Jioji Kotobalavu, a former permanent secretary in the civil service and current public law lecturer at the University of Fiji, emphasizes the importance of reviewing and amending the 2013 Constitution before proceeding with the Fiji Truth and Reconciliation Commission (TRC). He specifically points to the provisions in Chapter 10 concerning ‘State of Immunity,’ highlighting that the existing blanket immunity for public officials—effective for actions taken from December 2006 to the first sitting of Parliament—could significantly undermine the TRC’s effectiveness.
Kotobalavu expresses concern that this immunity prevents the TRC from adequately addressing essential human rights violations, suggesting that without amendments to these provisions, the TRC’s mandate may be jeopardized. He argues that such immunity obstructs justice and allows those responsible for past abuses to evade accountability, ultimately hindering the TRC’s potential to foster genuine reconciliation.
Drawing a comparison with South Africa’s successful TRC, where no similar immunity was granted, he underscores that Fiji’s existing constitutional provisions are unjust and deprive victims of the justice they deserve. Despite support for the TRC from prominent leaders, including Prime Minister Sitiveni Rabuka and Mahendra Chaudhry, Kotobalavu advocates for a careful approach.
Currently, a steering committee is conducting public consultations regarding the proposed TRC. In his opinion, the TRC should only begin its work after the 2013 Constitution has been scrutinized and revised. He outlines the implications of the current provisions on state immunity, which offer unconditional protection to public officials from prosecution for actions taken during a specific timeframe.
Kotobalavu stresses that the framework established by South Africa’s TRC provides crucial lessons. The South African TRC aimed to address gross human rights violations during the apartheid era, encouraging both perpetrators and victims to engage in mutual truth-telling and forgiveness. Under this model, the Commission had the authority to grant amnesty to those who fully confessed their crimes, while funding and acknowledgment were provided to victims willing to forgive.
He notes that the South African Constitution does not include a clause for blanket state immunity, allowing their TRC to operate without interference from state protection measures. Kotobalavu argues that maintaining the current state immunity provisions in Fiji’s Constitution undermines its legitimacy and fails to address the injustices faced by victims of human rights violations. He calls for the removal of these provisions in the upcoming constitutional review, advocating for a just approach that holds the state accountable for reparations to victims.