This Press Release serves to provide the general public with information and clarification in relation to public statements and queries about the Constitution Amendment Act 2020, Land and Titles Act 2020 and the Judicature Act 2020 (“3 Acts”).
1. The Government is aware of concerns and in some cases, misinformation that 3 Acts will affect rights to and ownership of customary land in Samoa. The Government wishes to reiterate and reassure the people of Samoa that the 3 Acts do not, in any way, affect ownership of and rights to customary land.
The 3 Acts will not result in the alienation of customary land to foreigners nor do the 3 Acts refer to the Land Titles Registration Act 2008 (“LTRA” 2008”).
To be clear, the 3 Acts have nothing to do with the LTRA 2008. Customary land has always been, and will continue to be protected under the Constitution of the Independent State of Samoa (“Constitution”).
HOW IS CUSTOMARY LAND PROTECTED UNDER THE CONSTITUTION?
2. Article 102 of the Constitution, clearly protects customary land from being alienated.
3. Article 102 makes it unlawful to make any alienation or disposition of customary land or interest in customary land. This means that customary land, or any interest in customary land, cannot be sold or mortgaged, nor can it be taken for the payment of debts.
4. The only limited exceptions, as provided for in the proviso of Article 102 is where an Act of Parliament:
a) authorises the granting of a lease or license of any customary land or of any interest therein;1 or
b) authorises the taking of any customary land or any interest therein for public purposes.2
1 Leasing and Licensing of Customary Land Act 1965. 2 Taking of Land Act 1964.
FURTHER CONSTITUTIONAL SAFEGUARD
6. The proviso in Article 109(1) prohibits any amendment to Article 102, unless the proposed amendment has been:
a) subject to a plebiscite or a poll of electors on the rolls of electoral constituencies; and
b) the proposed amendment has been supported by at least two thirds of the valid votes cast in that plebiscite or poll of electors.
7. Thus, Article 109 provides a further constitutional safeguard of our customary land.
WHY THE 3 ACTS DO NOT AFFECT CUSTOMARY LAND?
8. The 3 Acts do not in any way intend to amend, repeal or add to Article 102 of the Constitution. There are no provisions in any of the three 3 Acts which seek to do this.
9. Further, there is no reference to Article 102 of the Constitution in any of the 3 Acts.
10. Article 102 of the Constitution remains untouched and customary land in Samoa is not
affected and continues to be protected.
11. Moreover, there is no need for the Constitution Amendment Act 2020 to be subject to a poll of electors as provided for under Article 109, as it does not seek to amend, repeal or add to Article 102 as it currently stands.
WILL CUSTOMARY LAND CONTINUE TO BE PROTECTED UNDER THE 3 ACTS?
12. Yes. There is absolutely nothing in the 3 Acts that amends Article 102 nor does it provide for the alienation of customary land.
13. Customary land in Samoa continues to remain protected under Article 102 and Article 109 of the Constitution.
