IN THE HIGH COURT OF KIRIBATI 2022

Civil Appeal No. 16 of 2021

		[AMINUL ISLAM BABU GAZI                   APPELLANT   
		[
BETWEEN	[AND
		[
		[UAIA TEKITA                              RESPONDENT 

Before: The Hon Chief Justice 

18 March 2022

Ms Babera for the Appellant 
No appearance by the Respondents  

JUDGMENT OF HASTINGS CJ 
[1]	This is an appeal from a decision of the Single Magistrate in South Tarawa who declined jurisdiction to hear the appellant's petition for divorce. The Single Magistrate acknowledged that the appellant was a naturalised citizen of Kiribati, but decided that she had jurisdiction to hear "only natives who have true I-Kiribati blood" and dismissed the petition.
[2]	Section 28(a) of the Constitution grants the Maneaba power to make provision "for the acquisition of citizenship of Kiribati." The Citizenship Act creates a Citizenship Commission which has the power "to make a recommendation to Cabinet regarding" an application to become a citizen by naturalisation. The Citizenship Commission recommended that the appellant be granted citizenship. Te Beretitenti granted the appellant citizenship by naturalisation on 13 September 2017.
[3]	Section 23 of the Magistrates' Courts Ordinance gives the Magistrates' Courts jurisdiction "in civil causes and matters for the time being set out in Schedule 1." Schedule 1 states that "[E]ach magistrates' court shall have jurisdiction to entertain, hear, try, determine and other wise deal with (a) any petition for divorce under the Native Divorce Ordinance in which the petitioner is resident in the jurisdiction of the court and both the petitioner and the respondent are domiciled in the Gilbert Islands." Section 5 of the Native Divorce Ordinance states that a Magistrate's Court "shall have power to hear and adjudicate upon petitions under this section for the dissolution of marriages between natives when both petitioner and respondent are domiciled in the Gilbert Islands and the petitioner IS ordinarily resident within the jurisdiction of such court."
[4]	The Native Divorce Ordinance does not define the word "native" or "natives". In Kwong v Baiteke [1997] KIHC 73, Lussick CJ gave the word "native" in the Native Divorce Ordinance the meaning it has in the Native Lands Ordinance, which is "any aboriginal inhabitant of the Islands and a descendant of any aboriginal inhabitant whether wholly or partly of aboriginal descent, who has not acquired non-native status under the Native Status Ordinance" and decided the Magistrate had no jurisdiction to deal with that petition. In that case, Lussick CJ said "the petitioner testified she was a foreigner and that she wanted to return home. Under no stretch of the imagination could she be held to be a native of Kiribati."
[5] In this case, it does not stretch the imagination to consider this appellant to have Kiribati citizenship. The word "native" does not appear in the Citizenship Act or the Constitution. One might speculate that the phrasing of this Ordinance is an anachronistic survivor from colonial times when there was no such thing as Kiribati citizenship and foreigners would seek their divorces in their home countries. These days however, the Constitution is the supreme law of Kiribati and laws must be interpreted in a manner to be consistent with the Constitution. Nothing in the Constitution or the Citizenship Act creates any distinction between citizenship acquired by birth in Kiribati and citizenship acquired by naturalisation. The word "native" in the Native Divorce Ordinance must be interpreted in this light.

	For these reasons, I consider the Magistrate has jurisdiction to hear and determine the appellant's petition for divorce. Schedule 1 requires the petitioner to be resident in the jurisdiction of the Court. He is. Schedule 1 also requires both the petitioner and the respondent to be domiciled in Kiribati. They are.
[7] 	As a result, the decision of the Single Magistrate in BetDiv 12/21 dated 3 May 2021 is set aside. The Single Magistrate is ordered to hear the matter.

Dated the 4th day of March, 2022

HON. WILLIAM KENNETH HASTINGS
CHIEF JUSTICE