Jioji Kotobalavu, a former civil service permanent secretary and current public law lecturer at the University of Fiji, insists that the 2013 Constitution must be reviewed and amended before any work begins on the Fiji Truth and Reconciliation Commission (TRC). He emphasizes the importance of revisiting the ‘State of Immunity’ provisions outlined in Chapter 10 of the Constitution.
Kotobalavu cautions that the existing blanket immunity granted to public officials—protecting their actions from December 2006 until the first session of the newly elected Parliament—will significantly undermine the TRC’s effectiveness. He argues that this immunity hinders the Commission’s ability to address critical human rights violations adequately.
He points out that without changes to these immunity provisions, the TRC’s mandate and its potential for achieving meaningful reconciliation will be compromised. He believes that the current provisions create a barrier to justice and prevent accountability for past abuses, which ultimately detracts from the TRC’s goals. He advocates for a reflective approach, drawing parallels to South Africa’s successful TRC that operated without such immunity, claiming that the current provisions in Fiji’s Constitution are unjust and deny victims the justice they deserve.
Although the TRC has received support from leaders including Prime Minister Sitiveni Rabuka and Mahendra Chaudhry, Kotobalavu maintains that careful consideration is necessary before moving forward.
A steering committee is presently conducting public consultations regarding the proposed TRC. In his opinion, Kotobalavu strongly recommends that the TRC should only begin its work after the 2013 Constitution has been thoroughly reviewed and amended, particularly its immunity provisions, as they could severely limit the TRC’s effectiveness and success in fulfilling its mandate.
He argues that the broad immunity currently in place does not serve justice and unfairly shields state agents from accountability, ultimately undermining the legitimacy of the Constitution itself. He suggests that a separate framework for providing amnesty should be established to ensure justice for victims of gross human rights violations.