Customary Law in the Solomon Islands
Customary systems of justice continue to play an important role in the Solomon Islands. At the heart of this is kastom. Kastom is a Melanesian concept still prevalent in the Solomon Islands that refers to ‘a whole way of life, a culture distinctive of a local group, or a generic indigenous culture’ (Jolly 1992: 330, 341). It encompasses shared traditions and social norms, as well as a variety of practices and rituals. Rousseau notes that kastom is a critical factor in the ‘legitimacy of behaviour, personality, relationship and intent’ (Rousseau 2008: 16). In the Solomon Islands, ‘[c]ontemporary kastom is marked by integration with Christianity so complete that it is now sometimes impossible to determine the origins of particular social rules, principles, or activities’ (Jeffery 2013: 164; Wallis et al. 2016: 8). Kastom also helps to smooth the sharp paradoxes between the traditional and the modern (Keesing 1993).
Kastom has been recognized as a legitimate source of laws in the Constitution (1978: Preamble, s.75, 76.1.c, sch.3.1, 3.2, 3.3), which states that ‘customary law shall have effect as part of the law of Solomon Islands’ (Constitution 1978: s.76 and sch.3.3) unless it is inconsistent with the Constitution or any act of Parliament (Kanairara 2011: 10). In cases of inconsistency, ‘the hierarchy of laws’ specifies that ‘custom law is [actually] ranked higher than common law’ (Kanairara 2013; Corrin Care 2005b: 147). Kastom is also recognized in the Customs Recognition Act (2000), in the Magistrates’ Court Act, in the Local Courts Act, and in the Wills, Probate and Administration Act (Kanairara 2011: 7), although it must be noted that the only legislative provision for kastom is the Local Courts Act, which requires that customary land dispute cases must first be heard by ‘the chiefs’ (Local Courts Act (Cap.190) 1996: s.12.1).
Unlike in other contexts, in the Solomon Islands, customary law, as part of a broader system of custom that regulates most aspects of life— colloquially referred to as kastom—has continued to be utilized. In a national survey carried out for the Regional Assistance Mission to the
Solomon Islands (RAMSI), the following was reported: ‘Guadalcanal participants said that all their disagreements were solved in the traditional way... All coastal communities also reported that chiefs, church leaders, and community elders resolved local conflicts and especially any family disagreements’ (ANU Enterprise 2012: 151).2 It is important to note that there is no one customary system, and that there is considerable diversity across the country. Goodenough suggests that ‘the concept of reconciliation and compensation [the tenets of kastom] is very important in the Solomon Islands way of life’ (Goodenough 2006: a). As one interviewee put it, ‘[t]raditional norms here in Melanesia are deeply rooted into our ancestral past and therefore deeply entrenched’ (Waena interview 2014). As Allen et al. note, ‘[t]he kastom system will often be called on to deal with social and familial problems, especially when disputes and grievances revolve around the payment of bride price, involve instances of adultery, or relate to the payment of compensation’ (2013: 39). The government itself has historically utilized customary mechanisms as a means of settling disputes in the streets of Honiara, dating to the late 1980s (Fraenkel 2004: 11).
Goodenough notes that ‘[c]ustom, including reconciliation, is still evolving’ (Goodenough 2006: c). He outlines some of this change:
In [traditional] custom, there were only three methods of punishment,
namely death, compensation or banishment. There were no niceties at
play. Compensation has survived the other two methods to the present day.
(Goodenough 2006: c)
The local courts are a good example of this. Local courts are the lowest level of courts in the Solomon Islands, and are established by the Chief Justice and staffed by prominent community members to hear civil and minor criminal cases in which all parties are residents of the local court’s jurisdictional area. Local courts may use either customary or introduced law in their decisions (Solomon Islands Local Courts Handbook 2005). But the rupture of the colonial administrative system, which had established local courts to house customary law hearings, caused the local courts’ numbers to dwindle significantly by 2008, to 18, from a total of 50 in 1970—‘and the actual number of operating local courts may have been less than 5’ (Cox et al. 2012: 16; Allen et al. 2013: 2). A 2010 World Bank study noted that, ‘[v]arious government policies over the last 15 years have included the goal of strengthening local courts. However, given that the courts rarely sit, there remains a backlog of these cases. In 2007, there was reportedly a backlog of approximately 403 cases across the country’ (Evans and Goddard 2013: 14-15).
The role of religion, and particularly Christianity, is an especially important factor that has shaped the development of kastom in the Solomon Islands. At the time of writing, just under 2 % of the population was identified with a religion other than Christianity or no religion at all, while the vast majority—nearly 97 %—reported adherence to a Christian religion: ‘Protestant 73.4 % (Church of Melanesia 31.9 %, South Sea Evangelical 17.1 %, Seventh Day Adventist 11.7 %, United Church 10.1 %, Christian Fellowship Church 2.5 %), Roman Catholic 19.6 %, other Christian 2.9 %’ (Central Intelligence Agency 2011). As Braithwaite et al. note, ‘Christian traditions of forgiveness and their blending with indigenous practices of reconciliation have proved useful in transcending outbreaks of warfare that have been exacerbated by other centrifugal impulses of the global community’ (2010: 13). Evangelical believers and primarily those who belong to the South Sea Evangelical Church, and those who adhere to the Seventh Day Adventist faith, have been actively discouraged from taking part in customary ceremonies, and especially the payment of compensation, which normally takes the form of strings of shell money and sometimes feathers, although even these churches are less strict on the matter than they used to be (Kenilorea interview 2014). Still, the rituals commonly include Christian symbols like mutual prayer and apology (Allen et al. 2013: 40).
Following the Tensions, government leaders, with the cooperation and participation of cultural leaders, ‘staged Kastom reconciliation spectacles’ (Fraenkel 2004: 7) in an attempt to resolve the conflict. In doing so, leaders were explicitly ‘[a]ppealing to Melanesian custom [that] played an important ideological role during the crisis’ (Fraenkel 2004: 10). In May 1999, for example, a public reconciliation feast was held at the cultural village in Honiara. According to Fraenkel’s account, ‘ [after Christian prayers extolling compensation as a tool for avoiding violence, village elders from Malaita and Guadalcanal, garbed in traditional dress, exchanged gifts of shell money and pigs, 20 kg sacks of rice and cartons of tins of Solomon Blue tuna’ (2004: 65). Smaller reconciliation feasts were also held in villages in different parts of the country (Fraenkel 2004: 66). RAMSI even initiated a reconciliation ceremony in 2011, after a man was killed when Tongan soldiers serving under RAMSI shot him (Reconciliation Ceremony 2011).
Today, these kinds of cultural feasts continue to be used in the resolution of conflict within communities and nationally. For example, in early January 2014, a priest was attacked during on-going discord between young people on Guadalcanal, and a traditional reconciliation ceremony was held to encourage people to ‘apologize, forgive and pray for each other.’ The provincial premier attended the ceremony, and ‘congratulated all parties for successfully settling the matter the way it should be settled’ (Inifiri 2014: 9). Sixteen tribes on Malaita came together to reconcile after disagreement over the building of a new harbor (Lofana 2014: 12). And the Ministry of National Unity, Reconciliation and Peace (MNURP), along with RAMSI, has carried out a number of reconciliations and is planning other reconciliations (called solovisu) (Rukale interview 2014), including a roundtable ‘over incidents of the tension a decade ago’ (Puia 2014: 2; PINA 2013; PM&C 2014; SIBC 2014; SIG 2014). A solovisu is a traditional reconciliation ceremony that is one of the first steps in the resolution of conflict, after the chupu or the opening of a dialogue between the parties to a conflict. SIG leaders frequently encourage the use of these kinds of practices (Konainao 2014: 9) and seek to reinforce their importance for Solomons’ society (Renga 2014: 8). In October 2013, the Cabinet of the Government of the endorsed the solovisu as a framework of responding to future problems, and using kastom to mediate disputes in which the government is involved (Mae interview 2014; Tagini interview 2014).