PART ONE
Fiji and South Africa’s quest to bury the past
The Truth Commission and the Reconciliation and Unity Bill
The Prime Minister and Minister for National Reconciliation & Unity, Mr Laisenia Qarase, issued a statement at the second reading of the Promotion of Reconciliation, Tolerance and Unity Bill No 10 2005 (PRTUB) noting that around 20 countries have chosen to establish Truth Commissions as a means of dealing with human rights violations. These include Chile, Argentina, South Africa, Guatemala, El Salvador, Uganda, Sierra Leone, Chad, Haiti, Nigeria, Brazil, Honduras, and East Timor. Some of the Commissions were created by international organizations like the United Nations.
Significantly, what he failed to mention in his statement was that all these countries had emerged from years of bloody civil wars, violent ethnic conflicts, and prolonged periods of dictatorships or in the case of South Africa, enforced apartheid by the White minority, in the name of racial superiority, over the Black majority. In Fiji’s case, indigenous rights claims were used by Sitiveni Rabuka (1987) and George Speight (2000) to overthrow duly elected Fiji Labour Party led coalition governments, when the election results did not go the ‘Fijian Way’, elections in which they had fully participated in the name of democracy.
Several international and South African scholars have widely examined and commented on the Truth and Reconciliation Commissions, and the question of Amnesty to which our Prime Minister referred to in his statement on the Bill. In the course of my analysis, I will draw upon their studies. Firstly, an examination of the contents of the PRTUB makes it evidently clear that the Qarase government has opted for the South African model of Truth and Reconciliation Commission (TRC). In fact, the PRTU Bill is itself mostly extracted from a similar legislation in South Africa. We will therefore turn to that country for comparison.
On 29 October 1998, one of South Africa’s leading anti-apartheid campaigners, Archbishop Desmond Tutu, presented the final report on the TRC to President Nelson Mandela, who had spent 27 years behind bars for his struggle against institutionalised racism or apartheid in his country, which had given the White minority all other kinds of power and privilege. The turning point, as Bishop Tutu poignantly recalled, came on 27 April 1994, when we could ‘vote for the first time in a democratic elections in the land of our birth’. He had to wait until he was sixty-two years old before he could vote, and Mandela until he was seventy-six. On 9 May 1994 Mandela was duly elected president of the new South Africa, and his African National Congress (ANC) went into Government of National Unity with F.W. de Klerk’s National Party (NP), the former apartheid rulers. In fact, DeKlerk became one of two deputy presidents, the other, was Thabo Mbeki, the current President. Archbishop Tutu had the honour of introducing the three leaders to the South African people and the world.
Naturally, his synod of bishops unanimously nominated him to President Mandela for membership of the TRC. He was one of about 45 who made the shortlist from an original list of approximately 300 nominations. They were interviewed by a multi-party panel in public hearings held in several centres of South Africa. The panel sent 25 names to the President who, in consultation with the Cabinet of his Government of National Unity (GNU), chose 17 people to the new TRC. Bishop Tutu was appointed Chairperson, with Dr Alex Boraine as the Deputy Chair. Boraine was the Director of Justice in Transition, and was to become a central facilitator of discussion around the establishment of the TRC.
The NGO’s and South Africa’s TRC
The incentive for the TRC was the product of party-political concerns and negotiations between the NP and the ANC. However, two specific political events gave birth to the TRC, namely the Motsuenyane Report and the post-amble (preamble) to the South African Constitution. The Motsuenyane Report was commissioned by the ANC to investigate its own human rights abuses within the ANC detention camps during the apartheid era. It was a South African Indian member of the ANC, Professor Kader Asmal, who suggested in his inaugural lecture as Professor of Human Rights Law at the University of the Western Cape, that South Africa should look not to have Nuremberg trials but a Truth and Reconciliation Commission. However, the crucial factors in the establishment of the TRC were the debates and finalisation of the Interim Constitution. The most contentious issue was the question of amnesty, since the NP was not prepared to endorse the Interim Constitution unless the amnesty provision was written into it. The NP wanted to protect itself from past abuses. In any case, the ANC had no choice but to accede to the request, since it had been granted temporary indemnity to enter negotiation talks on the future of South Africa.
It was during these early stages of the discussions that Borainne from the Justice in Transition emerged as a key figure in the talks. He soon established a working relationship with another anti-apartheid South African Indian lawyer and Mandela’s new Minister of Justice, Dullah Omar, who would later famously call South Africans ‘a nation of victims’, and perhaps more importantly, of survivors. Since the ANC were in a GNU with NP at the time of the drafting of the TRC legislation, Omar conveniently encouraged civil society organs to pursue the conceptualisation and drafting of the TRC. A member of the South African Justice Department noted: ‘Dullah Omar felt that the drafting process should be outside the official justice structures. He did not want take the issue to Cabinet until he had straightened on the sticking points and built sufficient public momentum to carry out the process. He thus wanted to assist civil society in pushing the idea of the TRC.’ Omar channelled funds from overseas donors to Justice in Transition, instead of his own Department of Justice, to draft the legislation. It is also likely that his legal department lacked the sufficient expertise.
According to researchers of the Transition and Reconciliation Unit (Project on Truth Commissions) at the Centre for the Study of Violence and Reconciliation, Johannesburg, while not overtly manipulating the process unfolding in civil society, Omar was kept abreast of developments. He facilitated the establishment of an informal committee to work on drafting the legislation. The committee expanded and contracted out various tasks, drawing on individuals from a range of backgrounds. Input on the underlying principles that shaped these drafts came largely from conferences and workshops held by Justice in Transition. These were forums where selected NGOs were formally invited to make input into the policy process. A wide range of political and civil society organisations were involved in these discussions. Twenty-six organisations were on the invitation list compiled by Justice in Transition. National Party, military and police representatives declined invitations to participate in the workshops. The final draft of the act that established the TRC was then presented to Cabinet and it was approved to go before Parliament. The Justice Portfolio Committees in Parliament and the Senate then engaged in another round of public input and discussion. Parties covering the whole political spectrum made substantial submissions at these hearings. Public interest at the time of the hearings also led to some media coverage and public debate about the policy issues raised by the legislation. But, as the researchers have pointed out, despite attempts to make the process as objective as possible, political negotiations and political ‘horse-trading did play a central role in shaping the final legislation.
Meanwhile, other NGO’s, once the draft legislation was made public, also contributed to the shaping of the Act. While supportive of the setting up of the TCR, they criticised certain aspects of the draft bill. They criticised the provision for closed-door hearings of the amnesty committee, which they found as anathema to the goals of truth and reconciliation. The NGOs were also successful in persuading Omar on the selection of TRC Commissioners. While the legislation provided for the Commissioners to be appointed by the State President, the selection process had not been stipulated. The NGO coalition drafted a selection process, later approved by Omar, which required that the Commissioners selected should be individuals who had strong commitment to human rights, and people who were not seen as connected to political parties in a high-profile capacity. Nominations for Commissioners were open to the public and as noted above, 299 names were submitted. The vast majority of these came from NGOs. In this process NGO networks were active in nominating and motivating for candidates.
The TCR: Product of Negotiated Settlement
President Nelson Mandela established the TRC in the Government Gazette of 15 December 1995. The constitutional underpinning lay in South Africa’s 1993 Interim Constitution, which provided for the notion of a TRC. The Parliament enacted the Promotion of National Unity and Reconciliation Act (No.34 of 1995). Another South African Indian, the Chief Justice Ismail Mohomed, when delivering judgment in a constitutional challenge to the amnesty provisions in the TRC, was compelled to remind the nation: “For a successfully negotiated transition, the terms of the transition required not only the agreement of those victimised by abuse but also those threatened by the transition to a ‘democratic society based on freedom and equality’ [from the Constitution]. If the Constitution kept alive the prospect of continuous retaliation and revenge, the agreement of those threatened by its implementation might never have been forthcoming”.
Again, to quote Dullah Omar, who at the opening ceremony for the handing over of the main report of the TRC to President Mandela on 29 October 1998, observed: “The Truth and Reconciliation Commission is a product of South African conditions and arose out of the nature of South Africa’s transition from apartheid domination to constitutional democracy. The framework of the TRC, its structures and procedures were conceived by legislation passed by parliament and promoted by the Government of President Mandela. The Truth and Reconciliation Commission concept was not taken out of any textbook or theory. The origin, dynamics and ethos which gave rise to the establishment of the TRC was not only the law which gave birth, but the negotiation process designed to end the war in South Africa, to bring an end to over 300 years of colonialism and apartheid and also negotiations designed to usher in a period of democracy, human rights and the rule of law.”
Those negotiations, Omar observed, ultimately led to the adoption of the Interim Constitution, which came into operation in 1994. Separating South Africa’s apartheid past and the new era of constitutional democracy was the holding of South Africa’s first ever-democratic elections at the end of April 1994. The Interim Constitution, Omar noted, contained a post-amble (preamble) which reads as follows: “This Constitution provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex. The pursuit of National Unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society.’ The 1995 Act, therefore, charged the TRC to examine human rights abuses from March 1960 (the Sharpeville Massacre) to 10 May 1994, the day South Africa celebrated Nelson Mandela’s inauguration as President.
Fiji: A Mumble-Jumble Preamble
The Qarase Government, in emulating the South African precedent, has however elevated indigenous rights above the rights of all other non- Fijian citizens. The Preamble to the PRTU 2005, states as follows (4,5): “AND WHEREAS the political events of 1987 and 2000 were occasioned by a widespread belief among the indigenous Fijians that the 1970 and 1997 Constitutions were inadequate effectively to protect and preserve their rights and interests, their values, traditions, customs, way of life and economic well-being; AND WHEREAS the people of the Fiji Islands are desirous of bridging the past of a divided society characterised by political instability founded principally on a legacy of inter-ethnic distrust and fear of the uncertainties, and a future founded on the recognition of its’ adapted principles of human rights, democracy, and peaceful co-existence, BE IT THEREFORE ENCATED by the Parliament of the Fiji Islands”- the PRTU.
It is legitimate to question why the PRTUB has limited the period of examination of the political and civil unrest from 19 May 2000 to 15 March 2001 if, as it asserts in the Preamble, “the political events of 1987 and 2000 were occasioned by a widespread belief among the indigenous Fijians that the 1970 and 1997 Constitutions were inadequate effectively to protect and preserve their rights and interests, their values, traditions, customs, way of life and economic well-being”.
Secondly, it is worth pointing out that it is a gross distortion of history and facts to state in the Preamble that the 1987 and 2000 upheavals were caused because of indigenous Fijian uncertainties. The events were largely caused because a segment of Fijians, masquerading as nationalists, and cheered on by a segment of the Methodist Church, wanted to grab power, wealth, and privilege for themselves or on behalf of others. Moreover, if we are to believe the Fiji Labour Party (FLP), the 2000 coup was executed to shield corrupt businessmen in the country. The fear of the loss of indigenous rights was merely a smokescreen. It may not be out of context to also remind ourselves that in both the ousted Coalition governments, ethnic Fijians held the vast majority of Cabinet portfolios, men and women of chiefly ranks, as well as commoners (in 1987 Dr Timoci Bavadra was Prime Minister, and in 1999 his wife was one of two Deputy Prime Ministers, the other was Dr Tupeni Baba. Adi Koila Nailatikau was the ousted Prime Minister Mahendra Chaudhry’s Minister for Tourism, and daughter of one of Fiji’s paramount chief, the late Ratu Sir Kamisese Mara; the list of Fijian Coalition Cabinet ministers is long and well-known to the drafters of the Preamble).
South Africa and Fiji: Parting of Ways
Significantly, the South African model does not have any distinguishing parallels to Fiji. The South African legislation was a consequential legislation to meet specific requirements of the South African Constitution, which stated that in pursuit of national unity, the South African citizen required peace and reconciliation for the reconstruction of the society. In furtherance of the above purpose, the South African Constitution stated that there was need for understanding, not vengeance, and a need for reparation and not retaliation, and in further pursuit of the above objectives, amnesty was to be granted in respect of acts or omissions connected with political objectives in the course of conflicts of the past.
It is immediately apparent, as the FLP has pointed out, that the South African model was established as a result of negotiations between all the peoples of South Africa. There was a genuine resolve to attain peace and reconciliation. The South African negotiations were also basically conducted between the ruling white National Party and the predominantly black African National Congress because both were guilty of gross human rights violations in the apartheid era.
The PRTU in Fiji, on the other hand, has had a very different and controversial origin. The Qarase government has imposed the legislation unilaterally. There had been no meaningful consultations with the people directly affected by the events of George Speight’s 2000 coup. There had been no consultation with the victims or their political representatives on the proposed legislation. The legislation had been sprung on the country without any proper notice of the contents of the Bill. The requirement for gazettal of the Bill prior to the meeting of the House of Representatives had not been followed. The Government had also effectively sidelined the Great Council of Chiefs (Bose Levu Vakaturaga) from any useful role in the discussion of the Unity Bill, which it argues is based on the Fijian customary practices. The NGO’s in Fiji were not even consulted.
The appropriation of the South African model is highly questionable and contentious in the Fiji context. One scholar, James L. Gibson, has noted how, during the transition from apartheid to democracy, the former liberation movement, ANC, made a Faustian bargain in order to secure majority rule in South Africa. The ANC traded amnesty for peace; the leaders of the apartheid government accepted freedom from prosecution for human rights abuses in exchange for power sharing. The bargain succeeded-the ANC acquired power, under Nelson Mandela’s leadership, through peaceful and legitimate elections, and few if any white South Africans have been punished for the misdeeds of the apartheid system.
In Fiji’s case, the reverse is happening. The Prime Minister and his Conservative Alliance Matanitu (CAM) coalition seem to want only restorative justice and amnesty for the perpetrators of the 2000 coup, without willing to share power with non-Fijians. Mr Qarase continues to insist that Fijians must have political control of the country. His coalition partner CAM believes that in order to maintain stability in Fiji, the position of the Prime Minister should be held by an ethnic Fijian. One may ask whether such contradictory and racist statements reflect a genuine desire on the part of the Government for the establishment of a Reconciliation Commission. Significantly, the Deputy Speaker, Manasa Tuqia, of CAM, is also the chairman of the Justice, Law and Order Sector Committee. Ironically, CAM is feverishly advocating the racist and exclusive agenda, ‘Fiji for the Fijians’. We cannot have it both ways.
One of the central issues in the talks over ending apartheid in South Africa was amnesty. As already noted, the creation of the TRC, with the power to grant amnesty, was the price the liberation forces had to pay in order to secure a peaceful transition to majority rule. The South African Parliament granted the TRC the authority to give amnesty to acts motivated by political objectives. Finally, in the context of Fiji, it is most likely that CAM, most of whose members have been directly implicated in Speight’s coup, and some are serving prison sentences for their roles, will be the greatest beneficiary of amnesty in the PRTUB.
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Part Two
Amnesty Breaches Constitution of Fiji
The amnesty provisions in South Africa’s TRC Act No 34 of 1995
The PRTUB 2005 establishes the highly controversial Amnesty Committee that stipulates, among other things, that (1) in dealing with applications for amnesty, the Commission shall give priority to applications from persons in custody; (2) If the act or omission which is the subject of an application for amnesty constitutes the ground of a claim in any pending civil proceedings, the court before whom the civil claim is pending may, at the request of the Commission, suspend those civil proceedings pending the consideration and disposal of the anticipation for amnesty, if the court is satisfied that the other party to the civil action has been notified; (3) If an applicant for amnesty is charged with any offence constituted by the act or omission to which the application relates, or is standing trial upon a charge of having committed such an offence, the Commission may request the court to postpone the criminal proceedings pending the consideration and disposal of the application for amnesty; (4) No person who has been granted amnesty in respect of an act or omission shall be criminally or civilly liable in respect of such act or omission and no body, group or organisation or the State shall be liable either directly or vicariously for any such act or omission; (5) Any person who has been granted amnesty in respect of an act or omission in respect of which the person has been convicted and is serving a term of imprisonment shall be released from prison forthwith on a warrant issued by the President; (6) an amnesty granted by the President shall have the effect of erasing the conviction; and (7) the grant of an amnesty by the President shall be a legal bar to any other prosecution based on the same facts upon which the amnesty was determined and granted.
Predictably, most people in Fiji have scathingly condemned the above provisions in the Bill, and many have taken offence to the fact that it violates the rights of the victims by rewarding coup makers with amnesty. But why is the Government determined to impose the Bill on us, with the Prime Minister insisting that the amnesty provision will remain in the PRTUB because it is one of the main components of the proposed legislation. The answer may be found in the South African precedent. The Government and its advisers mistakenly believe that they can legally defend the Bill in a court of law, and also win over international support: if South Africa’s Amnesty Committee got away with releasing murderers, bombers, and torturers, why not us? The clue for our assertion is based on Mr Qarase’s citation of the decision of the South African Constitutional Court judgement in the controversial Azanian Peoples Organisation (AZAPO) and Others versus the President of the Republic of South Africa and Others case. The Court had struck down a legal challenge against the TRC’s Amnesty Committee. It held that the TRC Act was constitutional, and that the epilogue of the Transitional Constitution of 1993 very clearly provided for national reconciliation and the TRC Act was a legislative response to this constitutional imperative.
Some commentators have suggested that the controversial provision in Section 21 (Subsection 3) on Amnesty takes its queue from the amnesty granted to the perpetrators of the 1987 coups. It may be partially true. The controversial provisions have, in fact, been directly lifted out of South Africa’s The Promotion of National Unity and Reconciliation Act No 34 of 1995 (hereafter the TRC Act), where the Amnesty Committee effectively traded amnesty for ‘truth’. For comparison of the two Bills, see box: ‘The Promotion of National Unity and Reconciliation Act No 34 of 1995 (South Africa) and ‘The Promotion of Reconciliation, Tolerance and Unity Act 2005 (Fiji). Section 20(7), read with other sections of the TRC Act, permitted the Committee on Amnesty in South Africa to grant amnesty to a perpetrator of an unlawful act associated with a political objective and committed prior to 6 December 1993. As a result of the grant of amnesty, the perpetrator could not be criminally or civilly liable in respect of that act. Equally, the state or any other body, organisation or person that would ordinarily have been vicariously liable for such act, could not be liable. The TRC was also tasked with granting amnesty to persons who would make a full disclosure of all facts relating to gross violation of human rights, which were associated with a political objective. Moreover, as provided for in the TRC Act, priority had to be given to those applications that were in prison. It is clear that the Qarase Government, especially CAM, saw the South African amnesty model as politically attractive, and applicable, without pausing to consider whether the amnesty provision in the PRTUB is in gross breach of our Constitution
The Amnesty Committee in South Africa
The Amnesty Committee initially consisted of only five members, two of whom had to be Commissioners. President Mandela appointed two judges as chairperson and vice-chairperson respectively and another judge as the third member. After consultation with the TRC, the President appointed two more Commissioners. All members were legally qualified, being judges of the South African High Court, advocates and attorneys (these advocates and attorneys with practical experience led the evidence and legally qualified people without practical experience analysed the evidence – (note our Attorney-General Qoriniasi Bale says there is no need for lawyers on the Reconciliation and Unity Commission (RUC) because lawyers may cloud issues). The South African Amnesty Committee had a peculiar position in the TRC: judges who were not Commissioners but were appointed directly by the President headed it, and it was autonomous in its decision-making powers. Neither Bishop Tutu, as chairman of the TRC nor any Commissioner outside the Committee, had any influence over its decisions to grant or refuse amnesty; the TRC was statutorily prohibited from review of the Amnesty Committee’s decisions. Curiously, in the context of Fiji, why the Amnesty Committee is not empowered to grant or refuse amnesty? Why there are no lawyers on it? The personnel of the Amnesty Committee are to be appointed with the approval of the Minister: which Minister? In the South African context the Minister meant ‘the Minister for Justice’.
Legal Challenge to South Africa’s Amnesty
As already noted, the TRC Act provided for three principal committees, i.e. the Committee on Human Rights Violations, the Committee on Reparation and Rehabilitation, and the Committee on Amnesty. The ‘postamble’ constituted an integral part of the Interim Constitution, which read as follows: “In order to advance such reconciliation and reconstruction, amnesty (my emphasis) shall be granted in respect of acts, omissions and offences associated with political objectives committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 October 1990 and before December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed. With this Constitution and these commitments we, the people of South Africa, open a new chapter in the history of our country.” The Constitutional Court confirmed this in its judgement in the controversial Azanian Peoples Organisation (AZAPO) and Others versus the President of the Republic of South Africa and Others case. The Court gave very clear endorsement to the provisions in the TRC Act relating to the barring of victims from instituting civil action or undertaking private prosecution. The judgement strongly endorsed amnesty and reconciliation.
Consequently, Prime Minister Qarase embraced the AZAPO judgment without examining its applicability in Fiji. It is interesting to note that Mr Qarase, in his statement on the Bill, reminded Parliament, as well as the anti-amnesty campaigners, of the above constitutional case. He observed that the Court handed down a ruling in AZAPO that had direct relevance to the amnesty provision of the TRC Bill. The South African court held firstly that amnesty for criminal liability was permitted because without it, there would be no incentive for offenders to disclose the truth about the past atrocities; secondly, it ruled the truth might unfold with such an amnesty, assisting in the process of reconciliation and reconstruction; thirdly, such an amnesty was a crucial component of a negotiated settlement; fourthly, amnesty provisions are not inconsistent with international norms and did not breach any of the country’s international obligations.
Amnesty Breaches Fiji Constitution
It must be pointed out that there is no amnesty provision in the Constitution of Fiji, and therefore, the AZAPO precedent is not applicable in our case, despite Prime Minister’s claim to the contrary. The question of amnesty is left to the Prerogative of Mercy Commission in the Fiji Constitution. The judgment of the court in AZAPO was a fundamentally important historical document, which said much about the politics of the transitional period in South Africa’s history. After all, the amnesty provision was agreed between the white and black political leaders (their supporters on both sides had committed gross atrocities – one to hold on to power, and the other to dislodge apartheid) who were in Government of National Unity, awaiting transition to majority rule. This overtly political case, as a leading South African constitutionalist John Dugard has noted, was very specific and so has limited precedential value, with the exception of its controversial treatment of public international law. In the end, following the AZAPO case, many perpetrators of apartheid, and its opponents, were either granted or refused amnesty by the TRC’s Amnesty Committee. Amnesties were granted for murder, manslaughter, bombings, political assassinations, and other politically motivated crimes. These amnesties were only possible because it was one contained in the preamble to the Interim constitution. It was a political trade-off.
A general review of amnesty provisions in South Africa, Chile, Argentina, and other countries that the Prime Minister invoked to push for the Reconciliation and Unity Bill does not apply to Fiji. These countries were transitional states that had just emerged from years of bloody civil conflicts. We have been independent since 1970. The SDL-CAM government came to power in peaceful and democratically free and fair elections in 2001. In 2000, according to the Constitutional Citizens Forum (CCF), it sought the advice of current South African Chief Justice, Pius Langa, then Commonwealth Envoy to Fiji, on the idea of a Truth and Reconciliation Commission in Fiji. He told the CCF that the TRC was appropriate for South Africa but not for dealing with coup related offences in Fiji. Justice Langa said all that is needed here is an independent Judiciary and effective investigation and prosecution by the police and DPP to enforce the rule of law. The PRTUB breaches our Constitution and International Law:
· The preamble of PRTUB is inconsistent with the Preamble and Compact of the 1997 Constitution.
· The amnesty available to only selective persons violates Section 38 (1) of the Constitution, which guarantees equality before the law.
· The objects of the Bill and the Functions of the Reconciliation and Unity Commission (RUC) are inconsistent, and hence violate the basic principles of statutory drafting.
· Section 118 of the Constitution insulates the judiciary from interference but Section 21 (5) of the PRTUB interferes with the independence and functioning of the Fiji judiciary.
· The PRTUB is in conflict with the Human Rights Act (HRA) of 1999, which has powers to investigate human rights violations committed, condoned or ignored by the State or its officials. The Bill effectively extends the jurisdiction of the RUC to acts committed by non-state actors and is, therefore, at odds with the HRC Act of 1999.
· Section 21 (1) (g) on appointment to the National Council on Promotion of Reconciliation, Tolerance and Unity (The Council) is inconsistent with other provisions on appointment in Section 23 of the PRTUB. The inclusion and simultaneous exclusion of members of the same religious beliefs, who are not members of an umbrella religious organisation, constitutes unfair discrimination on the grounds of religious belief – this religious right is enshrined in Section 35 and 38 of the Constitution.
· The PRTUB, in establishing the stated commission, has failed to adhere to three basic and important principles as required by international law, namely: (i) consultation with victims at all stages; (ii) acknowledgement that the conflict to be resolved was engaged by all sides in the conflict and human rights violations were committed by opposing sides equally; (iii) there is a separation of powers between the investigations and amnesty powers and functions of the communities established by the commission.
· The PRTUB does not contain UN requirements for establishing reconciliation and truth commissions; neither does it adhere to the Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of Human Rights. Since the establishment of truth is the primary objective of such commissions, the UN General Assembly resolution requires (i) guarantees of independence and impartiality (ii) not a replacement for civil, administrative or criminal courts (iii) rights of persons implicated are guaranteed (iv) rights and security of victims and witnesses guaranteed (v) transparency in functions and operations (vi) report to be made public and (vii) not to consider amnesty unless justice to victims has been delivered. The PRTUB fails to meet these UN requirements.
· The PRTUB conflicts with the mandatory compliance of proposed legislation with the Bill of Rights in the Constitution and international human rights law.
· The Bill is in conflict with the Prerogative of Mercy Commission in the Constitution, which has the sole power to grant amnesty.
· The Azanian Peoples Organisation (AZAPO) and Others versus the President of the Republic of South Africa and Others case is inapplicable in Fiji because amnesty was specifically written into the 1993 Interim Constitution of South Africa as a political trade-off to usher in democracy, human rights and the rule of law after 300 years of apartheid, which imposed White racial supremacy over no-Whites in South Africa.
Significantly, the Preamble to the Promotion of Reconciliation, Tolerance and Unity Bill (PRTUB) 2005, not only breaches our Constitution but is also a recipe for old-style South Africa in Fiji, for it states as follows: ‘AND WHEREAS the political events of 1987 and 2000 were occasioned by a widespread belief among the indigenous Fijians that the 1970 and 1997 Constitutions were inadequate effectively to protect and preserve their rights and interests, their values, traditions, customs, way of life and economic well-being; BE IT THEREFORE ENCATED by the Parliament of the Fiji Islands’ the PRTU.
In other words, non-Fijians are told to become VICTIMS, twice over, in the name of unity and reconciliation, the granting of amnesty, and the demand for the supremacy of indigenous rights.
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PART THREE
The Coup Victims and Reconciliation
Prime Minister must choose between Archbishops Mataca and Tutu .
At the heart of PRTUB is the imaginary journey to reach the bottom of the TRUTH about the 2000 crisis. And once that elusive truth has been found, so we are assured, we can live in eternal peace and harmony, and there will be no more coups.
But where do we begin the journey in search of truth? In presenting the Bill, the Prime Minister Laisenia Qarase, while taking a swipe at the critics of the PRTUB, told the nation on 2 June 2005: ‘We are fortunate to be living in a society where people are free to express themselves, even when they mislead. They would more effectively serve the public interest if they were better informed. Some of them should know better. I suppose when people get excited and carried away, and hop onto a bandwagon, they are inclined to say all sorts of things that don’t stand up to close scrutiny.’ He felt that restorative justice, which seeks to reconcile the victims and the offenders, and their families, was the way forward to ‘heal the nation’s wounds’.
While defending the concept of amnesty in the Bill, he turned to Archbishop Desmond Tutu for biblical, moral, and political support: ‘Archbishop Desmond Tutu, who was chairperson of South Africa’s Truth and Reconciliation Commission [TRC], is a great proponent of restorative justice. It was this principle which guided the historic work of the Commission as it helped South Africa come to terms with its past. Some people at the time were critical of what was proposed and in particular, argued that the amnesty provisions would encourage crime. But it was pointed out that this showed limited appreciation of the procedure. There were restrictions on what cases qualified for consideration of amnesty. Furthermore, it was a temporary aid applied to a difficult situation. We identify very much with these comments, and also with Archbishop Tutu’s statement that his country had to balance the requirements of justice, stability, peace and reconciliation. The same can be said of Fiji. It is time for us now to bring a greater degree of close to a tragic period of our history.’
But Fiji’s own Roman Catholic Archbishop Petero Mataca wants the PRTUB withdrawn. According to Archbishop Mataca, when he met the Prime Minister on 2 May, the Bill was presented in a very positive light, and there was no mention of the highly objectionable amnesty provisions in it. A statement from the Prime Minister’s office said that in convening the meeting with the churches, all the Prime Minister wanted to do was to inform the church leaders in advance of the Government’s intention to come forward with this proposed initiative. It was always Government’s intention from the outset that everyone would be given the opportunity to express his or her views on the proposed legislation. Others are not convinced. The National Party president Ratu Epeli Ganilau said the revelation that Mr Qarase did not give a copy of the Bill to the church leaders was a ‘monumental deception’ on the part of the Prime Minister.
Now, the Archbishop has seen the contentious Bill, he wants it to be withdrawn because it will not bring out genuine reconciliation. He believes that true reconciliation can only come out with truth telling. In South Africa, the issue of truth, and whose truth, emerged in debates that took place before and during the life of the TRC, resulting in four notions of truth: factual or forensic truth; personal or narrative truth; social or ‘dialogue’ truth and healing and restorative truth.
Even before the Unity Bill has passed the Parliamentary Sector Committee, truth has become the first casualty. Significantly, before the Bill goes any further, we want to know from the Prime Minister who is correct about the way forward for us: is it our own highly respected Archbishop Petero Mataca, who has called on the Government to withdraw the Bill or South Africa’s Archbishop Desmond Tutu, whom many critics accuse of turning the TRC into a ‘Kleenex Commission’, where victims cried in public hearings while unburdening their grief, and their perpetrators, who implicated themselves, quietly walked away from justice under the amnesty provision in the TRC Act.
Let us now turn to the question of victims.
What happened to South African Victims?
In Fiji’s PRTU, a victim means a person who, individually or as part of a group, has suffered physical or mental harm, including emotional suffering, or economic loss as a result of acts, omissions of offences committed for some political purpose or objective by persons or groups from 19 May 2000 to 15 march 2001.
In Volume Seven (2002) of the Report, South Africa’s TRC observed that the Commission would not have happened without the victims. Their willingness to honour the agreements that brought the Commission into being, allowed the foundations to be laid for a new society. Furthermore, their willingness to participate in the process enabled the Commission to carry out its task of establishing as complete a picture of the horrors of our past. The Commission therefore dedicated the volume to the victims of apartheid. Who are the victims? The TRC noted that many people came forward to tell their suffering during the period of repression and resistance. Some had been active participants in organised resistance; some had been identified as agents of the Apartheid state; others had been innocent, even ignorant, victims caught up in the wrong place at the wrong time.
The Commission received statements from 21,290 people, of whom more than 19,050 were found to be victims of a gross violation of human rights. In addition, more than 2,975 victims emerged from the amnesty process. It regretted that in a number of cases, applicants were found not to have been a victim. This did not mean that their stories were untrue or that they did not endure suffering. Rather in these cases the Commission was unable to make a finding because so little corroborative information was available. In a small number of cases, victims’ statements were turned down because the matter fell outside the mandate period, or because the matter could not be proved to be politically motivated.
Given the enormous number of statements, it had not been possible for TRC in the time available either to investigate every case, or to write in detail to each deponent. In all too many cases, no further information was found because documentation was either incomplete or had been destroyed.
Many victims came forward to tell the story on behalf of loved ones, hoping that the Commission would be able to establish what happened to them. In some cases, this was possible; in others the Commission was unsuccessful. Many of the victims asked for nothing more than information about who was responsible for what they had suffered. The TRC was able to furnish those answers in only a few cases that had been well covered by the media, or where amnesty applications had been received.
For a number of reasons, many people were not able to access the TRC. Some people learnt too late about the process or the Committee was not able to make contact with them. Others were unable to gain access to a statement-taker. Since the Commission stopped taking statements in December 1997, hundreds of people had come forward to make statements. The TRC, much to the annoyance and irritation of the victims, had to make the painful choice to restrict the list of victims to those who came forward before the cut-off date. That meant that many victims had been left out of the process with no hope for reparation.
There were other reasons why many people did not come forward to tell their stories. Some were afraid; some chose not to participate because they did not support the process, particularly the concept of amnesty. The choice not to make a statement had to be respected by the TRC and as a consequence, many cases that may have been expected to appear in the TCR’s ‘Dictionary of Victims’ in volume seven did not, including those of a number of well-known victims.
Others did not wish to be portrayed as a ‘victim’. Indeed, many said expressly to the TCR that they regarded themselves instead as soldiers who had voluntarily paid the price of their struggle. The TCR resolved to use the terms ‘victim’ and ‘perpetrator’ as they were used in the Act, remaining sensitive to the problems with these terms. Many had expressed reservations about the very notion of a ‘victim’, a term which was felt to denote a certain passivity and helplessness. Some preferred the term ‘survivor’ although this applied to cases where a violation did not result in death. There were also problems with the term ‘perpetrator’ which made no distinction between different motivations and moral contexts, or between a person who committed one violation and those whose careers were based upon perpetrating such violations. In some cases an individual was both a victim and a perpetrator. In a few amnesty cases dealing with deaths and disappearances, the TCR had no other source of verification of the information received and was forced to rely on the information in the amnesty application in order to make a finding or decision.
Controversially, since the TCR took the route of corroborating statements, it was deemed appropriate only to include corroborated violations in these summaries. The TCR found it very difficult to describe acts of torture. In most cases, acts of torture have been abbreviated to state that a person was tortured without necessarily specifying each method such as electric shocks, suspension from a tree, the ‘helicopter’ method (victim is handcuffed behind the back and forced into a crouching position then suspended from a rod thrust under the victim’s knees), attempted suffocation by the ‘tubing’ method (victim has a rubber tube tied around the face), submersion in water and so on. Although rape and other forms of sexual torture were undoubtedly part of the repertoire of torturers, details are generally not included in the volume.
Things you should know about RTU: Government
‘Under the current Retributive System, victims will need a huge amount of money and the service of a lawyer. That is why only the Leader of the Opposition [Mahendra Chaudhry] and his son are seeking compensation in the High Court. It is too expensive for victims [who] do not have funds to pay for services to lawyers. The RTU [Reconciliation and Truth Commission] offers you all services free. All that victims need to do is to fill application form 3 months from when the RTU Bill comes into effect.’ This, and other things that one should know about the RTU, is contained in the Fiji Government’s official website on the controversial Bill entitled ‘Things You Should Know About the Promotion of Reconciliation, Tolerance and Unity (RTU) Bill’. Other things one should know is that: the restorative justice system has been adopted to address the shortfalls and weaknesses of the current retributive justice system; whilst the retributive justice system focuses on the offender and how best to punish him or her, the Restorative justice system focuses on the victim and how best can the victim be restored of the harm and what has been lost; the Retributive justice system is not truth based as it focuses on evidence but the Restorative justice system focuses on the truth; the RTU Bill will give victims of the May 2000 events a chance to be heard. They will apply for compensation and reparation, something the Retributive justice system does not offer; the RTU Bill introduces the Restorative justice system, which is also applied under the popular Family Law Act. It is also similar to traditional justice systems and rules of customs with elements of the rule of law, transparency, accountability, and respect for human rights; the RTU Bill does not replace or sideline the Retributive justice system and makes life possible where the current Justice System [sic]. It makes life possible where the Retributive justice system has not been able to get societies to work together; restorative justice system values and principles are common to traditional community values and principles in the Pacific and also in developed countries; Restorative justice system values and principles encompass the principles of love, forgiveness, forward looking and are compatible with many church doctrines; the RTU Bill is needed to speed up the reconciliation process as under the current justice system the real culprits behind the May 2000 fiasco are not accountable. We need to get to the bottom and move forward; the RTU Bill provides victims an opportunity to speak to those who harm them and share the pain and suffering they went; and RTU Bill offers victims an opportunity to determine the form repayment and compensation and the penalty for the offender. It is better than throwing the offender in prison as nobody gains anything from that.
We do not think that we need to respond in detail. Suffice to say, the Bill in its current form will not bring reconciliation through the restorative justice system. The provisions are highly stacked against the victims, and even the Prime Minister was unaware on whether people who apply for amnesty will have to face their victims to ask for forgiveness. He could not confirm whether the process of the wrongdoers facing the victims will take place. But he did suggest that the public could call for this process to be included in the PRTUB. His own Attorney-General Qoriniasi Bale is vague about who is a victim? Are those locked away on Nukulau Island also victims? Worst, those who suffered at the hands of criminals in the aftermath of the May 2000 coup would not be treated as victims under the PRTUB.
Significantly, restorative justice is already in the Penal Code of Fiji, which says, ‘The courts may take into account any reconciliation that has taken place between the victims’. Moreover, the promoters of the PRTUB are saying that the Unity Bill conforms to Section 186 of the Constitution that deals with customary laws and customary rights. It is worth noting that Section 186 deals with resolution processes within the Fijian and Rotuman customary systems: it is about the rights of fishing, title disputes, etc, etc. It does not say that you can go and beat the hell out of a non-Fijian and Section 186 will protect you. A key principle of restorative justice is that the wrong doer should be held directly accountable to the victim, and yet one cannot find this concept anywhere in the PRTUB.
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Part Four
The Way Forward
Ubuntu and Veisorosorovi in South Africa and Fiji
These days a new phrase has crept into Fijian political discourse – Ubuntu – which is a short form of a widespread isiXhosa proverb in Southern Africa: Umuntu ngumuntu ngabantu, which means ‘A human being is a human being only through its relationship to other human beings’. Ubuntu originally implied a sense of hospitality and the integration of strangers. Some argued that restorative justice was significant in the African context. Tutu ‘Christianised’ Ubuntu into a form of human compassion, but also ethnicised it by proclaiming it to be an African heritage. According to Archbishop Tutu: ‘Ubuntu says I am human only because you are human. If I undermine your humanity I dehumanise myself. You must do what you can to maintain this great harmony, which is perpetually undermined by resentment, anger, and desire for vengeance. That’s why African jurisprudence is restorative rather than retributive.’
But some African scholars have questioned Archbishop Tutu’s use and occasional appeal of ubuntu in the TRC hearings that unconditional forgiveness and cleansing merely on the basis of a verbal admission of guilt is part of the Southern African ancestral cultural heritage. Such a suggestion is misleading, they claim. The perpetrators of atrocities under the apartheid state qualify as sorcerers and might have been treated accordingly. For such treatment a number of more or less draconian precepts are available. This is one major example of how under contemporary conditions ubuntu is pressed into service at the centre of national political affairs, in mystifying ways that deny or pervert time-honoured African values, under the pretence of articulating those very values. In years to come South African society will yet have to pay the price for the massive and manipulative repression of resentment and anger caused by the historically ungrounded use of ubuntu in the context of the TRC.
In Fiji, the Prime Minister also said restorative justice is not new, and that it exists in Fijian culture in the practices of veisorosorovi or matanigasau. However, as many Fijians have themselves pointed out, there are some important elements of Fijian restorative justice that the Prime Minister has failed to mention. Firstly, in Fijian culture, matanigasau, bulubulu or veisorosorovi is only undertaken after there has been prior agreement between the perpetrators and the victims, and especially by the latter, that such a procedure is appropriate. This avoids a unilateral approach by the perpetrating party that could result in rejection, shame and deepening of the injury to the victims. It also means acceptance by the perpetrator that a serious wrong has been committed, which has damaged relations between the individuals, the families and their communities. This will be admitted at the reconciliation ceremony. Forgiveness will be requested from the victims and reparations offered. It is clear therefore that the offender cannot force the offended partly to accept matanigasau. Or as Ratu Epeli Ganilau has pointed out, forgiveness can be refused through the customary practices of diriki ni tabua and vakasukai ni tabua. The victims of the 2000 putsch had not even been consulted over the proposed Unity Bill. In some instances, the victims are also high-profile Fijian chiefs who have been persecuted or have suffered as a result of the actions of fellow chiefs. A chief does not offer matanigasau to a fellow chief. How is the Bill going to reconcile victims and perpetrators, if both happen to be chiefs?
The TRC Report: A Contested Truth
Finally, the TRC had a staff of up to 350, a budget of some $18 US dollars each year for two and a half years (plus additional budget). And yet it is worth pointing out that once in power, however, the ANC, at the end of the TRC process, almost tried to refuse the TRC Report for publication. Its leaders resented having their movement’s human rights violations to be lumped together with those of the violations of the apartheid government. The former President F. W. de Klerk sought legal action to prevent the TRC from publishing its final findings. His litigation resulted in the removal of a section of the report, which had directly implicated him. Chief Buthelezi, his former black political allay, succeeded in his legal challenge and the TRC agreed to publish in its final report a ‘schedule’ of changes and corrections to its findings and ‘a memorandum’ formulated by the Inkatha Party ‘setting out its views concerning the findings with which it disagrees’. The former National Intelligence Service chief, Dr Neil Barnard, has contested virtually every finding in the TRC Report, which had sought to answer a series of questions: What happened? When did it happen? Who did it? Why was it done? The many voices of dissent have even queried the authenticity of the ‘discovered truth’: how does the TRC know if its account is correct or not?
Worst, the victims are still in the lurch, for the ANC-led government only implemented extremely limited Urgent Interim Reparations’. As Father Michael Lapsley, a former member of the TRC, and who has been touted by New Zealand as a possible candidate to help in the reconciliation process here noted, ‘It is a moral tragedy that a process, which was correctly heralded around the world, is in danger of going down in history as a perpetrator friendly exercise’. While perpetrators got instant justice – freedom under amnesty – the victims have become victims, twice over, because the legislation setting the framework for reparations could not be introduced to South African Parliament until 2002. In theory, the South African state had assumed moral responsibility for reparations once a person’s criminal, as well as civil liability was extinguished, on the grant of amnesty.
It is quite conceivable that SDL-CAM Coalition partners have calculated that the South African model could be extremely beneficial to them. By granting amnesty, most of their men would be out of the loop before the 2006 election. If they win the election they can buy time on the question of reparation and reconciliation, or put it on the back burner. If they loose the election, they would still be protected from the planned amnesty, especially if the court grants compensation to Chaudhry and others in regard to the 2000 events. The Devil is not even in the details of the Bill.
The Future: Way Forward
So far the debate has raged, and continues to rage, over victims and perpetrators. It is time we also looked at the beneficiaries. Adi Koila has openly accused the Prime Minister of having benefited, without spelling out how, from the 2000 coup when her father, the late Ratu Sir Kamisese Mara, was removed from office. The Fiji Institute for Research and Education (FIRE), led by Senator Adi Litia Cakobau, Professor Asesela Ravuvu and Mere Samisoni, are again breathing the fires of Fijian nationalism, in support of the Bill. It would be worthwhile, if the Institute turned its fire and examined which Fijians benefited from the 1987 coups, and who were the beneficiaries of the failed 2000 coup.
It is an accepted fact that while ordinary Fijians saw no visible rise in their living standards between 1992 and 1999, Sitiveni Rabuka’s government had created an elite group of Fijian businessmen (and women) who rose through affirmative action programmes based on ‘positive discrimination and favouritism’. It should enquire how a failed businessman like George Speight became chairman of three major Government businesses, Telecom Fiji, Fiji Pine Ltd and Fiji Hardwood. It is like asking Dracula to guard the blood bank. It should enquire how the National Bank lost over $220 million through bad loans and fraud. It is only than that we will begin to find some of the solutions to our country’s problems.
The Methodist Church is another institution that must thoroughly examine its soul and mission in the country. It must speak out, as Nelson Mandela, a committed Methodist, urged his fellow South African Methodists to do so in 1994: ‘The Church, like all other institutions of civil society, must help all South Africans to rise to the challenge of freedom. As South Africans rise to the challenge from resistance to reconstruction and from confrontation to reconciliation, the energy that was once dedicated to breaking apartheid must be harnessed to the task of building the nation. I ask you to continue to play your prophetic role, always seeking to hold the nation and all its leaders to the highest standards of integrity and service.’ True reconciliation will only begin when the Methodist Church leaders take the lead in confessing and exposing their own men of cloth who played, and some continue to play, a divisive role in our multi-racial society. Many provided religious cover to the 1987 coups and have also been implicated in the 2000 coup. It is time they revealed themselves not only to God but to the nation.
Moreover, if the Government wants true reconciliation it must release the ‘Savua Report’ to the general public so that we can know why the citizens of Suva were left to the mercy of criminals who went on the rampage after being incited by the actions of the so-called politically motivated Fijians who seized power allegedly in the name of indigenous rights. If we want reconciliation, will the Government institute a multi-party government as ordered by the Supreme Court of Fiji.
Finally, if the Fijians wants to move forward, with or without non-Fijians, they must stop rewarding men of terror and violence by electing them or their families to Parliament. It beggars belief that a segment of Fijians have become addicted to electing men of violence to represent them, under the guise of indigenous rights.
Significantly, I found FIRE’s leaflet titled ‘Na Dodonu ni Taukei’ (The Rights of Indigenous Fijians) an interesting reading. Herein lies the obstacle to true reconciliation. The Fijians must, as a well-respected Fijian academic, Dr Ropate Qalo, recently noted, choose between globalization and traditionalism. For too long, the Fijians have lived in two worlds, one dead the other powerless to be born (or prevented by some chiefs for its birth). But they must make the Hobson’s choice, as Dr Qalo pointed out, when Ratu Seru Cakobau, with other eastern chiefs, ceded Fiji to Great Britain, it was an acceptance of globalization (wittingly or unwittingly) in 1874. Those who reject that, reject what the chiefs accepted. Dr Qalo urged Fijians to study the life and work of Ratu Sir Lala Sukuna. He went on to state as follows: ‘As such coups are monstrous contradictions and were nonsensical. Perpetrators need to face the full brunt of the law. This is what the Great Council of Chefs stands for theoretically and practically. We are the descendants who need to take the same outlook as our chiefs with courage that is thoughtful and responsible for everyone in this country. Listening to the growing number of matai via kana vuaka (literally carpenters who want to eat pork, and figuratively, in Fijian, meaning those carpenters who pretend to be carpenters so that they could eat pork) masquerading as politicians is disastrous to our home. Effectively what is happening with the ambivalence mentioned earlier is undoing all that we have gained by ill-educated unqualified individuals. Ratu Mara was most disillusioned as recorded in the Video Tape from Tubou. The [Unity] Bill now debated in Parliament is another curse to ethnic Fijians. Its impact will be far worse than the coups. Ratu Sukuna must be turning in his grave.’
Like Ratu Sukuna, I am sure my late father, as a former President of Tailevu North Alliance District Council, must have turned in his graveyard when he learnt that George Speight had won the Tailevu North communal seat as a reward for his treachery, violence and treason. So must have Adi Litia Cakobau’s father, the late Ratu Sir George Cakobau, who had been a relentless co-worker with my family in building up a multi-racial Fiji, and who once represented us from that constituency. The election of men of terror and violence or their relatives to Parliament illustrates a new and dangerous fascination in some quarters of the Fijian society with violent rule. They are willing to resort to the rule of the club, instead of the rule of the book.
More importantly, it is worth pointing out that many Provincial Councils, for example, which have openly endorsed the Bill, have not lived through the terror and violence that was perpetuated by Speight and his cohorts. It would be no great surprise if most of the Provincial Councils support the Bill at the Great Council of Chiefs meeting next month. For many of these people were untouched by the murder, kidnap, rape, vandalism, and naked terrorism of the 2000 uprising.
On the other hand, if what happened in 2000 and afterwards, specially in Tailevu and Labasa, happened because Fijians from these areas, were merely taking the law into their own hands to protect their indigenous rights, than the Government must ask the Provincial Councils of these provinces not only to foot the bill for the damage to State and private properties but also contribute to the reparations fund envisaged in the Bill. Why should the general taxpayers foot the bill on behalf of a violent few who turned the country into a raging hell?
It is my firm conviction that large-scale criminal prosecution is the most juridical option of dealing with the events of 2000. The proposed amnesty will take the Fijians backward and not forward, as Dr Qalo notes, in a globalized world.
The Unity Bill, in its present form must be withdrawn. We must continue to speak out against it, ‘For Evil to prosper all it needs is for good people to do nothing’. The South African Truth and Reconciliation Commission, especially the amnesty provisions, are making the country, notably the victims, angrier by the day. So are many Fijians, who are no longer buying the indigenous rights, amnesty, and political motivation claims in the Bill.
They were also silent victims of George Speight’s violent putsch.
_____________________________________________________________________APPENDIX
The Promotion of National Unity and Reconciliation Act No 34 of 1995 (South Africa) and The Promotion of Reconciliation, Tolerance and Unity Act 2005 (Fiji): A Comparative Perspective
APPLICATION FOR AMNESTY:
SOUTH AFRICA
FIJI
Any person could apply for amnesty on the prescribed form. Institutions and organisations could not apply. Applications could be made in respect of any act or omission that amounted to a delict (a wrongful act for which the injured person has the right to a civil remedy) or offence, provided that it had to have been associated with a political objective and committed in the prescribed period.
The Amnesty Committee was required to give priority to the applications of persons in custody (my emphasis).
Prisoners were to be informed of procedures in respect of amnesty and how to complete the application form properly.
This application had to be made under oath and attested to by a commissioner of oaths.
Any person who wishes to apply for amnesty in respect of any act or omission committed during the designated period, on the ground that it related to an act associated with a political objective, and not purely criminal in context, shall submit his or her application to the Commission (Reconciliation and Unity Commission) in the prescribed form.
In dealing with applications for amnesty, the Commission shall give priority to applications from persons in custody (my emphasis).
The Commission may, where necessary, require an applicant for amnesty to perfect his or her application.
The PRTUB 2005 does not state whether the application should be made under oath and before a commissioner of oaths.
ACTS ASSOCIATED WITH A POLITICAL OBJECTIVE:
SOUTH AFRICA
FIJI
The Act in South Africa required that the incident forming the subject matter of the amnesty application had to have been associated with a political objective.
In this section, ‘an act associated with a political motive’ means an act or omission the commission or omission of which is directly related to or made for the fulfilment of a political purpose, belief or objective during the designated period.
SUSPENSION OF COURT ACTIONS
SOUTH AFRICA
FIJI
In anticipation of the fact that many of these acts, omissions or offences were the subject of court proceedings, the Act provided that:
(a) where the act or omission was the subject of a civil claim, the court might, upon the request of the applicant and after proper notice to other interested parties, suspend proceedings pending the outcome of the application for amnesty, and;
(b) in those instances where the applicant was charged with an offence to which the application related, or was standing trial on a charge of having committed such an offence, the Amnesty Committee could request the appropriate authority to postpone the proceedings, pending the outcome of the application for amnesty.
If the act or omission which is the subject of an application for amnesty under this section constitutes the ground of a claim in any pending civil proceedings, the court before whom the civil claim is pending may at the request of the Commission, suspend those civil proceedings pending the consideration and disposal of the anticipation for amnesty, if the court is satisfied that the other party to the civil action has been notified.
If an applicant for amnesty is charged with any offence constituted by the act or omission to which the application relates, or is standing trial upon a charge of having committed such an offence, the Commission may request the court to postpone the criminal proceedings pending the consideration and disposal of the application for amnesty.
GRANTING OF AMNESTY:
SOUTH AFRICA
FIJI
Amnesty was granted where the Amnesty Committee was satisfied that the application complied with the requirements of the Act: that is, the act, omission or offence to which the application related was an act associated with a political objective and committed in the course of the conflicts of the past, and the applicant had made full disclosure of all the relevant facts.
Where amnesty was granted, the Committee informed the applicant and the victim of the decision and also, by proclamation in the Government Gazette, published the full details of the person concerned as well as the specific act, offence, in respect of which amnesty was granted.
The granting of amnesty completely extinguished any criminal or civil liability arising from the act in question. Any pending legal proceedings against the applicant were likewise terminated. Where applicants were serving a sentence consequent upon a conviction for the act in question, they were entitled to immediate releases from custody. The granting of amnesty also had the effect of expunging any criminal record relating to the offence in respect of which amnesty had been granted. It did not, however, affect the operation of any civil judgment given against the successful applicant based upon the act for which amnesty had been granted.
The granting of amnesty meant that the applicant was released from all criminal and civil liability arising from the incident, and indemnification that also extended to all institutions or persons who incurred vicarious liability for the incident (S20(7)(a). Successful applicants serving prison sentences in respect of an incident were, therefore, entitled to immediate release and the expunging of any relevant criminal record (my emphasis; (S20(8) & (10).
Upon receiving the report and the findings of the Amnesty Committee, the Commission shall prepare its report and findings and shall recommend by way of an advice to the President that amnesty be granted, if the Commission satisfied that, (a) the act or omission which is the subject of the application is one directly associated with a political motive or objective; (b) the act or omission was committed during the designated period (19 May 2000 to 15 March 2001); (c) the act or omission was committed in the course of or as part of a political uprising, disturbance or event or in relation thereto; (d) the act or omission was committed on behalf of a political group, organisation or body of which the applicant was a member, an agent or supporter; and (e) neither the act nor the omission was committed for personal gain, out of personal malice, ill-will or spite (the emphasis is in the PRTUB).
Upon receiving the report of the Commission the President shall act on the advice of the Commission on whether or not to grant the amnesty applied for, and the granting of an amnesty shall by order of the President be published in the Gazette setting out the full names of any person to whom amnesty has been granted.
No person who has been granted amnesty in respect of an act or omission shall be criminally or civilly liable in respect of such act or omission and no body, group or organisation or the State shall be liable either directly or vicariously for any such act or omission: provided that an amnesty so granted shall not (a) have any influence upon the criminal liability of any person contingent upon the liability of the person so granted with amnesty; (b) prejudice the granting of reparation or compensation to a victim of gross violation of human rights arising out of the same acts or omission.
REFUSAL OF AMNESTY:
SOUTH AFRICA
FIJI
When the Amnesty Committee refused an application for amnesty, it notified the applicant and victims concerned of its decision and the reasons for its refusal. If criminal or civil proceedings had been suspended pending the outcome of the amnesty application, the court concerned was notified of this. Where amnesty was refused, the law would take its course against the applicant. Any legal proceeding that might have been suspended pending finalisation of the amnesty application was free to continue. The applicant, would, however, be protected against the disclosure or use of the record of the amnesty application in any subsequent criminal proceedings. The prosecution would, moreover, be precluded from relying on the facts disclosed in the amnesty application, or facts that had been discovered as a result of information in the amnesty application. The Act specifically provided that any evidence during the amnesty process, as well as any evidence derived from such evidence, may not be used against the person concerned in any criminal proceedings.
Upon receiving an application, the Commission may (a) reject the application if the [application] is trivial, frivolous or vexatious or that it relates to an act which is not connected with a political objective or on the ground that it is an act committed outside the designated period; or (b) refer the application to the Amnesty Committee to hear the application in accordance with section 9.
The decision of the Commission rejecting an application for amnesty shall be immediately conveyed in writing by the Commission to any court or Council (the National Council on Promotion of Reconciliation, Tolerance and Unity) which had suspended any criminal or civil action before it pending tie disposal of the application for amnesty: provided that no adverse inference shall be drawn by the court or Council concerned from the fact that the proceedings which were suspended pending a decision on an application for amnesty are subsequently resumed.
