Report - Office of the High Commissioner on Human Rights

<strong>of</strong> naming my eldest child. When we first arrived at our house, it was in a state to be demolished because
it had been abandoned when <strong>the</strong>y left for New Zealand. I wanted to live in a nice and adequate house,
so I put in a lot <strong>of</strong> money, stress and hard work to renovating <strong>the</strong> house. When my mo<strong>the</strong>r visited
and I showed her what I had done, she said “Stop, don’t renovate any fur<strong>the</strong>r”. The reason was because
I did not have a son. She explained if my husband were to drop dead today I would have no rights
to <strong>the</strong> house or land, and all <strong>the</strong> hard work would be wasted. As harsh as it sounded – it was actually
<strong>the</strong> law that my mo<strong>the</strong>r was spelling out! I had to take into account what my mo<strong>the</strong>r said – it is in
<strong>the</strong> law and <strong>the</strong> cultural ideology.
Elements – Cultural appropriateness – culture has placed male power or male patriarchy over every
o<strong>the</strong>r entitlement in Tonga’s society. Culture governs absolutely everything in society. It inserts
patriarchal power into our constitution, national government, parliament, local government, our family
structures and relations, our churches, our schools, <strong>the</strong> police, our health system, our work places our
village communities…(our pubic and private sectors). So through such a patriarchal system <strong>of</strong>
institutions, it is no wonder that:
– Women’s right to own land is not recognized;
– Women’s lived experiences are clearly irrelevant;
– The majority <strong>of</strong> women over generations have come to accept <strong>the</strong> cultural ideologies connected
to land.
Cultural patriarchy is a bomb.
Sources –
– Tongan Constitution (1875) - Section 107 provides for ‘T<strong>of</strong>ia’ (hereditary estate) – scheduled
hereditary estates are held by nobles and matapule; section 4 provides for equality before <strong>the</strong>
law;
– Land Act – governs rights to ‘api ‘uta (tax allotment) and ‘api kolo (town allotment). Every Tongan
male is entitled to a tax and town allotment when he reaches 16. This clearly discriminates against
women and is not consistent with section 4 <strong>of</strong> <strong>the</strong> constitution (equality before <strong>the</strong> law).
The Land Act states that inheritance <strong>of</strong> hereditary estates will take place according to section
107 <strong>of</strong> <strong>the</strong> Constitution. Legitimate male and female children are eligible, but primarily <strong>the</strong> eldest
male and his heirs inherit <strong>the</strong> estate. If <strong>the</strong> eldest son has no heirs, <strong>the</strong> second male child will
be given priority, and so on until <strong>the</strong> male line ends. If <strong>the</strong> male line dies out <strong>the</strong> eldest female
line will succeed. If <strong>the</strong> female line dies out <strong>the</strong> land <strong>the</strong>n reverts back to <strong>the</strong> male line. A woman
who is widowed can remain on <strong>the</strong> land until she dies, remarries or fornicates. Cultural patriarchy
is a nuclear bomb;
Constructive trusts for <strong>the</strong> house and property (but not <strong>the</strong> land) can be set up. But for a woman
to claim a share she has to prove she directly contributed a certain amount <strong>of</strong> <strong>the</strong> finances to <strong>the</strong>
marriage. The non-financial contributions are not taken into account. In <strong>the</strong> case <strong>of</strong> Etueni Alatini,
<strong>the</strong> wife was unsuccessful in making her claim because she couldn’t provide evidence <strong>of</strong> financial
contributions to <strong>the</strong> consecutive trust and <strong>the</strong> non-financial contribution was not taken into account.
Fur<strong>the</strong>r, as a widow, only if she remains sexually inactive, is she entitled to a proportion <strong>of</strong> <strong>the</strong>
economic value <strong>of</strong> <strong>the</strong> property, up to <strong>the</strong> amount <strong>of</strong> her financial contributions;
EXECUTIVE SUMMARY 191