The dynamism of the kastom system

There are two main findings from the fieldwork that support the hypothesis that the kastom system is dynamic: the conscious adaptations made to the kastom system by the chiefs, and the widespread open-mindedness of the chiefs and their willingness to embrace new ideas. This attitude was summed up by a statement made by a former President of Vanuatu when he said, ‘[E]vri samting i gat evolution blong hem. Mi belivim se kastom i gat evolution’ (everything evolves. I believe that kastom evolves too).[121]

The development of the kastom system in the past few decades is apparent from a comparison of the anthropological material discussed in Chapter 3 with the system described above. Some changes are due to conscious attempts by the chiefs and chiefly organisations to deal with the challenges that continue to confront them, and others are unconscious changes as a result of influence from the state system. One of the most obvious conscious changes is the introduction or formalisation of the levels of chiefly councils[122] and the process of appeal. Although the word ‘apil’ is used often,[123] what occurs is more like a rehearing or a renegotiation at a higher level than a strict review of the decision of the chief at the lower level. For this reason, some chiefs prefer the word ‘referral’,[124] as this more accurately describes what happens. For example, in Nguna, a small island in the north of Efate, a conflict will first be dealt with at village level. If the paramount chief of his village cannot solve it, he will ask the paramount chiefs of some neighbouring villages to come to help. If there is still no resolution, it will go to the body for the whole of Nguna, the Turuduaki Council of Chiefs, then it can be appealed to the Council for Nguna and Pele (the adjoining island) and, if still a problem, it will go to the Efate Island Council of Chiefs.[125] Although traditionally there was almost certainly the possibility of bringing a third body into the management of a conflict community leaders were having difficulties resolving, this formal referral structure is a relatively recent innovation of the kastom system. There is some criticism of the process of appeals[126] as they are seen to prolong a conflict and to make final reconciliation difficult: as one respondent put it, with appeals, chiefs ‘no save flatem kwik taem’ (cannot quickly finish the conflict).

Another conscious change is the writing down of kastom laws. The movement to start to draft what are universally referred to as ‘by-laws’ appears to have been started by the Malvatumauri, who drafted their by-laws shortly after independence.[127] Almost every place visited in the course of this research had either written their by-laws, was doing so or was considering doing so. The reasons given for doing so were mixed and included the following:

The same reasons for drafting by-laws probably prompted the development of the keeping of records of kastom meetings and the creation of positions of secretaries that is increasingly occurring in chiefly councils. In the kastom kot observation study, I was astonished that in 58 per cent of cases there was someone who took minutes of the meeting. It is, however, important to consider the extent to which these innovations really work in practice. Thus when I asked whether or not the by-laws were really used in judging cases, the answers were very vague and chiefs often generally indicated that there was a copy ‘somewhere’. A similar response was given when I asked to see the records of the minutes taken in the meetings, with many chiefs admitting with a laugh that they were ‘olbaot nomo’ (all over the place). There are many other examples of conscious adaptation from the state system, including: the creation of village police,[130] the introduction of the concept of payment of fees to get chiefs to hear cases[131] and even the development by some chiefly councils of summons forms and letterheads.[132]

The other aspect of the dynamism of the kastom system is the open-mindedness and flexibility of approach displayed by the majority of chiefs interviewed for this study. Many others, including the leaders of the two major women’s organisations in Vanuatu, also remarked on this feature. It is illustrated by one of the by-laws from a ward council in Penama Province, which, roughly translated, states:

The Council does not agree that women should wear shorts but we understand that they have the right to so she can wear shorts so long as they come down to her knees and she does not wear them in front of her brother or some other relatives or else she will be fined.

During the fieldwork, chiefs continually told me that they wanted to have training and assistance to enable them to ‘leftemap’ (lift up) their system.

[121] Maxime Korman, former Prime Minister of the Republic of Vanuatu (Author’s notes from the Conference on Kastom and the Constitution, University of the South Pacific, Emalus Campus, Port Vila, Vanuatu, 4 October 2004).

[122] The latest move in this direction is the National Council of Chiefs Act 2006, discussed in Chapter 5.

[123] People also often say that the conflict ‘mas ko long nekis level’ (must go to the next level) or else ‘tekem nekis step’ (take the next step).

[124] A group of chiefs (Author’s notes from the Vanuatu Judiciary Conference, University of the South Pacific, Emalus Campus, Port Vila, Vanuatu, 26 August 2006).

[125] Interview with a chief from Nguna (Nguna, 31 October 2003).

[126] See in particular the comments about the appeal structure for the Customary Land Tribunals in Simo, Joel 2005, Report of the National Review of the Customary Land Tribunal Program in Vanuatu, Vanuatu Cultural Centre, p. v.

[127] See Malvatumauri, ‘Kastom polisi blong Malvatumauri’. The impetus behind making by-laws also comes from the provincial governments, as they are given power under the Decentralisation Act (Cap 127) to make regional laws, which also includes criminal offences. Provincial administrators in Penama and Torba Provinces mentioned that they were involved in collecting chiefly by-laws.

[128] Interview with a chief from Nguna (Nguna, 31 October 2003). See also Larcom (‘Custom by decree’), who discusses the power of the written word in local communities in Malekula.

[129] For example, in Mota Lava, they have included penalties for killing someone. They said this was because the last time someone was killed the police came and took the suspect and he was tried and all he was given was a suspended sentence. The family of the victim waited and waited for the man to pay ‘sak’ (compensation for the ‘head’ of the person who was killed) but it never came. They therefore want to be prepared to deal with these cases in future. They said they had the right to deal with these cases because Father Walter Lini had told them chiefs should deal with cases of murder rather than sending them to the police (Interview with a chief from Mota Lava, Mota Lava, 21 October 2003).

[130] In Mele, for example, there are village police who even wear a special uniform and who work on behalf of the chief to provide security and to take statements from people making complaints. I asked why they wore a uniform and they told me that the effect of this was to ‘mekem spirit blong wok blong mifala strong, igat pawa’ (make our work spirit strong and give power) (Interview with a village police officer, Mele, 31 May 2004).

[131] For example, the Lakalakabulu Council of Chiefs charges vt6000 ‘sitting fees’. Many other chiefly councils also charge sitting fees, although the amounts vary. The highest I encountered was vt15 000 per case, charged by the Sanma Council of Chiefs. Such measures have created problems because people complain that chiefs have the attitude of ‘pem mi sipos yu wantem mi mekem’ (pay me if you want me to do something).

[132] For example, the Lakalakabulu Council of Chiefs has a summons and letterhead with its logo on it, which comprises the kastom symbols of a mat and a bird as well as the blue and white check of the police.