Vanuatu customary law, locally known as Kastom, is the indigenous legal framework governing social order, land tenure, and dispute resolution throughout the archipelago. Distinct from Western punitive systems, it prioritizes restorative justice and community harmony, utilizing traditional chiefs, consensus-building, and ceremonial compensation—often involving pigs, woven mats, and kava—to resolve conflicts and maintain social cohesion.
The Core Principles of Customary Law
To understand the legal landscape of Vanuatu, one must first dismantle the Western notion of law as a codified set of written statutes enforced by a distant state authority. In Vanuatu, particularly in rural areas where 80% of the population resides, law is a living, breathing entity known as Kastom. It is not merely a legal system but a holistic way of life that encompasses religion, economics, art, and social obligations.
The fundamental principle of Vanuatu customary law is restorative justice. Unlike Western systems that focus on guilt and punishment (retributive justice), Kastom focuses on restoring the balance of the community. When an offense is committed, it is viewed not just as a violation of a rule, but as a tear in the social fabric that connects families, clans, and villages. The primary objective is reconciliation. The “winner” in a customary dispute is not the one who proves the other wrong, but the community that successfully reintegrates both parties into a peaceful coexistence.
Another key principle is consensus. Decisions are rarely handed down unilaterally. Instead, they are reached through exhaustive discussion and debate until a collective agreement is found. This ensures that the outcome is supported by the community, reducing the likelihood of future grievances.
The Role of Chiefs and the Nakamal
The custodians of Vanuatu customary law are the Chiefs. The chiefly system varies significantly from island to island—ranging from the Polynesian-influenced hereditary lines in the south to the graded societies (Nimangki) of the north, where status is earned through wealth distribution and ritual prowess. Regardless of how a title is acquired, the Chief functions as the supreme judge, mediator, and peacekeeper.
The venue for this administration of justice is the Nakamal (or Nasara on some islands). This is the traditional meeting place, often a large structure made of local timber and thatch, or a designated clearing under the banyan trees. The Nakamal is sacred ground. Within its boundaries, violence is strictly forbidden, and the word of the Chief carries the weight of ancestral spirits.
During a dispute, the Chiefs listen to all sides. There are no lawyers; parties represent themselves or are supported by family spokespeople. The process is transparent and public. By airing grievances in the open, the community bears witness to the truth, making it difficult for individuals to hide behind deceit. The Chief’s role is to guide the discussion toward a resolution that aligns with precedent and spiritual expectations.
Conflict Resolution Methods in Vanuatu
Conflict resolution in Vanuatu is a structured process designed to cool tempers and facilitate dialogue. It typically follows a specific trajectory:
1. The Initial Complaint
When a grievance arises—whether it be land encroachment, theft, assault, or adultery—the injured party brings the matter to their family head or a minor chief. Immediate retaliation is discouraged, as it complicates the eventual reconciliation process.
2. The Investigation
Chiefs and elders conduct an informal investigation. In small communities, secrets are rare, and the truth is often known before the formal hearing begins. The goal here is to gauge the emotional temperature of the parties involved and determine the scale of the required compensation.
3. The Public Hearing
The dispute is brought to the Nakamal. The atmosphere is solemn. The accused and the accuser present their narratives. Elders may interject to clarify points of history or genealogy, which is particularly relevant in land disputes. This phase can last for hours or even days, as everyone with a stake in the outcome is allowed to speak.
4. The Decision and Reconciliation
Once consensus is reached, the Chiefs pronounce the settlement. This almost always involves a Reconciliation Ceremony. This is not just a handshake; it is a ritualistic exchange that binds the parties to the peace agreement. To break a peace made in the Nakamal is a grave taboo, often believed to invite supernatural punishment.
The Currency of Justice: Pigs, Mats, and Kava
In Western law, fines are paid in fiat currency to the state. In Vanuatu customary law, compensation is paid in traditional wealth items directly to the aggrieved party. This tangible transfer of wealth acknowledges the loss suffered and physically demonstrates the offender’s contrition.
The Significance of the Pig
The pig, specifically the male pig with curved tusks, is the ultimate standard of value in Vanuatu custom. In the context of dispute resolution, the pig represents life. By giving a pig, the offender is offering a life to replace or repair the life (or dignity) they damaged. The value of the pig is determined by the curvature of its tusks—a tusk that circles back to pierce the jaw is of immense value.
Fine Mats and Kava
Red woven mats, particularly in the central islands like Pentecost and Ambae, also hold significant currency status. They are essential for “washing” the face of the victim—metaphorically cleaning away the shame or anger caused by the offense. Kava, the narcotic root drink, is the lubricant of these ceremonies. Sharing a shell of kava after a dispute signifies that the bitterness has been swallowed and digested, leaving only peace.
Examples of Customary Justice
To fully grasp the application of these principles, it is helpful to look at common scenarios where customary law takes precedence over, or works alongside, the state police.
Land Disputes
Land in Vanuatu is not merely an asset; it is identity. According to the Constitution, all land in Vanuatu belongs to the indigenous custom owners. Consequently, 99% of land disputes are settled via customary law. These disputes often hinge on oral histories dating back centuries. Chiefs must interpret stories of ancestors, ancient burial sites, and the planting of boundary markers (like specific trees) to determine ownership. The resolution often involves the losing party acknowledging the true owner, who in turn may grant the loser usage rights to farm, preserving the relationship.
Assault and Social Offenses
In a case of physical assault within a village, calling the police (who might be hours away on another island) is often seen as an escalation. Instead, the village court will convene. The offender might be ordered to pay two pigs and several mats to the victim’s family. Furthermore, the offender might be tasked with community service, such as clearing paths or repairing the Nakamal, to reintegrate into the social fold.
Integration with National Law
Vanuatu is unique in that its Constitution explicitly recognizes customary law. Article 74 of the Constitution mandates that the rules of custom shall form the basis of the ownership and use of land. Furthermore, the Customary Land Tribunal Act formalizes the power of chiefs to adjudicate land issues.
However, the integration is a complex “legal pluralism.” The formal court system (Magistrates and Supreme Court) operates alongside the customary system. In practice, the state often defers to the Chiefs for minor criminal offenses and land matters. The police may even refer a complainant back to their village Chief if they believe the matter is better suited for a customary resolution.
This hybrid model was solidified by the Customary Law Act, which empowers courts to apply customary law in cases where there is no conflicting written law. This creates a safety valve, ensuring that while tradition is honored, the fundamental rights enshrined in the Constitution are technically supreme.
Challenges and the Future of Customary Law
While robust, the system faces modern challenges. The monetization of the economy means that young people sometimes prefer to pay cash fines rather than traditional wealth, which undermines the spiritual weight of the compensation. Additionally, there are tensions regarding human rights, particularly the rights of women and children, where traditional interpretations may conflict with international conventions Vanuatu has ratified.
Urbanization also poses a threat. In the capital, Port Vila, residents from different islands with different customs live side-by-side. “Town Chiefs” have emerged to handle disputes in urban settlements, creating a new, evolved form of Kastom that blends various traditions to maintain order in a modern city environment.
Despite these pressures, Vanuatu customary law remains the bedrock of the nation’s stability. It is a resilient, adaptive system that has survived colonization and continues to define the Ni-Vanuatu identity.
Is Vanuatu customary law written down?
Generally, no. Customary law is oral, passed down through generations via stories, songs, and rituals. However, recent efforts by the Malvatumauri (National Council of Chiefs) have attempted to document certain principles to assist the formal court system.
What happens if someone refuses a Chief’s decision?
Refusing a Chief’s decision can lead to social ostracization, which is a severe penalty in communal societies. In modern times, the Chief may also refer the matter to the state police or the Island Courts, which have the power to enforce judgments.
Does customary law apply to tourists in Vanuatu?
While tourists are subject to national statutory law, they must respect customary laws, especially regarding land access (trespassing) and dress codes (taboos). Offending local custom can lead to demands for compensation (fines) by the local Chief.
Can women be Chiefs in Vanuatu?
Traditionally, chieftaincy is a male-dominated institution in most of Vanuatu. However, women hold high ranks in certain graded societies (like on Ambae) and play critical roles in peace-making processes, though they rarely preside as the supreme adjudicator in the Nakamal.
What is the Malvatumauri Council of Chiefs?
The Malvatumauri is a constitutional body composed of custom chiefs elected by their peers. They advise the Parliament and Government on all matters relating to custom and tradition, ensuring that new laws do not erode cultural heritage.
How does customary law handle murder or serious crimes?
Serious crimes like murder are typically handled by the state police and the Supreme Court due to the severity. However, a customary reconciliation ceremony is almost always performed in addition to the state prison sentence to prevent a cycle of blood feuds between the families involved.