Listening to morning radio is a ritual for me and has been for decades. Last week I came across a tape I had made of a segment of the Breakfast Club broadcast on Thursday, February 28, 2002. I popped it into my cassette recorder (yes, I still have one!) to hear what I had recorded that day. It was a discussion about the West Kingston Commission of Enquiry of 2002, which had ended the day before.
The Breakfast Club, with hosts Tony Abrahams and Beverley Anderson-Manley (now Beverley Anderson-Duncan) was a very popular current affairs talk radio programme. I was sometimes an in-studio guest and the on-air discussions would sometimes continue off-air, which was really fascinating.
Listen to this short piece my son Alexis and I did based on this recording. I am trying out a new medium. Any feedback would be welcome! I am contemplating a podcast series based on the hundreds of tapes I have recorded over the years.
(I am trying to locate an electronic copy of the Commission of Enquiry’s report and will post it here once I find one.)
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 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
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.
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.
In 2000, the Jamaican government agreed to pay compensation to the so-called MoBay street people – homeless Jamaicans, many of whom were living with mental illnesses – who had been rounded up in Montego Bay on the night of July 14, 1999. They were taken by truck to St Elizabeth, where they were callously dumped near a mud lake in the dead of night. After the Commission of Enquiry, the government accepted responsibility and indicated that the sum of J$20,000 per month was to be paid to the victims of its abuse. One of the women who was subjected to this horrendous treatment, Miss Sarah, was subsequently interviewed by a reporter about the news of this compensation. She was asked how she felt about the money that the government would be paying her. Her response was that the money was all well and good, but up to that time no-one had yet come and told her sorry for the way she was treated.
When the state through its agents commits human rights abuses, there are many things that the state has an obligation to do as part of the process towards justice. This includes prompt and effective investigations, actions towards holding those responsible accountable, and steps towards reparation for those harmed by the abuse. An often overlooked step in the reparation process is that of apologising for the harm done.
IACHR & Michael Gayle
In 2005, the Inter-American Commission on Human Rights (IACHR) published its findings in the petition filed by Jamaicans for Justice (JFJ) regarding the death of Michael Gayle, the 26-year-old man who died after being brutally beaten by police and soldiers on the night of August 21, 1999. The Commission made a number of recommendations for action by the Jamaican state. Among those recommendations was that the state should make a public apology to Michael Gayle’s mother, Miss Jenny Cameron:
At the time, the Jamaican government said that it had issued an apology, but Miss Cameron and JFJ, which had made the petition on her behalf, disagreed. This raises issues about the nature of an apology given by the state, where and how it should be given and what it should say. Certainly, the person or people to whom the apology is given should be in no doubt that an apology has been made, nor should the community and country at large.
West Kingston, May 2010
Last week, Minister of Justice Delroy Chuck indicated that the government would within a matter of weeks be issuing an apology to the residents of West Kingston. This was one of the recommendations made in the report of the West Kingston Commission of Enquiry, released to the public in June this year.
Some people have again been asking, as they did at the time the report was released, “Apologise for what?” For some, the actions of the police and soldiers during the May 2010 joint security operation were completely justified and they feel that the state has nothing to apologise for. After hearing and examining the evidence put before them during the Enquiry, the Commissioners are of a different opinion.
It is the Jamaica Labour Party (JLP) that now forms the government that will deliver the apology in Parliament; it was the JLP that formed the government at the time that human rights violations were carried out in May 2010. Yet, if it had been a PNP administration in government now, they would have had the responsibility to deliver the apology nonetheless, as the state responsibilities continue, whichever party forms the government at a particular time.
A public apology is an important part of justice and reparation, but there must be no misunderstanding that it is all that is needed. There is much additional concrete action that needs to take place to fulfill the recommendations of the Commission of Enquiry and the state’s obligations for accountability (including accountability for crimes committed), for compensation and for measures that will prevent such an occurrence again.
In the section dealing with Reparations for harm suffered (IX), there is a list of principles which are necessary for full and effective reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Among recommended actions contributing to the principle of satisfaction is:
“Public apology, including acknowledgement of the facts and acceptance of responsibility.” 22.(e)
Public apology is there among the many facets to the provision of justice for those who have suffered serious violations of their human rights.
Apologise for what? The Jamaican state must apologise for the human rights abuses carried out by its agents.
May 24 will make 6 years since the 2010 joint security operation in West Kingston, which resulted in the death of more than 70 people, and by all indications the report of the West Kingston Commission of Enquiry will be submitted to the Governor General before then. It isn’t yet clear, however, when the report will be made public. It would certainly be fitting if that were to happen before May 24.
The last session of the Enquiry took place between February 8 – 19 (2016) and was to a large extent overshadowed by the political campaigning leading up to the general election on February 25.
The Commission held its first sitting on December 1, 2014 and held a total of 90 sittings over 15 months. It was presided over by three commissioners – Sir David Simmons (Chairman), Justice Hazel Harris and Professor Anthony Harriott.
Sir David A.C. Simmons K.A., B.C.H., Q.C., CHAIRMAN – Legal Consultant, Retired Chief Justice of Barbados
Justice Hazel Harris – Retired Judge of the Court of Appeal
Professor Anthony Harriott – Director, Institute of Criminal Justice and Security, University of the West Indies, Mona
former Prime Minister Bruce Golding, former Minister of National Security Dwight Nelson, former Attorney General & Minister of Justice Dorothy Lightbourne
former Chief of Defence Staff of the Jamaica Defence Force (JDF), Major General Stewart Saunders and other members of the JDF
former Commissioner of Police Owen Ellington and other members of the Jamaica Constabulary Force
former Public Defender Earl Witter, QC
other civilian witnesses, public officials and expert witnesses.
The release of the report will raise again for discussion the value of having had the Enquiry. In this regard, comments made by Lord Anthony Gifford, QC, who represented the Office of the Public Defender (OPD), are important; the comments were made on February 18, 2016, at the start of his final submissions to the Commission.
Seated behind Lord Anthony Gifford is Mrs Arlene Harrison-Henry, the current Public Defender
Lord Gifford thanked former Public Defender Earl Witter for having called for the Enquiry,and for his work on investigations towards that end. He then went on to address the Chairman on the importance of holding the Enquiry:
Mr Chairman, we are going to be urging that you and your colleagues make strong findings in relation to a number of human rights abuses. We hope and trust that your report will be a historic document, which will reduce or eliminate such abuses in the future. But Mr Chairman, I would like to say publicly to those who have had doubts about the value of this enquiry that already the process, which has happened over the last 90 days (but in fact, year and a quarter) has had in itself immense value. And I say that for three reasons.
First of all, it has shown that an event which has cost around 70 lives in one operation cannot be swept under the carpet. It is legally a part of the duty of the state under the right to life, that when life is taken by agents of the state there must be a full and impartial enquiry. So that what has been done was necessary by the Constitution and by international principles.
And in the holding of it and the managing of it, I pay tribute to the even-handedness of you, Mr Chairman, and the intense interest, dedication that you all have shown, especially, may I say, at times when the argument has been robust or the scenes have been emotional. And coupled with thanks to you, I would thank your Secretary and all her staff for the efficient assistance which they have given.
It’s not just a question of law. The second value of the process so far has been that voices, it has enabled the voices of the residents, many residents of Tivoli Gardens to be heard. These are voices which are normally not heard but they have been heard over the last year, the length and breadth of Jamaica and further afield. And I thank the members of the media who have enabled the transmission of these hearings, to all those (and there are many) who have watched them or listened to them in their workplace or their homes. And those voices have been the heart of this enquiry. I would like to pay tribute to the courage of the civilian witnesses, who came forward, re-living the pain of their experiences as they spoke about the loved ones who are here no more. And I say to those witnesses, without your participation, this enquiry would have had little or no value.
Mr Chairman, thirdly, it has been valuable because this enquiry has required those who hold and have held some of the highest offices in the land to come here, account for their actions and be subjected to severe and intense questioning and scrutiny. That does not usually happen. People like the Chief of the General Staff and the Police Commissioner don’t often have to answer questions in justification of what they did. And the exercise has been very revealing. And that is why I wanted to say that, quite apart from the contents of your report, what has happened already has had value in recognizing the pain, the trauma and by re-living it and questioning it to make it bring some kind of understanding and, in due course, we hope closure.
(Transcript made from February 18, 2016 broadcast of Enquiry)
The Submissions and Recommendations made by the OPD are posted on its website, which is welcome and useful. The OPD’s April 2013 Interim Report to Parliament is also available on the site.
Horace Levy has written an article summarizing the OPD’s Submissions and Recommendations, which can be accessed here.
The West Kingston Commission of Enquiry is part of a process. The publishing of the report will not signal the end of that process. It is one more step or milestone in a much longer journey towards accountability and justice for the largest loss of life in a single security operation in Jamaica since Independence (indeed, since the Morant Bay Rebellion in 1865, though some object to this reference).