Counter Revolutionary Warfare Unit Court Martial, Fiji

The mutiny that took place at Fiji's Queen Elizabeth Barracks in Suva on 2 November 2000 resulted in the death of four loyal soldiers. Four of the rebels were subsequently beaten to death after the rebellion had been quelled. A total of 42 soldiers from the Counter Revolutionary Warfare Unit, who sympathized with George Speight, whose own civilian coup d'état had been put down by the military in July, were subsequently convicted of involvement in the mutiny. Among those convicted was Ratu Inoke Takiveikata, the Qaranivalu of Naitasiri, one of Fiji's most senior chiefs.

Retrial ordered

On 16 August 2005, the Fiji Court of Appeal delivered a landmark ruling, ordering a retrial of 20 soldiers from the Counter Revolutionary Warfare Unit (CRW) who had been convicted in a court-martial of participating in the 2000 coup and in a subsequent mutiny in November 2000, and sentenced to prison terms of between three and six years. The Court of Appeal President, Justice Gordon Ward, ruled that the military commander, Commodore Frank Bainimarama had acted properly in convening a court martial, but had exceeded his authority in appointing the members of the panel, thus denying the accused a fair trial. The authority to appoint the court martial panel was vested in the President of Fiji, Ward said, and the Commander could make the appointments only after the President delegated the power to him. He also said that the court martial had improperly failed to separate the charges that each defendant faced.

Ward also criticized the oversight of the Fijian government in failing to enact appropriate court martial legislation. Instead of having a law of its own, Fiji still followed the British law, inherited from colonial times, accepting by default whatever changes the British government made to it. Fiji should adopt its own legislation to take account of the realities of the local situation, he said.

On 18 August, the military rearrested the CRW soldiers whose sentences had been overturned by the Appeal Court, pending a retrial. Military spokesman Captain Neumi Leweni said that the 9 CRW soldiers who had participated in the mutiny had been taken into military custody and detained at Suva's Queen Elizabeth Barracks, while 11 others serving sentences related to the coup of May 2000 remain incarcerated in Korovou Prison. Appeal Court Judge Gerald Winter approved the rearrest and refused the defendants' requests for bail, saying that it could be granted only by a court martial panel, not by the Court of Appeal.

Court martial panel named

A ten-member court martial panel was named on 5 October. Military spokesman Captain Neumi Leweni and lawyer Sevuloni Valenitabua announced that Lieutenant Colonel Apakuki Kurusiga had been appointed President of the court martial, with Fiji Law Society President Graeme Leung as the Judge Advocate. Other members of the panel named were Major Sitiveni Qiliho, Captain Anil Kumar, Lieutenant Eliki Salusalu, Lieutenant Marika Vosawale, Captain Viliame Tokalautawa, Captain Viliame Kolinisau and Captain Vatimio Leva. These are very junior officers whom some are considered by veteran soldiers as gung-ho officers. The general belief by loyal soldiers themselves that the panel will be biased considering their reputation as very inexperienced and strongly ambitious who will only want to please Commander Bainimarama rather than assess fairly.

Multiple adjournments

The court martial was supposed to get underway on 12 October but the proceedings had to be cancelled after prison officials failed to deliver the soldiers facing trial. On 19 October, when the court martial was scheduled to convene, Leung was abruptly dismissed without by President Ratu Josefa Iloilo. The military's Legal Services Director, Major Kitione Tuinaosara, said that the President wanted to appoint his own Judge Advocate. The military had done their part by appointing the Court Martial panel, Tuinaosara said, and the onus was on the President to check the panel before approving it. He had not done so, Tuinaosara said. The President's actions effectively adjourned the trial indefinitely.

On 21 October, Presidential spokesman Rupeni Nacewa said that the President had withdrawn the Convening Order for the court martial because of "a procedural anomaly." He denied a claim by the Commodore Bainimarama that it was because the Judge Advocate, Graeme Leung, was the choice of the military. On 26 October, President Iloilo reinstated Leung as Judge Advocate.

It was announced on 25 November that the court martial had been postponed until further notice. The decision was made pending a military application to have Judge Advocate Leung commissioned as an army officer, a necessity for the case to proceed, according to Army Legal Services Director Major Kitione Tuinaosara. The application was made to President Iloilo. Another application by defence lawyer Barbara Malimali, concerning the conditions of the soldiers' imprisonment, was also a factor, Tuinaosara said. "They are being held as civilians although they allegedly committed the offences when they were soldiers so the applications are on things like their rest conditions while in detention, among other things," Malimali's application stated.

On 15 December, the court martial was yet again adjourned indefinitely, on grounds that the Home Affairs Ministry had not yet approved Judge Advocate Leung's commission as a military officer. The commissioning request was lodged with the ministry five weeks before. Lesi Korovavala, the Chief Executive Officer of the Home Affairs Ministry, told Fiji Television that disagreements about the nature of Leung's contract were holding up the appointment. The cost of the contract (F$130,000, to be paid by the military) was also understood to be a matter of contention.

In an exclusive interview with the Fiji Village news service on 3 January 2006, Graeme Leung defended his fees, saying that they were for a demanding assignment that nobody wanted and were therefore reasonable.

Contempt of court allegations; release on bail

On 30 November, Malimali accused the military of being in contempt of court when it refused to release former CRW soldier Ropate Nakau on bail to visit his father over weekends, as the High Court had ordered on 11 November, and after Commodore Bainimarama had not replied to two letters she had sent. In response, Major Tuinaosara replied that the soldiers facing mutiny charges were dangerous and should not be released. "The offence deals with firearms and the military will not risk redeploying them. People are forgetting why we are having a retrial. People died in the mutiny. They are forgetting how dangerous these people are and they should not forget the mutiny shook the security of the nation and these people speak of rights," Tuinaosara said. Malimali rejected this, saying that the ten soldiers in remand were citizens, and had a right to be presumed innocent until convicted.

On 1 December, Justice Gerard Winter at the High Court in Suva found Commodore Bainimarama not guilty of contempt of court, but nevertheless ordered his earlier decision be allowed bail on weekends must be implemented. He agreed with Malimali that Nakau was entitled to bail, as the court martial had not yet convened.

In a further ruling, the High Court Justice Jiten Singh released nine of the soldiers on bail on 23 December. Bail conditions granted to Barbados Mills (38), Pauliasi Namulo (34), Usaia Rokobigi (38), Feoko Gadekibua (27), Peni Bitu (41), Lagilagi Vosabeci (45), Usaia Waqatakirewa (34), Kalisito Vuki (43) and Daniel Koroi Tavalena (41) included a curfew to be observed from 6 p.m. to 6 a.m., and an order not to communicate with one another, with witnesses, or with military personnel. They were ordered to surrender their passports and to report to the police daily between noon and 3 p.m.. Their release was confirmed by lawyer Sevuloni Valenitabua.

The military's response

On 20 December 2005, Commodore Bainimarama demanded Korovavala's resignation in the wake of the repeated adjournments, which Bainimarama alleged to be a case of political interference to make the military toe the government line. This provoked an angry reaction from Anare Jale, Chief Executive Officer of the Public Service Commission, who said that the Commander had gone too far. "Mr Bainimarama cannot just make public comments as he wishes. There are proper channels to follow if civil servants have complaints about authority," he stated.

Home Affairs Minister Josefa Vosanibola said on 21 December that the government could not afford to pay the F$130,000 fees that Leung was demanding. "Even the Chief Justice and other High Court judges do not get that kind of money," he said. Instead, his ministry proposed paying F$30,000 plus a daily sitting allowance of F$200, according to a paid advertisement published by Korovavala. This provoked a further outburst from Commodore Bainimarama, who said that the same contract, with the same enumeration, had been offered to the previous Judge Advocate, Sarvadanand Sadal. At any rate, he insisted, the pay was between Leung and the military, as it was the military, not the government, that was footing the bill. The case was a difficult one, Bainimarama said, with politics colouring the issues involved. Major Kitione Tuinaosara, concurred, saying that it had been difficult to find a judge willing to hear the court martial because of the seriousness of the charges.

The commander also questioned why it had taken more than a month for the ministry to reply to his initial proposal. The government had expressed no reservations about the contract until the military had inquired about the reasons for Leung's delayed commissioning, he alleged.

In another outburst on 22 December, Bainimarama demanded that civil servants like Korovavala and Jale stop trying to "intimidate" the military. "Jale and Korovavala have been trying to take me to task," he said. "I challenge them to take me to task in front of the Public Service Commission. Go ahead and make my day," the Fiji Times reported. In the same press conference, the commander reiterated that the military would do all in its power to prevent the Unity Bill from becoming law.

In a further development reported by the Fiji Times on 23 December, Commander Esala Teleni said that the military had already signed Leung's contract. This, he said, was the prerogative of the military, not the ministry. He also claimed that Leung had been chosen as Judge Advocate at the request of President Iloilo. "If Home Affairs does not want him, it would go against the President's wish," Commander Teleni said. Home Affairs acting chief executive Saverio Baleikanacea reacted by demanding to know under what and whose authority the military had concluded its contract with Leung.

Other criticisms of the delay

The Fiji Human Rights Commission (FHRC) condemned the delays in the commissioning of Judge Advocate Leung. In a strongly worded statement, Dr. Shaista Shameem, the Director of the Commission, said on 22 December 2005 that the delays violated the constitutional rights of a defendant to have the case determined within a reasonable period of time.

Leung himself said the same day that he had yet to be commissioned as an Army officer, to allow him to assume the position of Judge Advocate.

Lawyer Barbara Malimali, who represents fourteen of the twenty prisoners awaiting retrial, also criticized the delay, saying that it was causing suffering to the people concerned. These men wanted answers, she said. She threatened to take the matter to court if the standoff was not resolved. Then, on 28 December, she told the Fiji Village news service that she had requested President Ratu Josefa Iloilo, in his capacity as Commander in Chief of the military, to intervene to uncover the reasons for the delay in implementing his directive to convene the court martial retrial.

Leung commissioned

The Home Affairs Minister finally approved Leung's appointment as Judge Advocate, and his commissioning as a Lieutenant Colonel under a Short Service Territorial Commission in the Fiji Infantry Corp., on 4 January 2005. Minister Vosanibola said that the delay had been caused by the need to gain additional information from the military, but military spokesman Captain Neumi Leweni denied this, with Commodore Bainimarama saying on 5 January that the Home Affairs Ministry had misled the nation. "When they said they were waiting for a reply to their letter, it was all lies because there was no letter at all," the Commander said.

Bainimarama was supported by Captain Neumi Leweni, who also said the ministry had "lied" in a press release from the Information Ministry on 3 January. The military had sent the required documents not once but twice, Leweni said; the Ministry had lost the originals. The delays, and the timing of the final commissioning, suggested a hidden agenda on the part of the government, he alleged.

Meanwhile, Paula Uluinaceva, the acting Chief Executive of the Finance Ministry, said that Leung's salary would have to be drawn from the military's budget.

The court martial reconvenes

The court martial reconvened at 11 a.m. on 10 January 2006. Legal counsel had earlier revealed that 8 of the 20 soldiers being retried intended to plead guilty. Meanwhile, the nine soldiers who had been released on bail before Christmas were remanded in custody.

Four of the accused were represented by Sevoloni Valeinitabua, three by Captain Navi Suwai, and two by Barbara Malimali. Eleven remained unrepresented.

Two members of the court martial panel were dismissed before the searing in. This followed objections from Malimali against three members. Captain Setareki Bogidrau, Major Sitiveni Qiliho, and Lieutenant Commander Bradley Bower, the Operations Officer of the Navy, were said to be too closely identified with Commodore Bainimarama and it was noted that they had fought against the alleged mutineers in 2000. Bogidrau had been the Operations Officer for the Third Battalion which had put down the mutiny, while Giliho had helped to secure the Suva Naval base for loyalist forces. Bower had also had a hand in suppressing the revolt, she alleged. Judge Advocate Leung upheld the challenge to Bogidrau and Qiliho and dismissed them from the panel, but rejected the claims made against Bower.

The court martial was adjourned later that day, and was scheduled to reconvene on 17 January. The session was postponed until the 18th, however, and began with Malimali calling for the court martial panel to be dismissed on account of what she said were "anomalies in the swearing-in process." Court Martial President Apakuki Kurusiga rejected the call for the dissolution of the panel.

That day, lawyer Sevoloni Valeinitabua applied for bail for his four clients, even though they were ready to plead guilty. This application was strongly opposed by the prosecution, and the Court Martial Panel rejected it on the 20th. Kurusiga said, however, that President Ratu Josefa Iloilo would be asked to consider the matter, in his capacity of Commander-in-Chief of the Military Forces. Lawyer Malimali expressed bitter disappointment with the decision.

Court proceedings are scheduled to resume on 30 January, when nine accused are expected to plead guilty.

Judge Advocate Leung told the press that he had declared a potential conflict of interest to the Court Martial President. He was paying the school fees for two children of an ex-CRW soldier, he said. He did not reveal whether the soldier was one of those being tried, but said that his impartiality would not be affected.

Soldiers plead guilty

The Fiji Live news service reported on 31 January that eleven of the former CRW soldiers - Lance Corporal Barbados Mills, Private Beniamo Sokiveta, Private Pauliasi Namulo, Corporal Isireli Cakau, Corporal Metuisela Railumu, Private Feoko Gadekibau, Lance Corporal Daniele Koroitavalena, Corporal Maciu Tawake, Private Emosi Qicatabua, Sergeant Peni Bitu and Lance Corporal Eparama Waqatairewa - had pleaded guilty. It was later revealed that Sergeant Malakai Cakaunitabua had also pleaded guilty. The remaining eight pleaded not guilty.

Qicatabua, Railumu, and Bitu apologised and expressed remorse for their role in the mutiny. The apology was addressed to the Commander of the military, the families of the soldiers killed in the mutiny, churches, and the public of Fiji. Bitu said he was now a born-again Christian and had learned his lesson from five years in custody.

Lawyer Malimali called for clemency to be shown, on the grounds that the mutineers had merely been following orders and had not been involved in the planning of the mutiny. They had already been punished enough, she said. She called for two of her clients to be discharged.

The military prosecutor, Major Kitione Tuinaosara, answered that it must not be forgotten that mutiny was a very serious offence and carried serious discipline. The court martial subsequently adjourned on 1 February to deliberate on sentencing the twelve who had pleaded guilty.

Sentences meted out

On 10 February, Court Martial President Apakuki Kurusiga read out the sentences. He said that mutiny was a serious criminal offence which in former times would have incurred the death penalty. "The attempted mutiny struck at the very heart of military discipline. The mutiny has also called into question the professionalism of the military and its personnel, most of whom are dedicated and loyal soldiers," the judgment read. "The uprising of November 2000 is a terrible stain on the once proud record of the RFMF. This court cannot ignore the fact that a number of soldiers were killed during the mutiny."

Mills, Koroitavalena, Tawake, Waqatairewa, Qicatabua and Sokiveta were all sentenced to a one-year prison term; as junior non-commissioned officers, their responsibility for the mutiny was limited, Kurusiga said. Railumu and Bitu were sentenced to two years each, while Cakau received one year and 8 months. The maximum sentence of three years' imprisonment went to Cakaunitabua, who as a senior non-commissioned officer had "significant command responsibility". All of these sentences represented a reduction of the original sentences, which had ranged from 3 to 6 years, in view of the time they had already served. Namulo and Gadikibau were released, also in view of the time already served.

The trial of the remaining eight

The remaining eight, who pleaded innocent, appeared before the Court Martial on 16 February. Defence counsel for Privates Filimoni Raivalu, Jona Nawaqa, Lagilagi Vosabeci, and Ropate Nakau, Lance Corporal Usaia Rokobigi and Sergeants Peni Bitu, Kalisito Vuki and Viliame Tikotani, were given till 23 February to make their submissions. The military lawyer, Major Kitione Tuinaosara, revealed that he would be bringing in five new witnesses. Judge Advocate Graeme Leung ordered both parties to conduct a pretrial conference before the 23rd.

Another adjournment was announced on 27 February, to arrange representation for some of the accused and to give time for defence lawyers to study evidence filed by the prosecution. Fiji Live reported that some of the defendants would be represented by Vodo Tuberi and others by Barbara Malimali.

The court martial resumed on 13 March. Sergeant Ifereimi Vatutalei testified that on going outside to investigate the sound of rifle fire, he had seen Vosabeci brandishing a rifle on 2 November 2000.

Military prosecutor Captain Pacolo Luveni announced on 14 March that the military intended to call a total of 48 witnesses.

Appearing as a witness, Warrant Officer Waisale Rakusa testified on 15 March that he had seen a soldier fire shots at a military vehicle on 2 November 2000.

On 16 March, the court martial panel was shown through the Queen Elizabeth Barracks in Nabua, to allow them to survey the layout. He had then seen two of the accused, namely Tikotani and Iowane Waseroma run towards the armory.

Commodore Bainimarama denied on 16 March that the killing of rebel soldiers in the mutiny had been ordered by the military.

Soldiers demand to be paid

On 19 January, it was reported that the soldiers on trial had complained that they had not been paid since July 2004. As they had not yet been convicted, their pay should not be stopped, they maintained in a letter read to the court by defence lawyer Sevuloni Valenitabua. Court Martial president Lieutenant Colonel Apakuki Kurusiga said that he would investigate the matter. Military prosecutor Major Kitione Tuinaosara, however, said that whether or not to pay detained soldiers was within the discretionary prerogatives of the Commander.

The same day, an application to dissolve the panel was rejected. The application, by defence lawyer Barbara Malimali, held that the panel should be dissolved as it had breached procedures in its last meeting.