Monday, March 3, 2014

Tivoli COE - Some Preliminary Concerns

The Government of Jamaica (GOJ) has announced the establishment of a Commission of Enquiry (COE) to enquire into the circumstances surrounding the armed confrontation between members of the Security Forces and armed civilians primarily in Tivoli Gardens/ Denham Town area on and around May 10, 2010.                                      
General Concerns

The announcement of the Tivoli COE has been accompanied by an admission that there is no budget as yet for the exercise and no scheduled commencement date. However, the Minister of Justice is hoping that the COE will start within the next 3 months, depending on the availability of the Commissioners.Such an usual mix gives rise to a number of concerns:
  • Given the "severe and resolute" financial conditions imposed by the IMF, budgetary provision for the Tivoli COE could prove to be a formidable challenge.
  • The timing also could be influenced by other factors e.g. the staging of the World Cup in June 2014 may postpone the COE until the last quarter of the year or even to the first quarter of 2015. Such would give credence to the JLP's claim that the Tivoli COE is a distraction aimed at presenting Tivoli and the JLP in a "bad light" for election purposes. 

The next General Election is constitutionally due in December 2016, with a possible 3- month extension.(however, the PNP has had a tendency to call such before the due date).
  • But perhaps the most worrying concern is the absence of the results of essential ballistic and other forensic investigations. That absence bedeviled the Public Defender from presenting a Final Report on his investigation into the said matter.

It can be forcibly argued that such absence will provide a perennial excuse for any finding of criminal accountability/ culpability for the 73 known deaths. In short, where is the forensic evidence that any of those deaths were caused by the action of any member of the Security Forces so deployed?

The availability of the results of the ballistic and other forensic investigations is an essential recondition for any meaningful COE.

  • Another fascinating omission from the TOR is the exclusion of an investigation of the role of the USA security apparatus before, during, and after the Tivoli incursion. It is public knowledge that a white espionage aircraft was observed flying overhead for sometime. It has been acknowledged that it was US aircraft which was involved in surveillance and had relayed aerial footage to ground command center.

The GOJ to date has not announced that it has made an official request to the relevant US authorities to make available such tapes. Given the passage of time and the apparent reluctance to launch an investigation into the role foreign security agencies, the public confidence in the usefulness of the said Tivoli COE remains shaky.

Panel Concerns

The GOJ has announced a three member panel with all having judicial experience. 

The concerns elaborated herein center around :

(a) the skill set of the panel;

(b) the nationality of the Chairman ; and

(c) the inclusion of a former Commission Counsel to a COE enquiring into the armed confrontation between the Security Forces and armed civilian in the Western Kingston Police Division in 2001.

(a) The Skill Set

It is being contended that 3 juris cannot comprehend the various and varied aspects of the military operation in Tivoli Gardens and East Kirkland Heights.

Clearly there is need for: 
  • the judicial mind to effectively manage the proceedings . A female juris to chair the commission  would likely result in a less combative tone (as opposed to that displayed in the " Manat Enquiry").
  •  a commissioner with training-- cum-- experience as a criminologist or political sociologist. Tivoli has been characterized as a political enclave, ghetto, garrison community with systems organized along lines fundamentally different from the rest of Jamaican communities.
  • a foreign security expert with specialized training/ experience in intelligence gathering & analysis, surveillance, and urban armed confrontation.

The exercise in Tivoli was a military operation and no doubt the security Forces are anxious to tell how they saved Jamaica, acted with considerable restraint and in so doing prevented the escalation of fatalities.

The questioning and analysis of the operations conducted by the Security Forces in Tivoli has to be the central focus of the COE. It cannot be a public relations exercise aimed at restoring the public's confidence in the Security Forces in general and the Jamaica Defence Force in particular.

(b) The Nationality of the Chairman

From all the information released about Sir David Simmons there can be no doubt that the learned gentleman is eminently qualified: having distinquished himself in politics, law, other commissions of enquiry, and the formation of  Caricom institutions. His competence is unquestioned.

However, Sir David Simmons is Barbadian! That is the emotion-laden and seemingly irrational concern.
  • To put it into its most charitable terms, the disrespect meted out to Jamaicans by the agents of the Government of Barbados has reached an intolerable scale in recent time.  
  • Traditionally, Jamaicans studying law were not granted student visas until a couple months before the expiry date of their course.
  • In recent times, Jamaican have been subjected to intense ( and derogatory) treatment by Barbadian immigration officials. The most degrading and inhumane treatment involved the compulsory " digital examination " of a Jamaican female.
  • Moreover, the Government of Barbados has yet to honour the ruling of the Caribbean Court of Justice ( CCJ ) in respect to the compensation awarded for violating the Treaty provisions regarding travel within the Community.

It is difficult to accept that the GOJ has seen it fit to appoint a Bajan to play an important role in Jamaican politics, given the recent attitude displayed by the Barbadian authorities. 

Make no mistake about it; if in the unlikely event of a replication of similar events should occur in Barbados , then no Jamaican -- no matter how competent or distinquished-- would have been considered to sit on such a COE, much less to be its Chair.

Some may be of the view that Jamaica has come a long way from looking for such expertise in England, USA , or Canada to utilizing that of Caricom . That may be true; however there is a considerable talent pool of Jamaicans who are eminently qualified to chair the Tivoli COE .

(c) The Naming of Velma Hylton as Commissioner

We have examined the role Hylton played as Commission Counsel in the West Kingston Commission of Enquiry ( known widely as the "Snoring Commission"). See Tivoli COE- Hylton Hiccups (1) & (2)

In short, we are of the view that it is a good idea that no one who played a central role in a previous COE investigating Tivoli and the Security Forces should be so involved in another.

Velma Hylton Q.C. played a central role as Commission Counsel and as such would have formed some perspectives on the roles played by the main actors. There is evidence to suggest that she advanced positions which were not substantiated by the evidence before the Commission , differed from that published in the findings, and may have promulgated her own impressions. And yes, she " eat- a - food". (See Tivoli COE-- Food @ Snoring Commission)

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