Jioji Kotobalavu, a former civil service permanent secretary and current public law lecturer at the University of Fiji, argues that any work on the Fiji Truth and Reconciliation Commission (TRC) should only commence after a review and amendment of the 2013 Constitution. He emphasizes the importance of revising Chapter 10, which addresses ‘State of Immunity’ provisions.
Kotobalavu warns that the existing blanket immunity granted to public officials for actions taken between December 2006 and the first session of Parliament could undermine the TRC’s effectiveness. He believes this immunity obstructs the TRC from adequately addressing important human rights violations.
He points out that without changes to these provisions, the TRC’s mandate could be compromised. According to Kotobalavu, the immunity in place will obstruct justice and prevent accountability for past abuses, ultimately hindering the TRC’s ability to foster genuine reconciliation. He draws parallels to South Africa’s TRC, which successfully operated without similar immunity provisions, arguing that Fiji’s constitutional framework is unjust and denies victims of human rights violations the justice they seek.
Despite strong support from figures such as Prime Minister Sitiveni Rabuka and politicians Mahendra Chaudhry and Savenaca Narube for the TRC, Kotobalavu insists on a careful approach. Public consultations for the proposed TRC are currently being held by a steering committee.
He stresses the need for the TRC to start its operations only after the 2013 Constitution is revised and amended. The existing provisions grant absolute immunity to public officers, which includes immunity from criminal prosecution and civil liability for their actions from December 2006 until the first parliamentary session after the Constitution’s adoption. Furthermore, they prevent any court or tribunal from contesting this immunity and deny victims compensation for actions covered by this immunity.
Kotobalavu advocates learning from South Africa’s TRC, established to address gross human rights violations during apartheid, allowing both victims and perpetrators to engage in discussions aimed at reconciliation. He highlights that South Africa did not grant blanket immunity, allowing its TRC to operate effectively.
Finally, he asserts that the provisions in Chapter 10 of Fiji’s Constitution must be amended in order to uphold its legitimacy and deliver justice to victims of human rights abuses. Such amendments would ensure that reparations are made to victims, particularly as many abuses were committed by agents of the state.