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Customary Compensation, Report 11 [1980] PGLawRComm 4 (1 June 1980)

LAW REFORM COMMISSION

CUSTOMARY COMPENSATION

REPORT NO. 11
JUNE 1980

The Law Reform Commission of Papua New Guinea was established by the Law Reform
Commission Act 1975 and began functioning in May 1975.

The Commissioners are -

William Kaputin, Chairman

Francis Iramu, Deputy Chairman

Tamo Diro

Joseph Nombri

Samson Nuakona

Alexis Sarei

Samson Kaipu is Secretary to the Commission.

The Research Staff are -

Edward F. Graziano

Richard Scaglion

Robert Wanji

Margarete Loko

Alasdair Finnie

The Legislative Drafting Staff are -

Brian Casey

Michael Mosoro

The Administrative Staff are -

Luke Nalo

Nassain Lokoloko

Ari Heai

Jack Ukie

2nd July, 1980

The Honourable Paul Torato, M.P.,
Minister for Justice,

Sir,

We make this report under our reference to review the compensation law in Papua New Guinea. The report is mainly concerned with the function of customary compensation in settling disputes and making peace between groups who were in conflict. The Bill attached to the report provides for the recognition of customary compensation as an institution for dispute resolution and exchange of wealth and services as a medium for settling compensation claims for deaths, injuries or property damage sustained by the claimants. It also tries to control and regulate the claims and payments by specifying circumstances and amounts.

We know and fully appreciate the grave national problem that uncontrolled demands for compensation in cash, pigs, and other forms of wealth have created. We share the Government's concern that exorbitant compensation claims and enormous payments are hindering development in a large section of the country.

We therefore present this report to you with the belief that its passage would be without any undue delay. The serious situation facing the nation demands it.

Yours faithfully,

WILLIAM KAPUTIN, Chairman
FRANCIS IRAMU, Deputy Chairman
TAMO DIRO
JOSEPH NOMBRI
SAMSON NUAKONA
ALEXIS SAREI

-----------------------------------

LAW REFORM COMMISSION OF P.N.G.
CUSTOMARY COMPENSATION LAW PROPOSALS

INTRODUCTION

The proposed law is aimed at facilitating the concept of compensatory justice through the medium of payment of wealth. To achieve this purpose, it controls and regulates the practice of compensation in accordance with traditions and customs, while at the same time it attempts to prevent abuses of the institution.

THE RATIONALE OF THE PROPOSED LAW

Customary compensation payment as a means of settling disputes is not a new phenomenon. It stems from the traditional form of retribution of restoring sociological- equilibrium in societies by the principle of a life for a life. The practice of compensation occurs at a level of cultural development of a people when mutual and peaceful co-existence has been recognized. It replaces the primitive form of retribution by a life for a life which is inhuman.

Compensation is involved with the exchange of material wealth, goods or even with people. When a person is said to be responsible for an act, wrongful or otherwise, to another person and he is required to pay over a certain amount to the person aggrieved, the settlement is said to be made by compensation. The institution is a cultural expression of maintaining, adjusting, restoring, redefining, or creating the numerous relationships that hold society together. Relationships are marked by the payments, or are at least the indispensable medium in terms of which relationships are based.

On the material side compensation expresses the value of a life lost. True, material wealth however high its value cannot be the equivalent to loss of life. However the people’s concept of compensation does represent the closest human perceived equivalence to the value of a life lost. The same is true for the compensation of injuries or for the damage or loss of properties. In other words it is a form of restitution. But together with restitution, compensation also expresses more important values. It mends, restores and strengthens relationships so that society is back in order. Further, compensation also provides an element of retributive sanction for breaches of norms. Imprisonment under the criminal justice system is not the best equivalent. It merely locks offenders away in a sanctuary from their duties and obligations in their societies and as such it is quite fruitless in PNG societies.

The institution of compensation is part and parcel of a broader principle that governs the people’s social life. It is a very powerful institution of social control and we must therefore utilize it to the full. It would be a fallacy to abolish the practice of compensation altogether. Because then there would be no equivalent traditional institution to replace it that would perform the same teleological functions of knitting society together.

True the application of the principle if not properly administered can have a devastating effect on the social life which it is supposed to keep intact. That is, its application can be abused. This has become very noticeable in the Highlands region. We have seen that very high compensation has been demanded and invariably paid. In fact some of the high demands indicate that the party claiming compensation does not really want to settle. They would know that by doing so the other side will not meet the claim. So they would still prefer to fight out the old scores on the battle field. Further even in cases where high compensation has been met the side effects of it are quite devastating to the social life of the people. The donor clan becomes impoverished and their plans for development and self-improvement are disrupted. Indigenous businesses and prospective ones too have failed because the money to finance them has often been used for payment of compensation. Further it appears that after compensation has been paid the donor clan or group waits for the chance to make a counter-demand. That is once a group pays a large sum in compensation it anxiously waits or rather is on the prowl for an opportunity to claim it back. And as such competitiveness develops in compensation claims which is evidently an abuse of the institution.

On the other side the members of the clan or group receiving compensation also suffer. They perpetuate a system in which they themselves eventually get caught on the wrong side. The money and goods they receive are not earned by their industry and are usually just spent idly. This had led to people becoming lazy at times. Sometimes squabbles occur over the distribution of such money and goods which have led to further injuries or even deaths within the clan or group itself. As a result, both social and economic development, especially in the Highlands region, are severely hampered.

Concern has now been strongly voiced by the people throughout the entire region of the Highlands that a law must be made immediately to control and regulate the practice of compensation with the purpose of eliminating such abuses. Consideration has been focussed more on the Highlands region. However we should not be complacent about its practice in the coastal areas between tribal groupings. In fact we have also seen its abuses there. In any case it will become more difficult and its abuses will be much worse now where the Government has to deal with claims by Provincial tribal groupings than with disputes between groups of smaller tribal groupings of the same locality as before.

The practice of compensation varies slightly from society to society within the country but the basic teleological concept of the institution is the same throughout the country. Some would argue that some aspects of the practice of compensation are not traditional. For instance they contend that injury or death caused by a motor vehicle is not traditional and therefore customary compensation should not apply to it. This argument is superficial and reveals conceptual ignorance of the function of compensation. It is true that the introduction to the scene of PNG societies of modern technology, e.g. motor vehicles, is a new phenomenon but the fact of death is not a new thing. The conceptual distinction between the fact of death and how it is caused is immaterial. The teleological conception of the institution of compensation, that is, to maintain, adjust, restore or redefine the sociological equilibrium in societies remains the same as it was in the past, is at the present and will be in the future. The functions which it serves will remain constant in the future even though the practice may vary slightly according to the changing circumstances of time. Accordingly, the traditional mentality or conception of their social life, the way in which property damage, injury or death is caused and by what means, whether modern or otherwise, is immaterial. What matters is that whoever is linked with an eventuality is imputed responsibility; who is then obliged to meet the functions of compensation and thereby restore the status quo. And so death or injury caused by motor vehicles still comes within their perception to be covered by customary compensation.

However, we recommend that in this area, customary compensation should not be paid for injury or death caused by motor vehicles not because it is wrong to do so but because it has a compensation scheme already in existence to take care of it. The Government has seen the necessity for requiring owners of motor vehicles to pay money into the Basic Protection Compensation Scheme to meet the circumstances of deaths and injuries occurring as a result of the introduction of motor vehicles here.

But the collection of money under this scheme is no different to members of a clan or group gathering money together for a customary compensation payment. In the former owners of motor vehicles are required by law to contribute money together and in the latter members of clans are obliged by customs to put money or wealth together as compensation. In fact the former has its origins from the concept underlying the latter practice. The only distinction is that the former is run under modern organizational practices whereas the latter follows the traditional form of organization.

What this new proposal attempts to develop and control is in fact the idea of compensatory justice as opposed to securing justice based on the principle of a life for a life. A distinction between these two concepts is still quite blurred of course at present as far as some tribes in P.N.G. are concerned. For instance some high compensation payments in the Highlands have not worked as effectively as they should, because instead the aggrieved party has still sought justice by payback killing to restore the status quo. But this has to be understood against the background of the social structures, ways of life and the degree of cultural development to which the people have advanced. And if compensatory payment has failed among some tribes, it is because they have not yet recognized compensatory justice apart from the old form of retribution of a life for a life. This can be clearly seen in the Highlands among some tribes. It occurs in a situation where the rival tribes are still traditional enemies. Compensatory justice on the other hand will only be recognized in a situation where the people concerned have reached a stage of mutual and peaceful CO-existence. The long term aim is to develop the concept of compensatory justice in cases where compensation would normally be applicable.

We are fortunate in that at the level of cultural development at which we are at present compensatory justice can still be self-regulatory. This is why we recommend an administrative tribunal and not a court of law to deal with compensation claims. Its purpose is to provide a forum for negotiating and mediating the degree of responsibility to be imputed to the offenders and the amount of compensation to be paid. We recommend that the setting up of the administrative tribunal and the administration of the proposed law would be the responsibility of the Provincial Governments. This is because each Provincial Government would be in a better position to know the customs and traditions of their respective peoples and therefore be able to deal with them more effectively.

CONCLUSION

Most commentators on customary compensation in P.N.G. have echoed the view that it would be difficult to draft a law to deal with this problem. We invite them to consider the approach we set out in the proposed bill. It does not limit, restrict or expand customs and traditions. The only restrictions it has are in the field of tribal warfare. The core of the proposed law is to regulate in accordance with traditions and to prevent deviations that amount to abuses of the system. In-built into the proposed law is an effective indirect control and deterrent which will help towards eliminating tribal warfare. It prohibits customary compensation to be paid by either party where death, injury or property damage is caused as a result of tribal warfare or intergroup fighting. Compensation is also prohibited in cases of payback killings or injuries.

The proposed bill although quite small has a lot in it. It is a clear cut approach that we believe would operate effectively within the fabric of the societal order. We recommend that the approach embodied in the bill is the best way of handling this problem area. Work on this proposed law is based on research carried out for the Law Reform Commission by the Chairman, Mr W. Kaputin and Commissioner Mr J. Nombri.

The views embodied in this Report are the people's views collected during consultations between the two commissioners and the people and Provincial Governments, especially those of the Highlands region. The Commission visited Mt Hagen, Mendi, Wabag, Kundiawa, Goroka, Wewak, Rabaul, Alotau, Kerema and Daru. We also invited and received written comments from a wide range of people including other local and Provincial Governments. The draft of this Report was also published in the national newspaper, the Post Courier, in order to reach a wide public audience. There was a very good response to the draft by the people.

(LAW REFORM COMMISSION DRAFT)
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

A BILL
for
AN ACT
Entitled

Customary Compensation Act 1980

Being an Act to -

(a) recognise the making of claims for and the payment of customary compensation;

(b) prohibit the claiming and payment of customary compensation in certain cases;

(c) provide for maximum amounts of customary compensation to be paid;

(d) provide for the setting up of a tribunal before which claims for customary compensation may be negotiated and mediated; and

(e) provide for arbitration of disputes where settlement cannot be obtained;

and for related purposes.

The Act aims at facilitating the concept of compensatory justice through the medium of payment of wealth. To achieve this purpose, it controls and regulates the practice of compensation in accordance with traditions and customs, while at the same time attempts to prevent abuses of the institution of compensation.

MADE by the National Parliament to come into operation in accordance with a notice published in the National Gazette by the Head of State, acting with, and in accordance with, the advice of the Minister.

PART I – INTRODUCTORY

1. - INTERPRETATION

In this Act, unless the contrary intention appears -

"Act or omission done or made against a party" includes an act or omission done or made against another person who is under the party's immediate care, or to whom he stands in conjugal, parental, filial or fraternal relations, or in a master or servant relationship, or against a member of his group.

"Chairman" means the Chairman of the Tribunal.

"Custom" means the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial;

"Customary Compensation" means compensation which a person or group who according to custom is liable to meet for an act or omission done against the aggrieved party. It includes services performed in satisfaction of the act done or omission made against the aggrieved party. It excludes all other forms of compensation paid under any other laws or for any other legal rights.

"Dispute" includes any case where a party whether it is a person or a group complains of and is genuinely aggrieved by the actions of another person or group but does not include a complaint against an official act.

"Group" means

(a) a family;

(b) an extended family;

(c) a sub clan;

(d) a clan;

(e) a sub tribe;

(f) a tribe;

(e) amoiety;or

(g) any group of persons recognised by custom as having a common interest in the matter in dispute.

"Injury" includes sexual assault.

"Property" includes customary areas recognised as such for the growing, hunting and gathering of food, the supply of water and the catching of fish and other marine or aquatic animals.

"Tribunal" means a Customary Compensation Tribunal established under this Act.

NOTES: "Custom" has the same meaning as in the Interpretation (Interim Provisions) Act 1975, the Native Customs (Recognition) Act 1963, and as in the proposed Underlying Law Bill contained in the Law Reform Commission Report No. 7.

"Customary Compensation" has been defined so as to preserve its traditional customary connotation and to avoid any confusion with damages and compensation available as a legally enforceable right under any laws.

"Dispute" has the same meaning as in the Village Courts Act 1974.

"Group" has been defined as such because P.N.G. societies are organized on a kinship basis. Social relations are primarily kinship relations. But kinship in primitive societies is a social phenomenon and not simply biological; it is not even based solely on the people's ideas of procreation. This is why while allowing for the normal customary groupings like the clan, tribes etc. there may be some people who may have common interests of some kind but may not fall within those traditional groupings. In that case it would be up to the Tribunal then to recognize them as a group for the purposes of proceedings before it.

"Property" is defined to include recognized customary areas in which a group could have an interest in such activities as food gathering, hunting or water supply.

PART II - LIABILITY FOR CUSTOMARY COMPENSATION

2. - RESPONSIBILITY FOR DEATH INJURY OR PROPERTY DAMAGE

In this Act for the purpose of establishing liability to pay customary compensation, the responsibility for causing death, injury or property damage shall be determined upon the basis that responsibility rests with the person or group who according to the customs of the disputing parties have, by act or omission or in other circumstances, substantially contributed physically or morally to such death, injury or damage.

NOTES: The majority of indigenous people have not yet fully appreciated the conceptual distinction between being criminally responsible and moral blameworthiness. Both form one concept. Under the common law of England defendants are normally found guilty and convicted only for being criminally responsible for an offence. But in Papua New Guinea societies, defendants may not be criminally responsible and may not themselves commit the offence but are nevertheless sanctioned for being morally responsible for the wrong. According to the people's perception, defendants have two elements to satisfy before they are exculpated. In fact many more people would be adjudged guilty together with the person who actually commits the act according to the people's sense of justice than in the western sense. The people's sense of justice is in fact conceptually based on group responsibility which is a fact of life in our societies at this stage of cultural evolution. When an offence is committed it is a wrong against the group or community to which the victim belongs. Likewise responsibility for the wrong done is not only imputed to the individual offender himself but simultaneously to the clan or group from which he comes. This is how traditional order has been effectively maintained in that an individual is reluctant and constrained to commit an offence that he knows full well would place his group in jeopardy. Not only that but that he knows he would have to meet double penalties both from the aggrieved party and also from his own group.

3. - DEATH, INJURY OR PROPERTY DAMAGE SUBJECT TO CUSTOMARY
COMPENSATION

(1) Subject to Sub-section (2), customary compensation shall be paid where death, injury or property damage occurs in circumstances in which the liability to pay compensation is based on the custom of the group to which the victim or property belonged.

(2) Customary compensation shall not be paid where -

(a) the death, injury or property damage is caused as a result of payback or revenge; or

(b) the death, injury or property damage is caused as a result of tribal warfare or intergroup fighting; or

(c) the death, injury or property damage is not caused by either paragraphs (a) or (b), but as a result of any person or group involved or embarked on a course of revenge, payback or intergroup or tribal fighting.

(3) Notwithstanding Subsection (2) if a person or group can establish beyond reasonable doubt that he or they were acting purely in self-defence to prevent any death, injury or damage, customary compensation may be paid depending on the circumstances of the particular case.

NOTES: This is to prohibit people who would commit an act of payback and at the same time demand compensation for the original death, injury or damage against them, which does happen at times. It is also a safeguard against people who commit acts of payback but deny it in order to claim compensation for the original wrong. Once the aggrieved party of the original act has committed an act of payback, not necessarily in the exact equivalence, he would not be entitled to compensation. And the original offender would not have to pay compensation.

The fundamental principle however would be that people who take the law into their own hands would be severely dealt with. This proposal to deny payment of compensation in this context would be one effective measure of getting the message across to the people not to exact their own justice but to use the proper legal process to settle their wrongs and grievances.

Each party bears their respective losses for entering the fight. This is an indirect but very effective way of curbing and eliminating tribal warfare. Another fundamental reason is that it would teach the people not to take the law into their own hands. It can be contended that to prohibit compensation in this case would deny the teleological functions of the institution to operate. Of course but when the aggrieved party resorts to warfare to achieve the status quo, that implies that compensatory justice has not been recognized yet in the particular instance. Therefore compensation has to be denied because it would not usefully serve its purposes in that regard.

4. - PROHIBITION ON CLAIMING CUSTOMARY COMPENSATION IN CERTAIN CASES

(1) It shall be an offence triable summarily for any person individually or as part of a group to claim from any other person or group any customary compensation as a result of-

(a) death, injury or damage caused by payback;

(b) death, injury or damage caused by or resulting from tribal warfare, or intergroup fighting, or fighting between members of the same group;

(c) death or injury or damage resulting from the use of a motor vehicle.

Penalty: up to 6 months imprisonment or a fine of K1000 or both.

(3) It shall be for the tribunal to determine whether or not a death, injury or damage in respect of which a claim for customary compensation is made results from inter-group fighting or payback.

(4) A claim for customary compensation shall not be recognised or enforceable if it is made or brought more than three years after the occurrence of the event which caused the death, injury or damage to which it relates.

(5) Where a claim for payment of customary compensation is brought by a person or a group against another person or group, and is agreed to or determined by the Tribunal, the person or group bringing the claim shall, apart from an action to enforce a contract of insurance, be debarred from recovering any amount by way of compensation or damages in any court in respect of the death, injury or damage forming the subject of the claim for customary compensation.

NOTES: By this section it is made an offence to claim compensation in respect of payback, revenge, inter tribal or inter-group fighting which are actions prohibited by law. Claims for customary compensation are prohibited where deaths, injuries, or damages are caused by a motor vehicle. Compensation paid in this context is available under the Motor Vehicles Basic Protection Compensation Scheme or third party liability insurance.

A limitation of three years is proposed for bringing claims for customary compensation. This is to prevent old grievances unnecessarily being renewed or brought up again and causing social disturbances in the communities. In any case compensation is to be used principally for present and recent disputes. Further the longer the period allowed for a matter to be brought before the Tribunal the more difficult it would be for members of the Tribunal, who would not be qualified lawyers, to tackle the issues of evidentiary proofs.

5. - COMPENSATION NOT PAYABLE WHERE INHUMAN RITES PRACTISED

Customary compensation shall not be paid where the person in respect of whom the compensation is claimed has been killed or injured as a result of voluntarily entering into or participating in practices or rituals which are inhuman or repugnant to the general principles of humanity.

NOTES: In most cases in Papua New Guinea people usually enter and participate in rituals voluntarily. This would attempt to prohibit and eliminate practices that would be inhuman and dangerous to human health. But the organizers of the rituals should still be prosecuted under the criminal law.

PART III - CUSTOMARY COMPENSATION TRIBUNAL

6. - CUSTOMARY COMPENSATION TRIBUNAL TO BE ESTABLISHED

(1) The Provincial Government may establish a customary compensation tribunal.

(2) The customary compensation tribunal shall consist of –

(a) a Chairman who shall be the Provincial Premier, or if he is for any reason unable to act as Chairman, his nominee who shall be the Provincial Secretary or a Minister of the Provincial Government;

(b) a Village Court Magistrate appointed by the Chairman who shall have no direct or indirect personal interest in the matter before the tribunal;

(c) two persons recognised as leaders or nominees of the disputing parties, one to be nominated by one party and one by the other party; and

(d) a minister of religion appointed by the Chairman after consulting with the disputing parties who shall be a member of the religion mainly professed by the parties, or where there is a difference of religious beliefs, shall be a minister of religion agreed upon by the parties.

(3) A quorum of the tribunal shall consist of four persons but no sitting of the Tribunal shall be held unless the Chairman and the persons mentioned in subsection (2)(c) are present.

NOTES: We recommend that the setting up of the administrative tribunal and the administration of the proposed law be the responsibility of the Provincial Governments. This is because each Government would be in a better position to know the customs and traditions of their people and therefore be able to deal with them more effectively. And further in accordance with the spirit of decentralization of powers, it would be in the best interests and welfare of their people that Provincial Governments take the responsibility for it. We also believe that a Village Court Magistrate and a Minister of Religion should be present on the Tribunal to provide independent views and authority to the Tribunal.

7. - FUNCTIONS OF CUSTOMARY COMPENSATION TRIBUNAL

(1) The functions of the Tribunal shall be -

(a) to provide a means whereby claims for customary compensation may be negotiated between the parties to a dispute;

(b) to act as a mediator where parties to a claim for customary compensation are unable to agree as to the liability to pay compensation or the amount and type of compensation and the manner in which it is to be paid;

(c) where after negotiation and mediation have failed to achieve agreement between the parties, to determine the question of liability to pay compensation and the amount and type of compensation and the manner in which it is to be paid.

(2) The parties to any negotiations, mediation or determination of any matter shall be bound thereby.

(3) The Chairman shall upon agreement being reached or a determination being made under Subsection (l) shall make an order incorporating the terms of the agreement reached.

NOTES: P.N.G. is fortunate in that its present stage of cultural development necessitates that at present compensatory justice can still be self-regulatory, This is why we recommend an administrative tribunal and not a court of law to deal with compensation claims. Its purpose is merely to provide a forum for negotiating and mediating the degree of responsibility to be imputed to the offenders and the amount of compensation to be paid.

8. - COMPENSATION OFFICER

(1) The Provincial Government may appoint a compensation officer who shall be responsible for maintaining the records of the Tribunal, and for preparing matters to come before the Tribunal, and for generally undertaking such investigations and duties in relation to customary compensation claims as the Chairman may require.

(2) The compensation officer shall keep a record of the following matters in respect of every dispute which comes before the Tribunal -

(a) name and personal details of the deceased or the victim;

(b) details of immediate family dependants;

(c) clan and other affiliations;

(d) arguments relating to the payment of compensation;

(e) the custom of the parties;

(f) the amount of compensation paid;

(g) observations of the tribunal as to

(i) the attitudes of the parties;

(ii) the prospects of a lasting settlement;

(iii) future prospects of peace or- violence between the parties;

(h) previous payments of compensation;

(i) history of the relationship between the parties; and

(j) such other matters as may be relevant;

NOTES: It will be necessary for some person to do some investigatory and preparatory work for the Tribunal as well as keeping records etc. To this end a compensation officer should be appointed in each province.

9. - MATTERS TO BE HEARD IN PLACE IN WHICH THEY ARISE

(1) Subject to Subsection (2) any claim for payment of customary compensation, or any matter in dispute shall be brought before the tribunal in the place where the incident giving rise to the claim of compensation occurred.

(2) Where it appears to the Tribunal that the matter before it should be more appropriately dealt with in another place or by another tribunal, the Tribunal may with the consent of the parties order that the matter be dealt with in some other place specified in the Order, or by another tribunal.

(3) The Tribunal may convene and sit at any place which may appear suitable and may adjourn its sittings from place to place and from time to time.

NOTES: While basically the Tribunal should sit at the place where the matter arose, provision should be made for the sitting to be held at some other place when appropriate.

PART IV - PROCEEDINGS BEFORE TRIBUNAL

10. - MATTERS MA Y BE BROUGHT BEFORE TRIBUNAL

(1) Where there is a dispute concerning the payment of customary compensation either party to the dispute may bring the matter to the notice of the customary compensation officer who shall advise the Chairman of the existence of the dispute.

(2) The Chairman on receipt of the advice from the customary compensation officer shall convene a meeting of the Tribunal.

(3) Where it comes to the notice of the Chairman that there is a dispute in connection with the claiming or payment of customary compensation which is not likely to be settled peacefully, the Chairman may call the parties before the Tribunal for the purpose of having the dispute settled before the Tribunal.

(4) The Chairman may by notice in writing served on any person within a reasonable time before a hearing require that person to attend at a hearing of the Tribunal at a place and time specified in the notice.

(5) It shall be an offence punishable on summary conviction if a person wilfully fails to appear before the Tribunal having been given notice and served by the Chairman to appear.

Penalty: Up to one month's imprisonment or K100 fine or both.

NOTES: Either party may bring a dispute before the Tribunal, or the Chairman, when he is aware that a dispute exists, may require the parties to appear before the Tribunal with a view to having the dispute settled.

11. - CRIMINAL AND CIVIL LAW NOT TO APPLY IN DETERMINATION OF LIABILITY FOR COMPENSATION

The tribunal may have regard to any criminal or civil proceedings in respect of the death, injury or damage which gives rise to a claim for customary compensation, but the result of any such criminal or civil proceedings shall have no effect on the responsibility or liability of any person or group to make or pay compensation.

NOTES: Although it would not be bound by any criminal or civil proceedings arising out of the same circumstances, the Tribunal would be able to consider them and give them due weight in determining matters of responsibility.

12. - CIVIL CLAIMS FOR CUSTOMARY COMPENSATION TO BE REFERRED TO TRIBUNAL

Where a claim for customary compensation is brought before any court, then subject to Section 17, that court shall refer the matter to the Tribunal established in the area nearest to where the claim arose, and subject to this Act, the Tribunal shall have exclusive jurisdiction to deal with the matter.

Explanatory Note: The purpose of this clause is to ensure that claims for customary compensation are dealt with only by Compensation Tribunals.

13. - CUSTOMARY COMPENSATION PAYMENT FOR DEATH

Where a claim for customary compensation is made in respect of the death of any person, and it is agreed between the parties, or determined by the Tribunal that compensation is payable, then the amounts of compensation to be paid shall be as agreed between the parties, or as determined by the Tribunal but in any case shall not exceed the following-

(a) on the death of a child who has not reached the age of eight years, K1,500 in cash or in kind;

(b) on the death of a person from eight years old who has not reached the age of sixty years, K3,000 in cash or kind;

(c) on the death of a person sixty years of age or over, K 1,500 in cash or kind.

14. - CUSTOMARY COMPENSATION PAYMENT FOR INJURIES

Where a claim for customary compensation is made in respect of injuries suffered by any person and it is agreed between the parties, or determined by the Tribunal that compensation is payable, then the amount of compensation to be paid in cash or in kind shall be the amount agreed to by the parties, or failing agreement as determined by the Tribunal, but in no case shall exceed K1,000.

15. - CUSTOMARY COMPENSATION FOR PROPERTY DAMAGE

Where a claim for customary compensation is claimed in respect of property damaged and it is agreed between the parties or determined by the Tribunal that compensation is payable, then the amount of compensation to be paid in cash or in kind shall be the amount agreed to by the parties, or failing agreement as determined by the Tribunal, but in no case shall exceed K 1,000.

NOTES: For sections 13, 14 and 15: The basic payments under these sections are aimed at attempting to soothe the immediate feelings and settle the dispute. But if the plaintiff is still dissatisfied with the amount of compensation, he can take the matter up to the National Court for additional compensation if the merits of the case warrant it (as is provided in clause 17). However, the basic rationale of this particular approach is that in regard to the economic capabilities of most people or groups, such basic rates could be readily met whereas any amounts above those could not be afforded. If awards of compensation are not readily met, then the conceptual functions of the institution of compensation cannot be set to work. It is also believed that if the basic rates are paid quickly, in most cases, this could settle everything and would end the matter there and then. There would therefore be no necessity to take the extra trouble of going to the National Court for extra compensation.

It should be noted that intentional and non-intentional killing, injury or damage to property would have the same basic rates of compensation. But it should be borne in mind that additional punishment for intentional killing, injury or damage would be met by a custodial sentence that the court would impose if a person were found guilty of having committed an offence.

PART V - REVIEW AND APPEAL

(1) Where the Tribunal has made an award under the provisions of Section 7(3), either party may apply to the Tribunal to have the matter reviewed if the party concerned is not satisfied with it.

(2) The Tribunal upon reviewing the award may take into account any fresh material which may be relevant to the matter in dispute.

(3) Upon review the Tribunal may confirm or vary or cancel the determination.

NOTES: The idea behind this is not to unnecessarily involve the people in the long and cumbersome procedures of appeal to any other courts. It is better that the procedure is kept within the Tribunal itself for faster hearing of disputes. The other reason also is to get away from proper court procedures with its rigid rules of evidence and formalities, which are too far remote from the traditional manner of settling disputes. The only opening would be an application to the National Court for mere assessment of the quantum of additional compensation (as earlier explained).

17. - APPEAL TO NATIONAL COURT ON AMOUNT OF COMPENSATION

(1) Where by determination of the Tribunal liability for the payment of compensation is determined and if the person or group in whose favour the determination is made is dissatisfied with the amount of the customary compensation awarded, the party seeking the increase may appeal to the National Court to have the amount of compensation increased.

(2) On an appeal to the National Court the Court shall not be bound by the limits of compensation set out in Section 13, 14 and 15 but shall have regard to the levels of compensation payable in respect of similar claims.

(3) The National Court shall only have regard to matters of quantum and shall not be concerned to enquire into matters of custom or liability to pay customary compensation which shall be the responsibility of the Tribunal.

(4) In considering an appeal under this Section, the National Court shall have regard to –

(a) In the case of death

(i) the status of the deceased in his community;

(ii) the earning capacity of the deceased;

(iii) the hurt and insult inflicted upon the person or group bringing the claim;

(iv) any matter of aggravation;

(b) In the case of injury

(i) the loss of earnings of the injured person;

(ii) any disability or permanent incapacity suffered by the injured person;

(iii) the hurt and insult inflicted on the accused;

(iv) any matter of aggravation;

(c) In the case of property damage

(i) the value of the property damaged;

(ii) the value of production. lost;

(iii) the value of replacement of the property.

NOTES: In cases where the amount of compensation recoverable before the Tribunal is less than would be justified in the circumstances of a particular case, the claimant may appeal to the National Court on the matter of amount of compensation only.

PART VI - ENFORCEMENT OF COMPENSATION ORDERS

18. - IMPRISONMENT OF GROUP LEADERS FOR NON PAYMENT OF CUSTOMARY COMPENSATION

(1) Where an order made under Section 7(3) remains unpaid three months after the date on which it was made, a District Court Magistrate may, on the application of the Chairman order that some or all of the persons who are liable for the payment be imprisoned for a period not exceeding six months and may issue his warrant accordingly.

(2) Subject to Subsection (3) an order for imprisonment under Subsection (1) has the same force and effect, and shall be enforced in the same way, as an order for imprisonment after conviction for an offence by a District Court.

(3) Where at any time after an order for imprisonment is made under Subsection (1) and before the release of the persons serving a term of imprisonment under that order the payment is paid in full or in part, any person may apply to a Magistrate to have the order for imprisonment reviewed.

(4) Where an application for a review is made to a Magistrate under Subsection (3), the Magistrate –

(a) shall, where the payment has been paid in full, cancel the warrant of imprisonment and direct that any person being held in custody under the order and warrant be released; and

(b) may, in any other case, reduce the term of imprisonment imposed on any person under the order being reviewed by such amount as, in his opinion, is proportional to the amount of the customary compensation paid, and shall amend the warrant of imprisonment accordingly or cancel the warrant and issue a fresh warrant.

NOTES: This provision is very similar to Section 20 of the Inter-Group Fighting Act 1977 to allow action to be taken against leaders where a group fails to comply with an order of the Tribunal.

PART VII - MOKA COMPENSATION

19. - MOKA COMPENSATION

Payment by way of moka gift or compensation to members of allies of the donor group for participating in tribal warfare or group fighting or on the death or injury of a member shall not include cash.

NOTES: This is an exception to section 3(2)(b). But the practice of moka peculiar to Highlands societies is an institutionalized ceremonial function which serves a lot of purposes and should not be destroyed. But it is only controlled in the sense that it has to be kept traditional and therefore cash is excluded from the compensation payment. The idea behind this is that the inclusion of cash could and has in the past provided added impetus to members of a group to be more determined to enter into tribal fights because they know they would be compensated with money if they do. But the reason for only allowing customary wealth to be paid is because the institution is an intra group function designed to maintain the solidarity of the group. And therefore it should still be allowed to be practised so long as it is not abused.

PART VIII - MOTOR VEHICLE ACCIDENTS

20. - MOTOR VEHICLE ACCIDENTS

(a) Customary compensation shall not be paid for death, injury or property damage resulting from motor vehicle accidents; or in addition to compensation which may normally be paid under the Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act 1974 as amended or under any other laws.

Claims or demands for customary compensation under these circumstances are prohibited. Section 4 provides penalties.

(b) If the driver in fear of his own life or those of his relatives pays customary compensation before that to be paid under the Motor Vehicles Basic Protection Compensation Scheme then the equivalent amount paid under the scheme should go to the driver to refund what he has lost and not to the deceased's relatives.

If there is any remainder of a sum that would normally be paid under the scheme, then that should go to the deceased's relatives.

(c) If the driver pays more than that usually paid out under the scheme then he should bear the loss of that extra amount.

However if the deceased's representatives take further proceedings for additional compensation under the scheme and succeed then part of that money shall be used to pay the driver the amount he has paid in excess of the sum usually paid out under the scheme.

RECOMMENDATION FOR AMENDMENT - it is recommended that amendment be made to the Motor Vehicles (Third Party Insurance) (Basic Protection compensation) Act 1974 as amended to allow for the above proposals.

NOTES: The proposals recommended above will go a long way towards solving the problem where dishonest individuals or groups are taking advantage of both worlds by claiming compensation under custom while at the same time also claiming compensation under the Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act 1974. Some claimants have deliberately and will be exploiting both systems for their own profit gains, which is an abuse of the law. However the situation in (b) and (c) must be allowed for also because this is always the first thing that the driver does immediately after the accident to save his own life or those of his relatives. In most cases especially in the Highlands he has no alternative but to pay compensation immediately thereafter, and therefore the law must recognize this eventuality. All these are in fact the views and concerns of the people voiced during the Law Reform Commission's study tour of the Highlands Provinces and elsewhere while researching the background for this Report. The people have seen the abuses and the bad effects on society arising from those taking advantage of the two systems and have suggested these proposals themselves. It is legitimate therefore to reflect the people's changing viewpoint to amend the Act concerned to embody the recommended proposals.

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