Chapter 4. Mat, kava, faol, pig, buluk, woman: the operation of the kastom system in Vanuatu today

Table of Contents

The pervasiveness of the kastom system
Diversity in conflict management
The people in charge of the management of the conflict
Before the meeting
At the meeting
After the meeting
The restorative nature of the kastom system
Privileging the community over individuals
Kastom procedures and kastom law
The dynamism of the kastom system
Challenges for the kastom system today
Too many chiefs
Respek hemi lus’ (Respect has been lost)
Chiefly misbehaviour
Lack of disciplinary mechanisms
Chiefs and modern society
Widespread support for the continuation of the kastom system
Women and the kastom system
Youth and the kastom system
Conclusion

This chapter explores the current operation of the kastom system through the analysis of a number of initial hypotheses in light of later research.[1] Due to space constraints, it is not possible to provide a full ethnographic account of the whole kastom system throughout Vanuatu. Consequently, this chapter focuses on its most salient aspects, especially those that affect its relationship with the state system. It also draws out some of its main principles and fundamental concepts (what Chiba would call the legal postulates of the system),[2] including those of respect, reciprocity, shame, balance and the importance of the community. The discussion is based primarily on fieldwork conducted between 2003 and 2006, and also some of the ethnographic works discussed in Chapter 3 as well as a report commissioned by the Ministry of Internal Affairs[3] as a preliminary step in drafting Chiefs Legislation (a project discussed in Chapter 5).

As a preliminary matter, however, I would like to discuss my use of the terms ‘kastom system’ and ‘conflict management’. The choice of terminology for the non-state system of conflict management in Vanuatu is problematic because there is no one term that ni-Vanuatu use to refer to it. Some refer to ‘sitting down in the nakamal or nasara’ (the place where dispute management is often carried out),[4] some to ‘straightening’ a conflict ‘at the level of kastom’ or ‘in kastom’, some to ‘giving’ the conflict ‘to the chiefs’ and others use a handful of other descriptive phrases. The essential features of the system as shown by these phrases are that the system is indigenous and administered by non-state leaders (chiefs) in their own places of authority. In this study, the term ‘kastom system’ is used, the word ‘kastom’ meaning generally ‘our way of doing things’,[5] thus capturing the most significant feature of the system. Support for this terminology also comes from Hess, who observes that ‘[t]oday the notion of kastom is actively used to stress the participatory “found” public consensus that distinguishes it from adversarial Western legal systems, which entail decisions for someone and therefore also against someone’.[6]

It is recognised that there are some who would argue that the kastom system should not be called a ‘system’ at all. First, it could be said that Vanuatu is so diverse that there are many different indigenous legal systems—as many as there are functioning subgroups, to use Pospisil’s argument—rather than just one.[7] While this is certainly true, and the substantive laws and procedures used vary significantly throughout the country, there are common threads that unify them: the emphasis on peace and harmony in the community, on restoring relationships, on the use of chiefs to facilitate agreement, on community involvement in the processes and on the achievement of settlement by the payment of compensation. So just as the study of the ‘civil law system’ and the ‘common law system’[8] is legitimate despite the fact that they include within them many different legal systems and subsystems, so too is the study of the kastom system despite the variation in its operation throughout Vanuatu.[9]

It might also be argued that the use of the term ‘system’ is misleading because it implies a coherence and structure that the kastom system does not have, being more a collection of subsystems than one with a clear national or even provincial structure, although this is gradually changing as new reforms are effected.[10] To attempt to overcome such problems, some scholars have used other terms—for example, Griffiths[11] prefers to speak of ‘orders’ rather than systems to avoid assumptions of systematic bodies of law, while Woodman instead speaks of ‘legal fields’.[12] There are, however, two reasons why the term ‘system’ is used in this study. First, all legal systems suffer from these criticisms to an extent, as Keebet von Benda-Beckmann argues:

Law is not an amorphous set of norms and principles but neither is it a tightly structured system. This is not even the case for western legal systems, despite the efforts of centuries of legal scholarship. Law typically consists of clustered sets of norms, principles, concepts and procedures.[13]

Therefore, as the use of the term system is retained for the State, and the differences in coherence are ones only of degree, it is legitimate to use it for the kastom system as well for epistemological coequivalence. Second, and more importantly, the term system carries with it the concept of interconnectedness, which is important in identifying the fact that although these subsystems operate within a particular social setting, they increasingly have relations with each other, and that these relationships are significant.[14] Thus, in this study, the term system is used to refer to the state and the kastom processes, while disclaiming any pretensions to coherence that the term suggests. Seymour-Smith supports this approach, arguing that the key to the productive use of the term system in anthropology is ‘the recognition that such systems do not exist in reality but are analytical devices which we may impose in order to investigate our data more fruitfully’.[15]

A final justification is that the kastom system is conceived of as such by many involved in its administration. For example, the Secretary of the Malvatumauri, in the context of a protest about prison conditions,[16] recently stated:

We made a ceremony and then the Chiefs handed the prisoners over to the other system of governance, that’s the police again. So, it was really from one system to the other and making sure that both systems, protocols, procedures, are observed in the whole process. Yesterday, we believe that we observed the two procedures for the two systems and we feel that we are quite satisfied with what we’ve done yesterday[17] [my emphasis].

The term ‘conflict management’ is used in preference to others such as ‘dispute resolution’. It is broad enough to include processes that go beyond dealing merely with particular disputes, thus allowing a study ‘of the relationship of rule orders to behaviour’.[18] It also encompasses processes that manage conflicts, rather than necessarily reaching fixed and permanent settlements. These broader parameters are necessary when discussing the kastom system, as often what occurs is a continuing exercise in managing the various consequences of a particular conflict or conflicts. For example, if a violent dispute breaks out between two villages there might need to be a move by the chief from one village to send a payment, such as a pig, first of all to the other chief in order to ease the tension. Then, some days later, a meeting might be held at which temporary agreement is reached and a kastom settlement is made, but the conflict might still be one that exists until some new circumstances give it reason to fire up again, thus it cannot be considered to have been resolved.

The pervasiveness of the kastom system

The kastom system, in one form or another, exists in every village and town in Vanuatu. It is indisputably the way in which the majority of conflicts in every rural and urban community in the country are managed, and even cases managed by the state system often have some level of involvement with the kastom system.[19]

The central idea of the kastom system is that the chief or chiefs of a community are responsible for managing conflicts. They do so through holding a public meeting with the parties involved where the conflict is extensively discussed, responsibility allocated and amends made through the making of a kastom payment by one or both of the parties. Around this ‘stampa’ (base) there is great variation in the form the kastom system can take.

The kastom system in almost every island is divided into different levels, although the number of these levels and the formality of the divisions between them de facto and de jure vary from island to island. Generally, the first level (after attempts to resolve a conflict at a family level have been unsuccessful) is the village chief or chiefs. Next, some communities have a ‘ward’ council made up of chiefs from several villages, then there is often an area council comprising representatives of the various ward councils in a particular area, and then sometimes an island-level (often including offshore islands)[20] or a provincial-level chiefly council as the penultimate level. The Malvatumauri is at the top of this structure, representing chiefs at a national level. Although there have been chiefly councils in Vanuatu for decades now, some provincial governments[21] and the Malvatumauri have recently been instrumental in formalising and mobilising the different levels of chiefly councils as part of their efforts to promote greater engagement of the chiefs in governance and conflict management.[22]

In the two towns of Port Vila and Luganville, the organisation of the kastom system is slightly different due to the many different island communities who live there. Each community has its own chief or chiefly representative[23] in town and many have chiefly town councils, depending on the size of the particular community.[24] As the organisation of these representatives is often ad hoc, some people are criticised for being ‘self-styled’ chiefs and their right to exercise authority is questioned. Generally, when a conflict involves people from different communities the different chiefly councils will sit to hear the conflicts together.[25] The chief of the South West Bay Malekula community in Vila gave the following example:

A young man from our area had decided to leave his wife who was from Ambae. We had to call the chiefs from Ambae and Malekula to sit together to sort that out. Both chiefs chaired the meeting. After the meeting to finalise the judgment, we have what we call a native court, where chiefs go to finalise the penalties, chiefs sit together to discuss the penalty. They then call the meeting back and say this is our decision—it is always a two or three man decision when judging something serious.

In the two towns there are also town councils of chiefs with chiefly representatives from the different communities living in the towns that are not from Efate or Santo. Similar bodies have also been established in some of the bigger villages in the islands where there are diverse communities living together.[26] In some urban areas, there are also ‘suburban’ councils of chiefs, such as the Freswota Council of Chiefs, comprising chiefs from that community.

All these different levels of councils and, at the village level, individual chiefs are responsible for managing conflicts that members of their community are involved in. The sorts of matters that they deal with vary depending on a number of factors, including the chiefs’ own assessment of their jurisdictional capabilities and power, community support for the kastom system, the wishes of the conflicting parties and the accessibility of the state system. In some places therefore the kastom system is used just to resolve minor cases, whereas in other places it deals with cases as serious as murder. The issue of which system should hear which case is currently a major problem, as is discussed in Chapter 6.[27]




[1] The chapter subtitle is the order of kastom payments that is used by some chiefs and chiefly councils.

[2] Chiba (Asian Indigenous Law, p. 7) describes these as ‘a value principle or value system specifically connected with a particular official or unofficial law, which acts to found, justify and orient the latter’. See also Shah, Legal Pluralism in Conflict, pp. 2–7.

[3] Garu, Selwyn and Yaken, Jack 2001, Chiefs’ Legislation Project Report, Ministry of Internal Affairs.

[4] The word ‘nakamal’ in Vanuatu is used to refer either to a cleared area near the chief’s house or near the central banyan tree in a village, which is used as a meeting place, or else to the meeting house itself. In Efate and the Shepherds, the term ‘nasara’ is often used rather than nakamal, but it has the same meaning.

[5] For example, kastom medicine refers to traditional approaches to healing and kastom dress refers to the types of clothing that were worn before the arrival of the Europeans. I have not referred to kastom law, as might seem consistent with these other two examples, first because it would be unnecessary as this is provided by the context of the study (for the same reason I refer to the state system rather than the state system of criminal justice), and second because for ni-Vanuatu the legal system is not something apart and separate from other aspects of life. As Narokobi says, ‘[L]aw is not quantifiable as an autonomous institution, but is an aspect of the total way of life of the people.’ Narokobi, Bernard 1989, Lo Blong Yumi Yet, p. 3.

[6] Hess, Person and place on Vanua Lava, Vanuatu, p. 196.

[7] Pospisil, Leopold 1974, Anthropology of Law: A comparative theory, p. 98.

[8] Indeed, in my position as a lecturer at the University of the South Pacific, I teach ‘the common law criminal justice system’ to students from 12 different jurisdictions.

[9] Franz and Keebet von Benda-Beckmann (‘The dynamics of change and continuity in plural legal orders’, p. 18) also comment that ‘there may be system-internal pluralism in the sense that the same legal system may contain duplicatory regulations of the same set of activities or domains’.

[10] For example, the National Council of Chiefs Act (2006) establishes a uniform system of island councils of chiefs and urban councils of chiefs throughout Vanuatu. This act is discussed in greater detail in Chapter 5.

[11] Griffiths, ‘What is legal pluralism?’, p. 36.

[12] Woodman, ‘Ideological combat and social observation’, p. 54.

[13] von Benda-Beckmann, Keebet 2002, ‘The contexts of law’, Legal Pluralism and Unofficial Law in Social, Economic and Political Development: Papers of the XIIIth International Congress of the Commission on Folk Law and Legal Pluralism, 7–10 April, 2002, Chiangmai, Thailand, p. 299. See also von Benda-Beckmann and von Benda-Beckmann, ‘The dynamics of change and continuity in plural legal orders’, p. 18. Woodman (in Allott and Woodman, People’s Law and State Law, p. 18) also argues that state laws are ‘neither internally self-consistent logical systems nor clearly bounded from other normative orders’.

[14] Keebet von Benda-Beckmann, ‘The contexts of law’.

[15] Seymour-Smith, Charlotte 1986, The Macmillan Dictionary of Anthropology, p. 275.

[16] Discussed in further detail in Chapter 5 under ‘The relationship between the prisons and the kastom system’.

[17] ‘Vanuatu: chiefs step in to end jail-break impasse’, Pacific Beat, 10 May 2006, <http://abc.gov.au/ra/pacbeat/stories/s1635039.htm>

[18] Chanock, Martin 2000, ‘Introduction’, in Sally Moore (ed.), Law as Process, p. xviii.

[19] It is not possible to quantify the exact percentage of cases dealt with by each system due to the lack of accurate record keeping in the kastom system. Anecdotal accounts suggest that the percentage dealt with by both systems varies throughout the country depending on the accessibility of the state system, but 80–90 per cent of cases dealt with by the kastom system was the most common estimate by key actors from both systems.

[20] For example, the Efate Island Council of Chiefs, the Vaturisu, includes chiefs from the offshore islands of Nguna, Pele, Lelepa, Moso and Emau.

[21] For example, in Penama, the different levels of councils have been called the ‘Penama system’ by the province. When chiefs were asked about whether this was a new system or just a new name, however, they were vague in their responses, just suggesting that the general idea had been there before. Although such initiatives are often welcomed by the chiefs and communities involved, they can also cause problems as, for example, occurred in Ambae when the Penama system effectively cut across the authority of the locally developed Lakalakabulu Council of North Ambae.

[22] For example, the National Council of Chiefs Act 2006, which establishes a structure of chiefly councils headed by the Malvatumauri. This act is discussed in greater detail in Chapter 5.

[23] Who may or may not be a chief in his or her own right, but is often a more minor chief than the ‘real’ authority on the island.

[24] For example, there is a town council of chiefs from East Ambae in Vila and also one for South-West Bay, Malekula, as well as many others.

[25] The only council that I came across that did not do this was the Lakalakabulu Council of North Ambae, which insisted that only its members act as decision makers.

[26] For example, in Dillons Bay, Erromango, the Dillons Bay Council of Chiefs comprises chiefs from different communities.

[27] See Chapter 6 under ‘Dispute and confusion over jurisdiction’.