UNDERTAKINGS CONCERNING CURRENT LEGAL PROCEEDINGS
BETWEEN
Faatuatua I Le Atua Samoa Ua Tasi (F.A.S.T.) Incorporated, a duly incorporated political party of the one part known as ‘FAST’, as represented by its leader the Hon Fiame Naomi Mataafa (“leader of FAST”)
AND
Human Rights Protection Party Incorporated, a duly incorporated political party of the other part known as ‘HRPP’, as represented by its leader the Hon Tuilaepa Dr. Sailele Malielegaoi (“leader of HRPP”) together known as ‘the parties’
WHEREAS this undertaking records the decisions and commitments of the parties, who wish to:
1. Ensure and secure political and social stability within the Independent State of Samoa Samoa’ for the benefit of all its people and residents;
2. Promote peace and harmony for the public of Samoa, which is the prevailing public interest in light of the months of uncertainty and disruption to the conduct of governance after the general elections in April 2021;
3. Consider the current challenges Samoa is facing in terms of the global pandemic brought upon by Covid-19 and the effect on the environment caused by climate change, all of which Samoa needs to face as a nation united under God;
4. Recognise that Samoa is a small country with limited resources and therefore particularly vulnerable during times of economic, poltical and social instability and that Samoa has a unique culture where everyone is connected one way or another either through family ties or matai titles; and
5. Avoid unnecessary public disagreement, disharmony amongst families and matai connections, controversy, distraction and expense: and to that end, have each decided to:
A. Use their best endeavours to seek and support the discontinuance of the proceedings below, as respectively brought and/or defended by the parties and others; and
B. In particular, to prevail upon all others involved in those proceedings, whether members of their respective political parties or not, to consider the overarching public interest vouchsafed by the leaders of the parties to this agreement, in maintaining peace and stability in this land, and to seek to bring to an end all court proceedings as well as all formal complaints to the Police between them and filed one against the other by their respective members and supporters;
AND WHEREAS the two leaders in particular have recalled the difficult year which the country has experienced, and thus have greatly reflected upon the critical need to restore public confidence in all the democratic institutions upon which our government and society are founded, yet also implicit in this process is the pressing need to restore and acknowledge the traditional honor and dignity belonging to all those who lead the country, from the heart of each family, to the villages, districts and islands, and in doing so seek to respect to the overarching spiritual leadership of the various denominations of our Christian churches for the glory of God;
AND WHEREAS the parties have decided to seek to resolve their Court proceedings in the following manner and according to the following undertakings:
Private Prosecutions under the Electoral Act against FAST Members of Parliament in the District Court
The HRRP has decided to seek and make all best endeavors to discontinue all private prosecutions filed against the Leader of the FAST Party, and Members of Parliament registered under the FAST Party under provisions of the Electoral Act, who shall take every possible action to:
a. Ensure that every such private prosecution is withdrawn by the Informant in the public interest, and in the event of encountering any difficulty in withdrawing the charges, to offer no evidence in respect of such charges;
b. Invite the Informant to instruct his solicitors to immediately withdraw the prosecutions and apply to the District Court to have the criminal charges dismissed;
C. Bear any costs relating to the private prosecutions by HRPP and not seek costs from the defendants to those prosecutions or the FAST party;
d. Take no further action of any nature in respect of such private prosecutions or the allegations underlying those prosecutions in any other proceeding or in any other court or other tribunal.
1. 1 The defendants shall also bear their own costs and not seek costs from the prosecution or the HRPP Party.
Contempt proceedings against Tuilaepa Dr. Sailele Malielegaoi; Leaupepe Toleafoa Faafisi; Lealailepule Rimoni Aiafi; Maiava Visekota Peteru; Lauofo Fonotoe Nuafesili Pierre Lauofo; Taulealeausumai Sioeli Alofaifo in Misc 142/21 in the Supreme Court
2. FAST has decided to seek and make all best endeavors to discontinue the contempt proceedings filed in respect of the six listed respondents (as listed above) above without any further step or costs to any party,
3. To that end:
a. The parties agree that they will seek discontinuance of the contempt proceedings as between themselves on that basis;
b. The Leader of FAST will through counsel, invite each other respondent to the contempt proceedings to withdraw on that basis;
c. The Leader of HRPP shall take every possible action to encourage and ensure the prompt consideration, approval and signature of each and every named Respondent of the Memorandum of Consent and shall ensure its prompt return to FAST solicitors, and further shall indemnify all FAST members from any further claim or proceedings of any nature brought in respect of the matters forming the basis for the Contempt proceedings;
d. In particular, the two Leaders believe that it is preferable in the interests of the people of Samoa to resolve these contentious issues amicably and through their common commitments and, for that reason and acknowledging the concerns for the public interest and the standing of the courts of Samoa raised by the Court in this proceeding, shall make a joint public statement consistent with those interests and as required by the Court.;
e. Consequent on that agreement, the Leader of FAST will instruct the barristers and solicitors acting for the FAST party (as well as herself) in these proceedings to file a Notice of Discontinuance in respect of Misc 142/21 in respect of all the respondents who sign a Memorandum of Consent to the application for discontinuance, which shall include a provision that each party will bear its own costs, and will not seek costs from the Applicants;
f. The draft Memorandum of Consent shall be provided to each of the Six Respondents for their consideration and review, and if acceptable for their signature within 7 days of receipt and shall then be filed by the FAST solicitors.
All other Private Prosecutions and Police Complaints against FAST Members of Parliament
The HRRP has decided to seek and make all best endeavors (in addition to Clause 1. above), to discontinue any and all private prosecutions and withdraw all Police complaints filed before or by the date of this Deed against the Leader of the FAST Party, or any Members of Parliament registered under the FAST Party under any provisions, including but not limited to complaints filed with Police against the following FAST members:
(i) Leatinu’u Wayne So’oialo for alleged witness tampering arising from the conduct of the private prosecution against him;
in Fuiono Tenina Crichton for alleged threatening words uttered;
(iii) Fiame Naomi Mata’afa for alleged defamatory remarks against Tuilaepa Dr. Sailele Malielegaoi, provided that
(a) Fiame publishes a statement in English withdrawing her earlier allegation that Tuilaepa did not meet or attempt to meet with the judiciary to influence their decisions after the General Elections; and
(b) Tuilaepa publishes a statement in English withdrawing his earlier allegation that Fiame did not meet or attempt to meet with the Chief Justice and the judiciary at Return to Paradise Resort in the midst of the Election legal crisis. and shall take every possible action to:
a. Ensure that each and every such private prosecution is withdrawn by the Informant in the public interest;
b. Invite each Informant to instruct his solicitors to immediately withdraw the prosecutions and apply to the District Court to have the criminal charges dismissed, and in the event of encountering any difficulty in withdrawing the charges, to offer no evidence in respect such charges;
C. Invite each Complainant who has made a complaint to the Police alleging illegal conduct by or on behalf of members of the FAST party: be they members of Parliaments or members of the party or supporters of such, to instruct their solicitors to immediately withdraw their complaints and allegations, and advise that they seek to discontinue and end any further action to be taken on their complaint;
d. Bear any costs relating to the private prosecutions by HRPP and not seek costs from the defendants to those prosecutions or the FAST party;
e. Take no further action of any nature in respect of such private prosecutions or the allegations underlying those prosecutions in any other proceeding or in any other court or other tribunal.
f. Indemnify and hold safe all FAST members from any further claim or proceedings of any nature brought in respect of the matters forming the basis of the private prosecutions or Police Complaints.
Private Prosecutions and Police Complaints against HRPP Members of Parliament
The FAST has decided to seek and make all best endeavors to discontinue any and all private prosecutions and withdraw all Police complaints filed before or by the date of this Deed against all Members of Parliament registered under the HRPP Party under any provisions, including but not limited to complaints filed with Police against the following HRPP members:
(i) Lauofo Fonotoe Pierre Lauofo for alleged witness tampering arising from the conduct of the election petition against him;
and shall take every possible action to:
a. Ensure that each and every such private prosecution is withdrawn by the Informant in the public interest;
b. Invite each Informant to instruct his/her solicitors to immediately withdraw the prosecutions and apply to the District Court to have the criminal charges dismissed, and in the event of encountering any difficulty in withdrawing the charges, to offer no evidence in respect of such charges;
c. Invite each Complainant who has made a complaint to the Police alleging illegal conduct by or on behalf of members of the HRPP party: be they Members of Parliaments or members of the party or supporters of such, to instruct their solicitors to immediately withdraw their complaints and allegations, and advise that they seek to discontinue and end any further action to be taken on their complaint;
d. Bear any costs relating to the private prosecutions by FAST and not seek costs from the defendants to those prosecutions or the HRPP party;
e. Take no further action of any nature in respect of such private prosecutions or the allegations underlying those prosecutions in any other proceeding or in any other court or other tribunal;
f. Indemnify and hold safe all HRPP members from any further claim or proceedings of any nature brought in respect of the allegations forming the basis of the private prosecutions or Police complaints.
Election Petitions and counter-petitions arising out of By-Elections of 26 November 2021
Both Parties have decided to seek and make all best endeavors to discontinue and withdraw all election petitions and counter-petitions filed by each member of each Party against Members of Parliament of both parties as a result of the by-elections of 26 November 2021 and shall take every possible action to:
a. Ensure that each and every such petition and counter-petition is withdrawn by the petitioner and respondent respectively, in the public interest and in the promotion of peace;
b. Invite each petitioner to instruct his/her solicitors to immediately withdraw the petitions and apply to Supreme Court to have the petition withdrawn and dismissed on the grounds of settlement between the petitioner and the respondent;
c. Invite each respondent to instruct his/her solicitors to immediately withdraw the counter-petition and apply to the Supreme Court to have the counter petition withdrawn and dismissed on the grounds of settlement between the petitioner and respondent;
d. Bear their own costs relating to the petitions and the counter-petitions and not seek costs from each other;
e. Take no further action of any nature in respect of such election petitions and counter-petitions or the allegations underlying those petitions in any other proceeding or in any other court or other tribunal;
f. Indemnify and hold safe each Parties members from any further claim or proceedings of any nature brought in respect of the allegations forming the basis of the election petitions and counter-petitions.
7. This undertaking is intended to, and considered by the parties, as a means to provide a peaceful and reasoned resolution of the political differences which are currently before the Courts and the prolonged continuation of all these criminal and civil proceedings are not considered to be in the public interest, and if allowed to continue may seriously undermine the peace, stability and good order of the nation.
This undertaking is signed and executed by the Honorable Fiame Naomi Mata’afa, as Leader of the FAST party, and the Honorable Tuilaepa Dr. Sailele Malielegaoi as Leader of the HRPP party, as well as representing and/or on the basis of their association with the respective Informants and Complainants in the private prosecutions, election petitions and police complaints, as well as the Six Respondents in the Contempt proceedings, and both leaders undertake to represent the interests of their political parties in this agreement, but also and in particular shall have regard to the prevailing and overarching interests of the public and people of this country, in contemplating and seeking to conclude the undertakings in this Agreement.
SIGNED AND EXECUTED BY THE HONORABLE FIAME NAOMI MATA’AFA:
SIGNED AND EXECUTED BY THE HONORABLE TUILAEPA DR. SAILELE MALIELEGAOI:
WITNESSED BY:
Murtel Lui.”
Barrister & Solicitor
Apia, SAMOA
DATE: 3/2/22
Ming-C. LEUNG.WAI
Barrister & Solicitor
Apia, SAMOA
DATE: 3/2/22