not as commonly brought as those for theft by servants.

III. CASE STUDIES: CRIMINAL CASES
The scope of this paper and time constraints do not permit a detailed examination of all cases fallingunder the categories referred to above. But I will cite a few examples, outlined below.

A. Police v. F.E.
This case involved prosecution of official corruption under s. 35 of the Crimes Ordinance against a Senior
Sergeant of the Criminal Investigation Branch of the Police Service and his team for accepting a substantial

142THE NINTH INTERNATIONAL TRAINING COURSE ON CORRUPTION CONTROL IN CRIMINAL JUSTICE

bribe (although I was the trial judge it was a few years ago and I cannot recall the amount) from a drug
suspect to facilitate the suspect’s release from police custody prior to trial. The Sergeant’s team was given
immunity from prosecution in exchange for testifying against their leader, who had kept most of the bribemoney. Subsequently, most if not all, of the team ‘resigned’ and gracefully exited law enforcement. The
prosecution was successful and the defendant was sentenced to three years’ imprisonment, reduced fromfour years for various mitigating factors. The suspect was never seen or heard of again and although awarrant for his arrest was issued for failure to appear at trial, it is extremely unlikely he will ever be brought
to justice. It is a good reflection on the Samoa Police Service that this is the only such prosecution against
one of their members in recent memory; I certainly know of no other in the past thirty years. It is also totheir credit that they themselves initiated the investigation and brought charges against one of their own.
They were most pleased at the outcome and quite satisfied with the sentence.

B. Police v. I.U.
This case involved prosecution against a schoolteacher under s. 35(b) of the Crimes Ordinance 1961 forattempting to bribe two judges of the Samoan courts before whom the defendant was appearing on charges
of burglary and theft (in the District Court) and unlawful sexual connection (before the Supreme Court). The
allegation is he tried to bribe each judge by enclosing SAT$1,000 in a letter to each requesting favourable
treatment in his court cases. The defendant initially pleaded guilty to all charges but after engaging legal
counsel and with leave of the court has entered not guilty pleas. Charges are awaiting hearing before me in
the District Court as both the judges involved are naturally disqualified from dealing with the matter. The
other charges facing him will probably now have to be dealt with by the Chief Justice.
C. Police v. Ale and Others
A good example of a ‘theft by servants’ case is that of Police v. Ale and others, a case involving four
employees of Telecom Samoa Limited, a quasi-government cellular telephone company, at that time
responsible for all cellular telecommunications in Samoa. The defendants were jointly charged and convictedof the theft of SAT$366,397.50 in cash, monies belonging to their employer which they had received andwhich they were obliged to credit to their employer’s account but which instead they fraudulently
misappropriated. The information was brought under the theft provisions, sections 85 & 88, of the Crimes
Ordinance. Following sentence, the tea-lady defendant, Sifaga Tagata, appealed to the Court of Appeal
against her conviction and sentence. The Court dismissed the appeal and re-affirmed her sentence.
This is unfortunately an all too common scenario in this country and even though defendants rarely
receive a sentence other than imprisonment, wrongdoers remain undeterred. There is much to be said about
the significance of social and family pressures that are brought to bear, even on well-educated but low
income earning defendants. There is a familial, perhaps even a cultural, expectation that if you are employed
you are required to contribute, even disproportionately and at whatever personal cost to yourself, to meetfamily, church and village obligations.
Attach this to a workplace with poor internal controls and ready access to money and other valuable
property and the end result is the sort of theft by servants evidenced in the instant case. This is an ongoingproblem which the imposition of deterrent sentences seems unable to cure.

D. Other Corruption Cases
Corruption type cases are not confined to the criminal justice sector. The scourge has raised its head in atleast three other areas which merit some consideration and comment.
1. Public Service Disciplinary Proceedings before the Public Service Board of Appeal
These cases involve disciplinary proceedings taken by the employing arm of government (the PublicService Commission) against its employees for misconduct or misbehaviour in the course of employment.
Sometimes it leads to criminal charges, but in many cases not, because of a lack of follow through from thedisciplinary proceedings’ stage to a criminal investigation phase. It is also not helped by the perception thatpublic disgrace and loss of employment are sufficient penalty for the wrongdoer.

(i) Penaia Penaia v. Public Service Commission
A good case study of the insidious effects of corruption in a government organization is to be found in
Penaia Penaia v. Public Service Commission, a proceeding that came before the Public Service Board of143

RESOURCE MATERIAL SERIES No.73

Appeal after the appellant Mr. Penaia was dismissed from employment in the Government Public Trust
Office for financial misconduct and financial mismanagement. At the time, the appellant was Chief
Accountant for the Public Trust Office, responsible directly to the Chief Executive Officer, the Public
Trustee. The case highlights a number of things, not the least of which is the importance of independent
audits, which is how the mismanagement and misconduct of the appellant and his respective superiors were
ultimately revealed.
The Board concluded (see page 19 of the decision) that the appellant in his capacity as Chief Accountant
saw “an opportunity to profit from the disorganized chaos that was the Public Trust Office and he readily andwithout hesitation joined his superiors in periodic raids of pillage and plunder of the office coffers...”.
Although the scope of the Board’s inquiry was limited to the charges against the appellant, clearly it foundthere existed sufficient evidence to justify the finding that both the head of the office and its chief financial
officer were engaged in systematic financial mismanagement and manipulation for personal gain. It is
fortunate for both parties the matter was not pursued further by way of criminal charges because there is noquestion there was sufficient evidence of corrupt activities being undertaken on a large scale by seniorpublic service officials. It is not uncommon that Public Service Board of Appeal proceedings result in suchactivities coming to light but it is a sad state of affairs that they are not advanced to the next level by theappropriate authorities.
2. Commissions of Inquiry
It sometimes happens that allegations of wide-spread corruption in a particular department or sector ofGovernment prompt Government to institute a Commission of Inquiry to investigate and report upon suchallegations. Such Commissions are given substantial legal powers by the Commissions of Inquiry Act 1964
including power to summons witnesses, subpoena documents, punish for contempt, etc.
This has occurred at various times since independence in 1962. The earliest the writer can recall was
one in the 1970s into what was then the Lands & Survey Department to investigate irregularities relating tointer alia the sale of certain government lands for less than true market value and the practice of fraudulent
registration of conveyances and deeds of sale within the department. Allegations there were directed not
only at the administrative head of the department but also at its political head, the Minister of Lands andSurvey. Unfortunately I have been unable to unearth a copy of the Inquiry report and cannot accurately
testify as to its conclusions other than to say the commission of inquiry mechanism proved to be a valuable
tool that led to the government instituting reforms within that department. There have been similar
outcomes with various other inquiries into government departments over the years.
A favourite target of commissions has been the Health Services Department which has been the subjectof a number of inquiries, admittedly not all involving allegations of corruption and financial abuse. In the time
available it has not proven possible to obtain copies of relevant reports but certainly the ongoing financial
irregularities within the department have prompted at least one Supreme Court judge recently while hearing
criminal charges against department employees to publicly comment about his amazement that there still
seems to have been no improvement or resolution to the financial woes of the department after 20-odd years
of inquiries and investigations into defalcations and mismanagement.
A recent case study within the writer’s knowledge from this department is that of Matatumua v. PublicService Commission, a case that again emerged as a result of an appeal from disciplinary proceedings takenby the Public Service Commission against the appellant, the charges there being that the appellant acted
improperly in separately billing cruise-ship patients that he treated in the course of his employment as a
Port Health Officer. The Board found such conduct was contrary to certain provisions of the Public Service
Act 1977 which prohibit public servants from accepting any “money, fee, gratuity or reward of any kind” forservices without the prior approval of the Public Service Commission, and prohibits them from receiving or
retaining any “fee, reward or remuneration of any kind whatsoever..... for the performance of any service forthe government”.
Again, while this matter did not proceed to criminal charges, there is a strong case for corruption in theappellant’s misuse of his position as Port Health Officer to obtain personal gain over and above his
contracted salary. And the amounts involved were not insignificant, in one instance, at issue was a bill for

144

THE NINTH INTERNATIONAL TRAINING COURSE ON CORRUPTION CONTROL IN CRIMINAL JUSTICE

NZD$18,500 which the patient had actually paid over to the cruise-vessel shipping agent. It is perhaps
fortunate the matter was, as with many others, not taken further as the appellant’s actions carried theunmistakable odour of dishonest, dishonourable and unscrupulous behaviour.
As an ancillary point in relation to commissions of inquiry generally, the above decision is also helpful in
its identification (refer to paragraphs 6.4, 6.5 and 6.6) of the importance of the composition and procedures
followed by such commissions, points applicable to all commissions of inquiry convened.
3. Electoral Corruption
A further category of corruption would be corrupt practices committed by candidates and electors at
election time. Under this heading falls bribery, whether by way of payment of money or other gifts, or by
way of promises; treating either before, during, or after an election by way of paying for, providing, or givingof food, drinks or other entertainment; and undue influence whether by threat of violence or otherwise, alldesigned to force or persuade an elector to vote or refrain from voting a particular way. Such behaviour
constitutes offences against Part IX of the Electoral Act 1963 s. 96 (bribery), s. 97 (treating) and s. 98 (undue
influence). Those who commit such corrupt practices are liable to criminal prosecution under s. 101 to s. 103of the Act and on conviction can be subject to penalties of up to 12 months’ imprisonment or a fine notexceeding $2000.
Electoral corruption is extremely common in the period preceding the general elections but the mattersusually come before the courts not by way of criminal prosecutions but out of election petitions challenging
the validity of a candidate’s election, because by virtue of s. 112 of the Act: “where a candidate who has been
elected at any election is proved at the trial of an election petition to have been guilty of any corrupt practiceat the election his election shall be void.”
There is also provision for the challenged candidate to file an answering petition against his challenger(called a cross-petition) likewise claiming the commission of corrupt practices by the challenger. With theresult that in some cases, both the challenger petitioner and the challenged respondent can be found guilty
of corrupt practices, rendering the election void and by virtue of s. 5(5)(b) of the Act, rendering both parties
disqualified from competing as candidates in the resultant by-election because s. 5(5)(b) provides that “aperson shall be disqualified for being a candidate or being elected as a Member of Parliament if he has been
convicted in Samoa of a corrupt practice.” (Such a result is quite common – a further example is Leanapapa
Laki v. Letoa Sefo Pa’u a decision arising out of the 2006 general elections.)
While these cases do not necessarily involve corrupt activities by public officials, they do illustrate thelong existing phenomenon and problem in Samoan politics of persons engaging in such activities at election
time, in some cases the corrupt activities being carried out by successfully elected ministers of theGovernment. They also highlight the difficulty in distinguishing between bona-fide gift-giving in accordancewith appropriate cultural norms and traditions and bribery and treating under the guise of same.
Despite an approximately 50% success rate in election petitions, candidates remain undeterred and it is
the usual for election petitions involving allegations of corrupt practices to surface in large numbers after
each and every general election. Thankfully for the courts, this occurs only once every five years as election
petitions are by law accorded priority over all other business of the court and can occupy a significant
amount of court time and resources.
Again the trend is that it is rare for successful bribery and treating petitions to be followed by prosecution
in the criminal courts. This is probably also due to a lack of follow through by the appropriate authorities andthe preference to speedily resolve such matters using the election petition process. There have howeverbeen some successful criminal prosecutions resulting in monetary sentences.

E. A Recent Infamous Case
It would be remiss to complete this perspective without visiting what remains a dark area of our recent
national past. Arguably the most controversial Commission of Inquiry was one that was convened in 1994 toinvestigate allegations of wholesale political corruption, abuse and malfeasance. It arose out of a report fromthe Controller and Chief Auditor of Government tabled before the Samoan Parliament in July 1994 which

145

RESOURCE MATERIAL SERIES No.73

contained serious and widespread allegations of financial irregularities and corruption, especially at apolitical level, within a number of Government Departments and in relation to certain Government
corporations, in particular, the fully owned national airline, Polynesian Airlines.
The Commission of Inquiry’s findings, which were issued in October 1994, were the subject of a court
challenge by the Controller and Chief Auditor and the full background and findings are referred to in theearly part of the Court of Appeal decision on the matter.
In the time-frame given to produce this paper, I have been unable to locate a copy of the Audit or theCommission of Inquiry report but the Commission of Inquiry findings, in particular paragraph 6 thereof(refer to page nine of the decision), suggests some form of corrupt activities were proven to be existent in a
number of Government Departments and agencies. It is however to be noted that paragraph 7 highlights
these were not as widespread as alleged by the Controller and Chief Auditor and recommends the taking ofappropriate measures “aimed at discouraging misconduct while developing public confidence in theinstitutions of central Government.” Some of these measures are specified in paragraphs 9 to 12 by theCommission itself and as noted on page 12 by the Court of Appeal: “On 11 January 1995 Cabinet resolved todirect all Government Departments and all public servants involved for the immediate effective
implementation of recommendations in the report of the Commission as well as in the report of the Chief
Auditor. Ten specific directions were set out. Follow-up action was contemplated. To that degree the Chief
Auditor has been vindicated. In combination his report and the Commission’s report have evidently had asalutary impact.”
On a more disturbing note is what is contained further down on page 12 reciting the fate of the Chief
Auditor who authored the 1994 report to Parliament. Subsequently his services were terminated by
the Government and proceedings for his unlawful dismissal remain pending before the Samoan courts.
The Government went further and amended the Constitution placing the appointment of a Controller andChief Auditor on a fixed term contractual basis (three years) holding office at the pleasure of Cabinet as
opposed to Parliament as was previously the case. A constitutional challenge on the validity of thatamendment by the former Auditor is, as far as I am aware, still also pending. The prophetic words of the
Court of Appeal (page 13) have come to pass: “unless an amicable settlement is reached – which is surely
much to be desired in the public interest – litigation and bitterness may be long drawn out.”
The final act of the 1994 Chief Auditor’s report was played out in 1999 when Leafa Vitale, one of theGovernment ministers alleged in the report to have been guilty of corruption, was charged together with aCabinet colleague with the murder of another Cabinet minister who was allegedly thwarting their schemes
and threatening to reveal their corrupt activities. The executioner was the son of Mr. Vitale and all wereconvicted and are presently serving life sentences for murder. The assassination sent shock waves throughthe Samoan and indeed the Pacific community and it is a widely held belief that the killing was part
retribution and partly an effort to remove an obstacle to the defendants’ illegal and corrupt activities. Typicalnews reports on the matter seem to indicate corruption, at least at that time, was very much alive and well,albeit deeply buried, in this island paradise.
The current thinking is that the 1999 assassination marked a highpoint (or low point, depending on yourperspective) in an era dogged by allegations of abuse and corruption and that the present HRPP
Government administration under the stewardship of Prime Minister Tuilaepa Sailele has done much by way
of institutional and other reforms to remove the stigma from Samoan institutions and society, thereby
restoring a large measure of public confidence. But more still can be and remains to be done. One of the aims
in participating in courses such as the present one would be to gain a better understanding of the subject andpointers towards reforms and improvements to systems that can yet be made.

IV. CONCLUSION
There is a clear need for a few fundamentals that can serve to better equip the national legal system andits courts to deal with problems of official corruption:
1.
2.

146

Legislative reform to update criminal legislation passed 45 years ago;
Such reform should include measures to fill the gaps of the current legislation;

THE NINTH INTERNATIONAL TRAINING COURSE ON CORRUPTION CONTROL IN CRIMINAL JUSTICE

3.
4.
5.
6.
7.
8.
9.

Better procedures for detection and prosecution especially among law enforcement bodies andagencies;
Greater recognition of the seriousness of such offending and the need to prosecute wrongdoers to
the limit prescribed by law;
Taking of preventive initiatives such as training, educational and other programmes aimed at
discouraging employee offending at all levels;
Encouraging dialogue between nations as no doubt such offending is not unique to any particularjurisdiction – the forms may vary but the essentials remain the same;
Facilitate international co-operation in transnational cases;
Introduce codes of employee conduct for the public and private sector and promote stricter internal
disciplinary measures and controls;
Review and monitor rules of evidence and practice to effectively deal with any peculiarities unique to
official corruption offences and offending.

147