A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

Customary <strong>Law</strong>
Sex Roles and Stereotypes/Freedom <strong>of</strong> Movement
Public Prosecutor (Plaintiff) v Walter Kota, Chief Jimmy Kawai,
Chief Cyril Wis Menesu, Chief Andrew Koau, Chief Ringimanu,
Joseph Nayo, Charles Narun Kauiata, Thomas Nasup Nasup Taura,
Taura,
Barbara Teku Mathias, Marie Salome Morrison, Mathias Teku
(Defendants)
Vanuatu <strong>Law</strong> Reports, Volume 2, 1989-94, pp. 661-665
Supreme Court <strong>of</strong> Vanuatu
31 August 1993
Downing J
<strong>Law</strong>s Considered
Constitution <strong>of</strong> the Republic <strong>of</strong> Vanuatu, Article 5;
Penal Code Cap. 135, Sections 12, 35, 105(b).
This case deals with the conflict between customary law, criminal law and the
constitutional rights <strong>of</strong> Vanuatu women to liberty and freedom <strong>of</strong> movement. The
case was brought in the criminal law jurisdiction for charges <strong>of</strong> inciting to commit
kidnapping and kidnapping under sections 35 and 105(b) <strong>of</strong> the Penal Code. The
Court considered whether a defence <strong>of</strong> custom could be sustained in relation to these
charges.
The complainant, Marie Kota, ceased living with her husband Walter Kota after
problems in their marriage. On 31 July 1993, she had a dispute with her estranged
husband at a nightclub in Port Vila. Marie and Walter Kota were originally from
the outer island <strong>of</strong> Tanna, traditionally the most patriarchal island in Vanuatu. The
dispute attracted the attention <strong>of</strong> the community from Tanna who were living in
the capital, Port Vila. A meeting was called by two chiefs <strong>of</strong> the community to
try to resolve the dispute between Marie Kota and her husband and to promote a
reconciliation between them.
The police were consulted by the defendants and involved in forcibly taking Marie
Kota to the meeting. Marie Kota stated at the meeting that she did not wish to reconcile
with her husband and that she wanted a divorce, as he had beaten her. Nevertheless,
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CONSTITUTIONAL LAW
Pacific Islands: Vanuatu