This Report was a collective effort and would not have been possible without the extensive input and contributions of Government ministries and departments, all of whom the Ministry of Social Welfare, Women and Poverty Alleviation would like to sincerely acknowledge.
Special thanks to the Consultant, Ms. Nazhat Shameem who have compiled and drafted this follow-up report with the following individuals from the CEDAW Working group from various agencies who work within the ambits of the issues pertaining to Concluding Observation 11.In Fiji's CEDAW additional report there were many tidbits that not even the everyday Jone and Pranita are privy to, even though their taxes fund them and these exercises.
The Ministry would also like to acknowledge the continuous technical and financial support and assistance of the UN Women, United Nations Entity for Gender Equality and the Empowerment of Women and particularly for funding the engagement of the consultant and the printing of this report.
- Mr. Nemani Mati – The Acting Permanent Secretary, Prime Minister‟s Office;
- Hon. The Chief Justice Mr. Justice Anthony Gates;
- Ms. Irani. G.W. Arachchi – Chief Registrar, High Court of Fiji;
- Mr. Ashwin Prasad – Statistician, Judicial Department;
- Mr. Gene Bai – Senior Legal Officer, Solicitor General‟s Office;
- Mr. Mosese Korovou – Assistant Director for Public Prosecutions, DPP‟s Office;
- Adi Finau Tabakaucoro – Consultant, Charter Corporate Unit, SFCCO;
- Mr. Joeli Besetimoala – Director Public Relations Unit, Strategic Framework for Change Coordinating Office;
- Mr. Viliame Vuyaimoala – Senior Electoral Officer, Elections Office;
- Ms. Jimaima Vilsoni – Principal Administration Officer, Public Service
- Ms. Sovatabua Colavanua – Barrister and Solicitor, Fiji Human Rights Commission
- Ms. Swasti Nand, Fiji Human Rights Commission
- Mrs. Salote Radrodro, Director for Social Welfare and Women, Ministry of Social
- Welfare, Women and Poverty Alleviation;
- Ms. Raijeli Mawa, Acting Principal Research Officer, Ministry of Social Welfare,
- Women and Poverty Alleviation;
- Ms. Amelia Nairoba, Acting Senior Women Interest Officer, Ministry of Social
- Welfare, Women and Poverty Alleviation.
Here are but a few gems that are note (read: court) worthy and much more information then perhaps intended:
3. The Constitutional Review Process
3.1 The constitutional review process will commence in 2012. However it is envisaged that a constitutional review process will be based on the People's Charter for Change, and the Roadmap for Democracy and Sustainable Socio-Economic Development 2009-2014 . It is also likely that the process of ensuring meaningful participation of women will involve using the strategies used to ensure that public consultation on the People‟s Charter for Change was meaningful and representative.
3.2 The National Peoples Charter Advisory Council (NPCAC) monitors the implementation of the Roadmap for Democracy and Sustainable Socio Economic Development. It provides a forum for national consensus building on development issues, and it has advised a dialogue, consultation and awareness process to ensure a representative constitutional framework design.
4. The Participation of Women
4.1 A real obstacle to the real and meaningful participation of women in the past has been the patriarchal nature of Fiji society. Another is the existence of cultural barriers in ensuring that women's voices are heard in a way in which cultural, religious and family pressures are minimised. During the constitutional review processes in 1995 and 1996, as a result of which the 1997 Constitution was drafted, the participation of women was disappointing . There was some representation of women's organisations and elite women, but there was no real process of ensuring that the voices of women's groups and of the elite women truly represented the voices of Fijian women.
4.2 Indeed through the Charter process of consultation, attempts were made, with some success, to avoid the pitfalls inherent in consulting only elite women, and instead to forge new methods of consultation at grassroots level which involved consultation with women in traditional settings, in poor urban areas, and within all religious and cultural groups. The aim was to penetrate layers of elitism which were not representative of all views of all women in Fiji, and to devise strategies to consult with informal and formerly unacknowledged groups of women.
4.3 Thus, in a village setting, cultural norms have not always allowed the voices of women to be heard. Often, informally, the village nurse may speak for the women. Formally, women are usually heard through male elders. During the Charter consultation process, this traditional method of consulting the village communities, was adapted to allow for the seeking of views of separate groups of women. The result was gratifying, as the women felt more comfortable speaking to representatives of the Charter group, away from the men of the village, and often had different views and perspectives from the male views in the village. It was also clear that the women's groups, often led by elite women, did not speak for the women in the villages, squatter settlements, and heavily populated urban areas. This is not to diminish the worth of the contributions of the various representatives of women's groups in the past. They have at least ensured that women had some voice. However, it is time to work towards a more representative contribution from women.
4.4 It is therefore intended, that to ensure the real and meaningful participation of women in the constitution-making process, that the People's Charter strategy of consultation will be adopted. Indirectly, the adoption of informal mechanisms for consulting women, side-stepping cultural protocols, some of which do not allow women's voices to be heard, may lead to a useful adaptation of tradition and cultural practices in Fiji, which is in itself in accordance with Fiji's obligations under CEDAW.
4.5 Consideration will also be given to the suggestion that in the selection of a panel for the constitutional review process, at least one woman, or 30% of the total membership, should sit on the panel, and that all members of the panel, male and female, should be gender-competent.
4.6 Pillar 1 of the People Charter requires that there be “sustainable democracy and just governance”. The principles that Fiji is committed to are; a fair and representative electoral system, the strengthening of national security, substantially reducing the likelihood of coups d'état ,defining and articulating the role of the Republic of Fiji Military Forces, ensuring the effective operation of the rule of law, improving the response to law and order issues, entrenching a culture of democratic governance, enhancing public sector accountability and participation in governance, maintaining an effective anti-corruption framework, creating a free and responsible media which contributes to good governance and national development, and improving Parliamentary oversight.
5. The Rule of Law
5.1 The rule of law is said to be about equality before the law. It has two aspects, one, that every person should be subject to the law (the King is subject to God and the law) and two, that the law must be applied in the same way for every person. The concept has been developed by jurisprudence around the common law world because of the inescapable fact that societies have inequalities, and that “equal” treatment of the disadvantaged often leads to greater disadvantage.
5.2 Thus affirmative action is not necessarily an example of inequality. It can be used to enforce an equal access to justice for those who have had an unequal access to justice. Thus in discussing the rule of law, it is necessary to discuss inequality in the access to the courts, gender justice, and the relationship between poverty and gender inequality in the justice system. It is necessary to discuss reforms to the Legal Aid Commission, which represents the poor, and which until 2007, had been grossly under-funded by government. It is necessary to discuss legal reforms intended to remove systemic gender discrimination, such as the abolition of the law on spousal privilege and on previous sexual history. It is necessary to discuss the availability of efficient and fast court services to the poor, the rural areas, and to women and children. The Asia-Pacific Human Development Report on Gender, “Power, Voice and Rights” says:
“Globally, four billion people-most of the world's population- are excluded from the rule of law. This figure covers a significant number of women in Asia-Pacific, even in countries where laws are relatively sound....Specific barriers, rooted in gender, prevent women from getting to court or other judicial mechanisms, or finding fair judgments once they are there. This propensity worsens when the laws themselves ignore or discriminate against women. Effective justice systems are particularly critical when power is imbalanced, and people with a weaker voice and fewer options for recourse- like women- have limited options for redress. Women are often more vulnerable to injustice to start, and more in need of measures to protect their legal rights. Impoverished women carry an additional burden. The extra-powerlessness of poverty makes them even more prone to criminal and human rights violations, and more likely to fall further into poverty through the lack of redress.
5.3 Fiji is aware of these real barriers to the rule of law. If there is no effective access to justice, there is no rule of law. In particular, perpetrators of gender based violence have for many years been above the law.
6. Independence of the Judiciary
6.1 Central to the rule of law is the independence of the judiciary. Fiji accepts that the judiciary must be independent, not only of the executive, but also of other influential and well-resourced authorities, in Fiji and abroad. True independence is about making decisions on the merits of a case without actual or apparent bias.
The appointments to the High Court, Court of Appeal, Supreme Court and the magistracy, are currently made by the President of Fiji. Positions are advertised in newspapers in Fiji and abroad . However, it is envisaged that a Judicial Service Commission to make recommendations to the President will be enlivened by the President at an appropriate time. This issue is dealt with under (7) below.
Currently there are impediments in making appointments to the Bench from the local Bar.
All judges and magistrates in Fiji are on a ban for travel to New Zealand and Australia, and this ban has led many qualified local lawyers to avoid appointment. This has led to appointments from the sitting Bench and the Attorney-General‟s Chambers in Sri Lanka. However in sofar as the political action of Australia and New Zealand has led to obstacles in the recruiting of competent, qualified and suitable men and women from Fiji to the Fiji judiciary, this is a direct interference to the judiciary. The appointment process should be on merit alone. In a statement made on the 1st of November 2009, the Chief Justice said;
"Like many a Chief Justice I would normally be slow to issue a press statement let alone appear on camera for such a purpose. However as Head of the Judiciary in Fiji I must stand up against such interference. Fiji must have a judiciary. And it is not for Australia and New Zealand to tell us we cannot have one, or to tell us who we are to appoint. No international convention allows for such a supervisory role to a neighboring state.”
8. Gender Equality and Constitutional Change
8.1 The 1997 Constitution, under section 38, guaranteed the right to gender equality, as well as a number of other rights, including freedom from discrimination on the ground of sexual orientation. It is unlikely that there will be any derogation from this right in a new constitution. Firstly, the Human Rights Commission Decree provides specifically for the right not to be discriminated against on the ground of gender. The Decree also provides for effective enforcement procedures to ensure that the guaranteed rights are not mere platitudes. The Decree also defines discrimination in accordance with developing jurisprudence in particular in the light of jurisprudence from the European Court of Human Rights.
10.1 Article 2(c) of CEDAW requires States Parties to “establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination.”
10.2 Currently, the rights of women can be enforced through the Human Rights Commission, the Legal Aid Commission, and the courts. In particular the law in Fiji provides better strategies for protection since the enactment of the Crimes Decree, the Criminal Procedure Decree, the Employment Relations Promulgation, the Domestic Violence Decree, the Child Welfare Decree, the Mental Health Decree, the HIV/AIDS Decree, and the Human Rights Commission Decree.
10.3 It is envisaged that there will be rights to enforcement in the new Constitution. The 1997 Constitution gave the judiciary the power to strike down or read down laws which were inconsistent with the Bill of Rights. Using these powers the judges read down criminal laws on homosexuality and struck down laws on the mandatory imprisonment of juveniles. Consideration will be given to retaining such a judicial power in the new Constitution. However, an accompanying priority for Fiji is the continuous training of judges and magistrates on gender justice and human rights. This is accepted by the judiciary, and is being implemented.
11. Free Elections
11.1 Ensuring that elections in Fiji will be free, is a challenge for Fiji. This is because, our past experience has shown that the authority of traditional, patriarchal, and cultural institutions influence how votes are registered and made. Pillar 1 of the People's Charter for Change identifies those barriers to democracy which have existed in the past. They are; a communal representation system, a preferential system of voting which did not necessarily represent the views of the majority, the absence of a law which ensures that no person shall be discriminated against by political parties on the grounds of race, religion, gender, or circumstance, a voting age of 21 so that adults over the age of 18 were not permitted to vote, compulsory voting, a constitutional electoral process which was hard to amend to reflect the will of the people, and most importantly, reserved seats for different racial groups and voting on ethnic bases as was required by the 1997 Constitution.
11.2 Our experience of past elections was that the elections were far from free. The laws on elections easily permitted malapportionment, inaccurate voter registration which then effectively dispossessed whole groups of people of the right to vote, and the transfer of massive numbers of votes from one constituency to another.
11.3 The steps currently being taken to ensure the elections in 2014 are free, such that people are free of any pressure, political, cultural, and religious, or influenced by patriarchy, are aimed at the following:
a. Enhancing voter registration processes – the introduction of Electronic Voter Registration;
b. Maximizing voter turnout by running voter education programmes using the same participatory channels as the Charter consultation and the constitutional review process;
c. Minimizing invalid votes by, inter alia, reviewing ballot paper design;
d. Eradicating voter fraud by using measures such as the use of fingerprint and photograph identification;
e. Ensuring that elections are financed in a cost-effective way, by measures such as holding elections on one day, and using the same Roll for municipal and national elections;
f. Ensuring the elections satisfy national and international standards by reviewing policies systems and procedures;
g. Ensuring there are rules for political campaigning, campaign funds, and media reports on political campaigns. This will include review of codes of conduct for politicians and political parties.
11.4 Pillar 1 of the People's Charter states that reform must be implemented to abolish the alternative voting system which did not reflect voter opinion, to adopt the List Proportional Representation Open System, to adopt an electronic voter registration system so the flaws in door to door manual registration are removed, and to remove voting on ethnic lines. It is envisaged that equal franchise, non-ethnic voting, and proportional representation will be enshrined in the Constitution, but that the electoral processes and regulations will be in a separate Electoral Decree. By removing the ethnic basis of voting, and by removing reserved communal seats, it is anticipated that political parties will increasingly campaign on the basis of social and economic policies. It will also be necessary to educate the public on the need to vote on policies and not on racial or communal lines.
11.5 The State of the Nation and the Economy Report (NCBBF, August 2009) set out the proposed electoral reforms as follows;
11.5.1 the complete abolishment of the communal representation system as provided for under the Constitution and the Electoral Act 1998 and the use of a common roll for all future elections;
11.5.2 the electoral and voting system as provided for under the Constitution and the Electoral Act 1998 is reformed to enable the adoption of a Proportional Representation System;
11.5.3 that the open party list be advised as the preferred electoral system in public consultations on electoral reform. Other systems that may be included for these consultations are the closed list and MMP systems;
11.5.4 that specific anti-discrimination measures be incorporated into Fiji‟s electoral laws to ensure no person is discriminated against by political parties on the grounds of race, religion, gender or circumstance;
11.5.5 that a relatively small number of large constituencies, but no more than five, is adopted to maximise the proportional benefits of a PR electoral system;
11.5.6 that the mandatory power sharing arrangement as provided under section 99(5) – (9) of the Constitution be removed and due consideration shall be given for the formation of a truly representative Cabinet;
11.5.7 the reduction of the voting age from 21 to 18; and
11.5.8 the abolition of compulsory voting.
The Fiji government has accepted these recommendations as the basis of electoral reform. Other reforms considered are in relation to the term of sittings of Parliament, the size of the House of Representatives, the future status of the Senate, eligibility to contest a general election, eligibility to vote, and ways in which the Constitution may be amended.
11.6 Following the abrogation of the Constitution in April 2009, all appointments under the Constitution were revoked, including that of the Supervisor of Elections. The Office was re-established under Decree No 6 as was the Electoral Commission. The Office is working on the steps necessary to administer the elections, including spearheading electoral reform. By 2014, the numbers of voters eligible to vote (over the age of 18), will be approximately 660,000. It is likely that there will be 4 or 5 constituencies, that the voting system will be the Proportional Representation Open List System, that there will be 1150 polling stations, that registration will be compulsory and that voting will be optional. Registration will be electronic, there will be approximately 1150 ballot boxes and it is planned to have electoral reforms to ensure that voting takes place over one day.
12. Fair Elections by 2014
12.1 Where elections are free, they are more likely to be fair. However, often unfairness arises from circumstances which are not easy to detect or police. How free are women in Fiji to vote where they want? Or must they vote with their husbands and male children? Just as women are often pressurised not to complain about family violence inflicted on them, and just as the dark figures of unreported crime is the highest for crimes where the victims are women and children, so are women pressurised to vote along the lines expected of them in patriarchal society.
12.2 The Office of the Supervisor of Elections has adopted a gender mainstreaming policy which is designed to strengthen the participation of women at each stage of preparation and conduct of elections. They include strategies for consulting women during the voter education programmes, the political party nomination process, the registration process, and the voting process. It is designed at improving the representation of women during and as a result of elections.
12.3 To ensure that elections are truly “fair”, Fiji is embarked on a period of fundamental social change, aimed at the substantive democratisation of our society. By democratisation, we mean substantive equality. By equality is meant, equality between men and women, between the rich and the economically disempowered, and amongst all the ethnic groups in Fiji. In order to ensure that every vote has the same weight, what must be eradicated are our fundamental social inequalities which have prevented elections from being fair in the past.
12.4 How this is to be achieved, is set out in the People's Charter for Change and in the Roadmap for Strategic Change which deals not only with legal reform but also with social and economic reforms. It is accepted by Fiji, that legal reforms have little meaning without economic empowerment. Thus government is working on reforms to the right to safe housing, the right to access micro financing, the right to benefit equally from land rents, poverty alleviation programmes, the legalising of the titles to land for squatters, the development of village communities, free education for all children, free text books and bus fares for school children, and the removal of VAT from essential food items. This is not to say that our people will be reliant on handouts from the State. We have had such a relationship between the State and groups of people since colonial rule, and it has not built a self-sufficient and self-reliant population. Our reforms are aimed at encouraging self empowerment.
12.5 Nor is there a plan to abolish our cultures. We are proud of our cultures and draw strength from them. Our reforms are aimed at educating the people and their cultural leaders that responsible leadership is democratic leadership, and one which empowers men and women in order that they may make wise decisions for themselves and all of the community. Wise leadership is also about accountability, of the leaders, to the people.
12.6 Therefore our reforms are aimed at the substantive democratisation of our society, and at unifying our people regardless of ethnicity, gender and economic status. Fair elections are only possible when there is substantive equality and therefore substantive democracy. We do not wish to hold elections, only to have the results rejected by groups of people because their party did not win. Yet that has been our history. If democracy is to survive in Fiji, it must have meaning in the hearts of our people. It is for that reason that the reforms must take place before elections- to ensure that elections in the future will be fair in the true meaning of the word. It is for that reason that elections cannot be held earlier than 2014. They will be held no later than 2014.