Court/Judicial body: Supreme Court of Vanuatu
Date: May 21, 2010 CRC
Provisions:Convention on the Rights of the Child (general reference)
Domestic provisions: Constitution of Vanuatu, Article 5
Case summary
Background: Mr. Nawia, a 47 year-old man with 5 children, was accused of reckless driving and driving under the influence. He crashed his truck while driving intoxicated with a number of passengers in the vehicle, two of whom died. One of the deceased was an 11 year old boy. Given his lack of prior criminal record and strong ties to the community, Nawia was setneced to two years imprisonment, both of which were suspended. The Court also reiewed the “elaborate customary reconciliation ceremony” preformed to the chiefs and relatives of the deceased persons, which included Nawia’s presentation of crops, livestock, housewares, money, and an 11-year old girl in line with the island’s custom of adopting or swapping a young girl to replace a lost female family member.
Issue and resolution: Child swapping/adoption. The Court nullified the gift of the 11 year-old girl and ordered that she be immediately returned to her parents and family.
Court reasoning: Gifting a child is akin to child trafficking, and violates both women’s and children’s human rights. The outmoded practice “objectifies and devalues the women of Tanna and denies them their fundamental rights to humane and equal treatment, to life, liberty and security of the person.” In particular, “young girls must not be treated as mere objects or commodities that can be swapped or exchanged under any circumstances and for whatever reason, and a customary practice that treats them in that abject manner is inhuman.” It cannot be sanctioned by the law, and must never be allowed to happen again.
Excerpt citing CRC and other relevant human rights “In February this year in PP v. Andrew Kuao and Therese Sasia Criminal Case No. 131 of 2009 the Chief Justice had occasion to comment on the Tannese custom of adopting or swapping a young girl to replace a female member taken from the family that the child has been given to. His Lordship after noting the custom practice said: ‘The time will come when the Courts will say something on the customary societal rational of such a practice of swapping female child and in particular in the light of the fundamental rights contained in Article 5 of the Constitution and the Convention on Rights of the Child (CRC) to which [sic] Vanuatu has ratified.’ I endorse those remarks and would add my concern that this is somewhat like child trafficking. In this instance, a young girl was offered as part of the presentation of gifts in a custom ceremony of reconciliation. Even accepting that there was the loss of two lives in the accident and that the presentation of a young girl might be seen as a form of reparation and replacement for the loss, such a practice in this day and age objectifies and devalues the women of Tanna and denies them their fundamental rights to humane and equal treatment, to life, liberty and security of the person. Young girls must not be treated as mere objects or commodities that can be swapped or exchanged under any circumstances and for whatever reason, and a customary practice that treats them in that abject manner is inhuman and cannot be founded on Christian principles. Such practices should not be sanctioned by the law [sic] which exist for the protection of all.”
CRIN comments: CRIN believes this decision is consistent with the CRC. Customary law practices that result in children being taken from their parents as compensation violate the fundamental nature of children’s rights, and should not be allowed to continue.
Citation: PP v. Nawia [2010] VUSC 52, Criminal Case No. 39 of 2010
Link to full judgement: http://www.paclii.org/vu/cases/VUSC/2010/87.html