Nearly A Year Later: Time for Western Kingston Commission of Enquiry Recommendations Update

May 20, 2017 by rightpouitree 6 Comments

Next week will be seven years since the Jamaica Defence Force (JDF) and the Jamaica Constabulary Force (JCF) joint operation in Western Kingston which resulted in the death of more than 70 people. Next month will be a year since the report of the Western Kingston Commission of Enquiry was tabled in Parliament and made public. It is certainly time for the country to get a full update on the status of the recommendations made in the report.

This is one of the problems with the Commission of Enquiry process. An Enquiry takes place and at the end of the process, strong and pertinent recommendations are sometimes made. At that point, another process starts or should start, but there is no formal requirement ensuring that next phase. There should be a system whereby the government is required to outline publicly which of the recommendations it has accepted, what steps it intends to take towards implementation and the timelines associated with that implementation. There should also be a formal process whereby the government is required to give periodic official public updates on the progress of that implementation, perhaps through scheduled reports to Parliament. This is not a new problem and contributes in part to the widely held belief that Commissions of Enquiry are a waste of time and money, as nothing ever comes of them.

The Minister of Justice, Delroy Chuck has attempted to move in that direction, having given some updates from time to time in Parliament and otherwise, updates about the setting up of a Cabinet Committee, the selection of the Chair of the Compensation Committee and the start of the Committee’s work, and the intention of the Government to apologise, for example. There have been statements by the JDF and the JCF indicating that they were working on some of the recommendations that applied to them. But this is an ad hoc process, and though things may well have progressed beyond what the public is aware of, there has been no formal, predictable structure for any updates.

In his Budget Debate presentation in Parliament on March 21, 2017, Prime Minister Andrew Holness committed to apologising to victims of the Tivoli operation when he said:

The wrongs of the past must be acknowledged and an apology offered to the victims of state-inflicted violence as recommended by constituted review bodies. On behalf of the Jamaican State and in my capacity as Prime Minister I will make the apology in Parliament to victims of the Tivoli Incursion and the Coral Gardens Incident.

The Prime Minister has made the apology for Coral Gardens, but hasn’t yet apologised for the abuses during the operation in Western Kingston and no date has been given for when he will. He made no other specific reference to the Commission’s recommendations during his presentation. Additionally, neither Minister Chuck nor Minister of National Security Robert Montague made specific reference to the Commission’s recommendations during their recent Sectoral Debate presentations or used the occasion to give a specific update on progress with implementation of the recommendations.  Also, I am not aware of any comprehensive public updates from the JDF and JCF after their initial responses to the Commission’s report.

I may well have missed some updates that have been given in Parliament or elsewhere, and I am sure that I could find additional information if I made Access to Information requests to various government ministries and bodies. I could also probably find additional information by searching the Hansard record for relevant dates. But the information ought to be more easily accessible and we should have some prescribed timelines for updates. I would like to suggest that sometime in June, twelve months after the Commission’s report was tabled in Parliament, would be a good time for a comprehensive update on what progress has been made on each of the Commission’s recommendations. The update should clearly state whether any progress has been made, the nature of that progress and what remains to be done, including relevant timelines. Instances in which no further action is planned should also be clearly stated. And as these updates are being contemplated and given, it is important to acknowledge again that this isn’t simply a paper exercise. It is about real people who were directly or indirectly impacted by the events, about a government giving account to its people, about preventing such occurrences happening again and about a process of justice and healing.

Recommendations of the Western Kingston Commission of Enquiry

Below I will set out briefly the recommendations made in Chapter 15 of the Report, for which progress updates need to be given.

UPDATE NEEDED REGARDING STATUS OF IMPLENTATION OF RECOMMENDATIONS INCLUDED IN REPORT OF WESTERN KINGSTON COMMISSION OF ENQUIRY CONCLUDED IN 2016
SECTION OF CHAPTER 15	RECOMMENDATIONS	COMMENTS
INTRODUCTION	15.1 The Commission indicates that in other Chapters in the report they “have recommended that further investigations be carried out as a matter of justice and with a view to preventing a recurrence of similar events.”	The bodies responsible for the further investigations, such as the JCF and INDECOM, should give an update on the status of such investigations.
PART 1-REDRESS 1. APOLOGY	15.7 “…we recommend that the GoJ apologize in Parliament to the people of West Kingston and Jamaica as a whole for the excesses of the security forces during the operation. The Government is, in the last resort, responsible for the conduct of its security forces.”	The Prime Minister has indicated in Parliament that he will make this apology. He should indicate the date on which he will apologise and carry this out.
2. COUNSELLING FOR TRAUMATISED PERSONS	15.8 “…we are satisfied that there needs to be a programme of continuing counselling for some of the residents including children.”   15.9 “We therefore recommend that this matter be pursued by the appropriate Ministry.”	The Government should indicate which Ministry is responsible for implementing this recommendation, what programme is in place and what counselling has been and will be provided.
3. COMPENSATION FOR VICTIMS	15.12 “…we recommend the establishment of a Compensation Committee with two broad mandates…” 15.13 “We respectfully further recommend that the Compensation Committee be chaired by a retired judge or senior attorney-atlaw…and the Committee should be directed to complete its work within 9 months.”	The Chair of the Compensation Committee could give an indication of the progress of the Committee in its work and should indicate whether it will complete its work within the recommended 9-month period.
4. WAIVER OF LIMITATION PERIOD	15.14 The Commission refers to the legal restrictions regarding the timeframe in which claims against the State can be brought, 3 years in some instances and 6 years in others.   15.15 “We therefore recommend that the State waive its strict legal rights to all claims and agree to settle compensation on an ex gratia basis in respect of claims brought by aggrieved persons, personal representatives and/or near relations and/or dependents of deceased persons.”	The Government needs to confirm its position regarding the recommended waiver.   The Office of the Public Defender should give an update regarding its participation as referenced in 15.15
PART 2 -PREVENTION	15.16 The Commission gives a non-exhaustive list of measures that would prevent similar events in the future.
1. ADMINISTRATIVE REVIEWS	15.17 “Consistent with our findings with regard to the conduct of certain officers and other ranks of the JCF and JDF, we recommend that both forces undertake administrative reviews of the conduct of the named officers….We note that since May 2010, some of these officers have been promoted – in some cases to very senior ranks.”   15.18 “We recommend that the serving police officers against whom adverse findings have been made be relieved of any operational commands that they may hold and that they be prohibited from serving in any special operations units.”   15.19 The Commission indicated the allegations of involvement of members of the Mobile Reserve in extra-judicial killings.   15.20 “Where the accusations of extra-judicial killings on the part of the security forces were found by this Commission to be credible, and where persons were identified as being in dereliction of duty or were administratively or operationally incompetent, we recommend that these persons should never again be allowed to lead or otherwise participate in internal security operations.”   15.21 “We further recommend that the Mobile Reserve be subjected to special external oversight arrangements.”	The JCF and JDF should give an update on the status of the recommended administrative reviews of the named officers.   The JCF should give an update regarding the recommendation to relieve certain officers of operational command.   The Government should give an update regarding the recommended special external oversight arrangements for Mobile Reserve.
2. USE OF WEAPONS SYSTEMS	15.22 The Commission pointed to the need for “policies that guide the selection of weapons systems that may be used in internal security operations….We strongly recommend that a group of competent persons be tasked to draft such a policy.”   Future use of Mortars and other Indirect Fire Weapons 15.24 “We therefore recommend that, in future, the leadership of the JDF pay careful regard to contemporary best practice and learning in relation to the use of weapons of indirect fire. Consistent with international humanitarian law, the use of these weapons in built-up areas should be prohibited.”	The Government should indicate the status of drafting policies regarding selection of weapons systems for internal security operations.   The JDF should indicate the status of its review of future use of mortars and other indirect fire weapons.
3. IMPROVING LEGAL AND ADMINISTRATIVE ACCOUNTABILITY FOR USE OF FORCE	15.27 “…we recommend the following firearm related systems and procedures for favourable consideration by the GoJ:” These are set out in (a) – (e).           Use of Masks or Other Concealment Gear 15.28 “…we recommend that the use of masks and/or other concealment gear be limited to special cases when the identities of particular officers and units are best protected by these means. We also recommend that where masks and other concealment gear are used by entire units or groups, this be done only with the approval of the CDS and CoP for the JDF and JCF respectively….Moreover, we recommend that in all cases, there be reliable and verifiable means of internally identifying all individuals for whom approval is given to wear masks and or other concealment gear….   Body Worn Cameras 15.32 “This recommendation should also apply to soldiers who participate in special policing operations.” 15.33 The Commission recommends the use of body worn cameras by the police. “We therefore recommend the introduction of this type of technology.”	The Government should give an update regarding the status of the recommendations to do with firearm related systems and procedures; for several of these, the JCF’s update would be relevant.     The government should give an update regarding the policy regarding wearing of masks or other concealment gear; the JDF and JCF updates would be relevant here.                   The Government should give an update regarding the implementation of the recommendation for the use of body worn cameras by the JCF and JDF. The JCF update would be relevant here.   Of particular note is the status of the protocols to govern use of body worn cameras. Body worn cameras are now being used by some members of the JCF. Earlier this year, INDECOM indicated that at that time it did not know what the protocols were; the public also does not know what the protocols are.
4. ACCOUNTABILITY IN JOINT OPERATIONS – A TRANSITION COMMAND PROTOCOL	15.34 “We recommend that the JDF and JCF fashion a transition command protocol that would be applied in instances of large-scale joint internal security operations.”	The JDF and JCF should give an update regarding the status of this recommended protocol.
5. STRENGTHEN OVERSIGHT OF THE JCF	15.35 “We recommend that they [INDECOM, PCOA & PSC] be strengthened in terms of their capacities to fulfill their functions effectively.”	The Government should give an update regarding measures taken to strengthen the capacities of INDECOM, the PCOA & the PSC.
6. OVERSIGHT OF THE JDF’S INVOLVEMENT IN POLICING OPERATIONS	15.36 “…to the extent that the JDF has become routinely involved in policing and is required to play a major role in internal security operations, it is our view that this aspect of their work, that is, their policing work, should be subjected to a greater measure of external civilian oversight.”	The Government should give an update regarding this recommendation to increase external civilian oversight of the JDF’s policing work . The JDF’s update would be relevant in this regard.
7. TACKLING THE GARRISON PHENOMENON	15.41 The Commission noted the establishment of a police post in Tivoli Gardens after May 24, 2010 and recommended “that this approach be replicated in those garrison constituencies where none presently exists.”     15.42 “In addition, since “de-garrisonisation” ultimately requires consensus among political parties, we recommend a. A bi-partisan approach leading to agreement towards the dismantling of garrison communities facilitated by an independent third party. b. A road map for “de-garrisonisation” should be handed over to an independent body similarly structured in composition to the Electoral Commission, to develop the details of the process.   15.43 In relation to “de-garrisonisation”, the Commission made several recommendations to do with allocation of resources, set out in (i) – (iii).	The Government should give an update regarding the recommendation to establish police posts in garrison constituencies which did not have one. The JCF update would be relevant in this regard.   The Government should give updates about the implementation of the recommendations regarding the process and the allocation of resources relating to “de-garrisonisation”.
8. ACTION RECOMMENDATIONS OF ECLAC	15.45 The Commission endorsed the recommendations made by ECLAC in its report on the impact of the May 2010 events in Jamaica.   15.46 The Commission also “endorsed the main conclusion of the report that a medium to long-term programme of rehabilitation and revitalisation of the affected communities should be developed in order to integrate those communities into Jamaican society.”   15.47 “As part of a programme for inner city renewal and development we recommend that the Government should vigorously pursue the private sector’s assistance by inviting them to embrace the Urban Renewal (Tax Relief) Act.”	The Government should give an update regarding the recommendations to do with “[s]ustainable development… in addressing the problems in the low-income urban areas.”
9. REVIEW AND REFORM OF THE CRIMINAL JUSTICE SYSTEM	15.48 “We recommend that there should be a thorough-going holistic review of the existing criminal justice system followed thereafter by appropriate administrative and legislative action.”	The Government should give an update regarding this recommended review.
10. AMENDMENT OF EXTRADITION ACT	15.50 “We recommend that section 8 of the Extradition Act be amended to make it mandatory that the Minister make a decision on authority to proceed within a finite time.”   15.51 The Commission made recommendations regarding not publicizing extradition requests and the Attorney General’s intention to sign the Authority to Proceed. Also recommended AG immediately informing the Commissioner of Police upon its execution.	The government should give an update regarding the recommended amendment to the Extradition Act.