Report - Office of the High Commissioner on Human Rights

In <strong>the</strong> Pacific, <strong>the</strong>re are a number <strong>of</strong> such informal institutions which have constitutional status (as
in Vanuatu, Solomon, Fiji, Kiribati, Cook Islands (Solomon Islands is in <strong>the</strong> process <strong>of</strong> trying to adopt
<strong>the</strong> Fiji customary law system). They do not have de jure lawmaking authority, but enjoy de facto
lawmaking authority. When <strong>the</strong>y make pronouncements, <strong>the</strong>ir word is <strong>of</strong>ten taken as law in <strong>the</strong>
community and <strong>the</strong>ir authority can precede <strong>the</strong> authority <strong>of</strong> legislators, especially in <strong>the</strong> eyes <strong>of</strong> <strong>the</strong>
community. Chiefs are also <strong>of</strong>ten members <strong>of</strong> land courts and village courts (<strong>the</strong> latter are very strong
in Samoa). Sometimes <strong>the</strong>y also get elected to parliament, which creates direct cross-overs between
informal and formal systems <strong>of</strong> governance, giving chiefs authority in both jurisdictions. Boards
established to administer customary land distribution are also problematic for women, as conservative
male leaders tend to dominate <strong>the</strong>m. Women generally do not have access to <strong>the</strong>se decision-making
forums. Where women challenge custom, <strong>the</strong>y are penalised.
“In describing <strong>the</strong> penalties placed on women who don’t conform to cultural practices
and beliefs, we have to understand that <strong>the</strong> institution <strong>of</strong> <strong>the</strong> family is at <strong>the</strong> front <strong>of</strong>
discrimination against women. The cultural response is to penalise women for not acting
in conformity with custom, even if it is discriminatory, through harassment, victimisation,
humiliation and exclusion, which results in <strong>the</strong> denial <strong>of</strong> equal housing and land rights,
denial <strong>of</strong> dignity and a violation <strong>of</strong> women’s rights to privacy.” (Susanna Naivaga, Fiji)
In some isolated cases, women have been strong enough to challenge customary laws.
“After my husband died, I went back to my village to ask for a piece <strong>of</strong> land. My sons are
all working, and <strong>the</strong>y know that in time <strong>the</strong>y will come to me in my village. I requested my
fa<strong>the</strong>r for land for my sons and me, i.e. asking for my inheritance for being a female child
in my clan. I was able to do this because I am a human rights advocate and I know my
customary rights, toge<strong>the</strong>r this made me strong so I could ask. I called my fa<strong>the</strong>r and four
bro<strong>the</strong>rs. The land <strong>the</strong>y gave me was stony, out in <strong>the</strong> outskirts, in <strong>the</strong> mountains. I said
no, I want land down in <strong>the</strong> valley. When it comes to land, men expect women to be content
with what is given to us and not have a say. That is where men draw <strong>the</strong> line – what is
given to you, you have to take it. When <strong>the</strong> beloved female child speaks out <strong>the</strong>y tell her
to shut up. But I explained, ‘I am a widow, do you expect me to take my basket and knife
and go to <strong>the</strong> mountain’ They said, ‘You have four sons, <strong>the</strong>y can do <strong>the</strong> planting for you’.
I responded, my sons will go to <strong>the</strong>ir fa<strong>the</strong>r’s village where <strong>the</strong>y get more rights. My fa<strong>the</strong>r
is <strong>the</strong> head <strong>of</strong> my clan (consisting <strong>of</strong> approximately 10-15 families). He had to get approval
for my request for land from all <strong>the</strong> clan members. I told my fa<strong>the</strong>r I shall return from Suva
and ask him to tell <strong>the</strong> clans to give me this o<strong>the</strong>r land. I have always fulfilled all my social
obligations to <strong>the</strong> village.” (Susanna Naivaga, Fiji)
“When I returned to <strong>the</strong> Cook Islands I knew I had land, but I didn’t know my genealogy,
or <strong>the</strong> name <strong>of</strong> <strong>the</strong> land, how much land was mine, or who was on it, how to file a
succession order, court and land meeting procedures, or how to get surveys and maps
<strong>of</strong> my land, all <strong>of</strong> which I needed to obtain <strong>the</strong> right to land. Family land meetings are
held 1-3 times a year. Only elders and registered land owners can speak at <strong>the</strong> meeting.
When I spoke <strong>the</strong>y considered me greedy, cheeky, bringing New Zealand ideas and values
to <strong>the</strong> meeting and disrespecting <strong>the</strong> culture.
The title holder to my land was a traditional leader. His job was to hold <strong>the</strong> family toge<strong>the</strong>r,
but we all had equal rights to <strong>the</strong> land. In my case I asked for my land but was denied
that by my title holder. I couldn’t accept that so he took me to court.
Going to court can be difficult if you don’t know how <strong>the</strong> court works. The o<strong>the</strong>r landowner
could afford a lawyer, whereas I could not. The title holder was also <strong>the</strong> Prime Minister
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