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

Public Prosecutor v Walter Kota and others (Pacific Islands: Vanuatu)
The Court also held that customary law is subject to the Constitution <strong>of</strong> the Republic
<strong>of</strong> Vanuatu and other statutory legislation. Further, the fundamental rights enshrined
in the Constitution apply to every person, irrespective <strong>of</strong> gender. Although custom
may have dictated in the past that women could be treated as property, any such
action was clearly now in breach <strong>of</strong> the Constitution. Accordingly the actions <strong>of</strong>
the defendants were found by the Court to be in breach <strong>of</strong> Article 5(1)(b) <strong>of</strong> the
Constitution which provides for the liberty <strong>of</strong> people and Article 5(1)(i) which
provides for freedom <strong>of</strong> movement.
Commentary
This case reinforced other similar decisions that constitutional and statutory
provisions in the Constitution take precedence over customary law. This decision is
important for women in Vanuatu since it challenges Vanuatu customs and redefines
the status <strong>of</strong> women. Judge Downing stated that, “Article 5 <strong>of</strong> the Constitution
makes it quite clear that men are to be treated the same as women, and women are to
be treated the same as men. All people in Vanuatu are equal and whilst the custom
may have been that women were to be treated or could be treated as property, and
could be directed to do things by men, whether those men are their husbands or
chiefs, they cannot be discriminated against under the Constitution.” The statement
<strong>of</strong> the judge indicates that the rights <strong>of</strong> Vanuatu women are changing, giving women
the freedom to make personal decisions about their lives.
The Court’s analysis <strong>of</strong> the word “force” in the Penal Code as referring not only
to physical force, but to coercion and threats <strong>of</strong> force, illustrates a much broader
understanding <strong>of</strong> the imbalances that may be present in relationships between men
and women. Whilst the Court appreciated the role <strong>of</strong> the chiefs in trying to resolve
a dispute, it noted that their actions were biased as they were based on a male
point <strong>of</strong> view. The Court’s approach throughout the case was sensitive to gender
inequalities.
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