Jioji Kotobalavu, a former permanent secretary and current lecturer in public law at the University of Fiji, has called for a review and amendment of the 2013 Constitution before any actions are taken regarding the Fiji Truth and Reconciliation Commission (TRC). He emphasizes the importance of addressing the State immunity provisions laid out in Chapter 10 of the Constitution.
Kotobalavu warns that the existing blanket immunity for public officials, which applies to actions taken from December 2006 until the first sitting of the newly elected Parliament, could negatively impact the TRC’s function. He argues this immunity would hinder the TRC’s ability to effectively address significant human rights violations.
He explains that without the necessary amendments, the TRC’s mandate could be compromised, obstructing justice and accountability for past abuses, and ultimately affecting the TRC’s potential for achieving genuine reconciliation. Kotobalavu draws parallels with South Africa’s TRC, which did not grant such immunity and was able to promote accountability and healing for victims of past injustices.
Despite strong support for the TRC from political leaders such as Prime Minister Sitiveni Rabuka and others, Kotobalavu advocates for a careful approach before proceeding.
A steering committee is currently engaging in public consultations regarding the establishment of the Fiji Truth and Reconciliation Commission. Kotobalavu emphasizes the need for the TRC to begin only after the Constitution has been amended, particularly pointing out serious concerns about the immunity provisions that could undermine the commission’s success.
He stresses that South Africa’s TRC served as a valuable model, demonstrating the importance of not extending blanket immunity to those who have committed serious human rights violations. The South African approach allowed for mutual reconciliation through truth-telling and offered reparations to victims whose experiences were acknowledged publicly by leaders, including former President Nelson Mandela.
Kotobalavu insists that the provisions of Chapter 10 must be removed during the Constitution’s review, as their existence casts doubt on the Constitution’s legitimacy and fails to adequately address the needs of victims of human rights violations. The responsibility for reparations must lie with the state, especially when state agents are often the offenders.