Thursday, December 11, 2014

Tivoli COE: Some Churches not into Accountability?

  • Are some Churches unconcerned with those responsible for the May, 2010 military operation which inter alia resulted in the deaths of more than 76 persons?
  • Are some churches primarily concerned with the state paying compensation for the damage and loss suffered by the residents of Tivoli?

In a letter to the Editor, Gleaner, published Thursday, December,11, 2014, written by the Rev. Orville H. Ramocan, Director in the Office of the President, Independent Churches of Jamaica (ICJ), the position of this group  on the Tivoli Commission of Enquiry is stated:

"ICJ believes that whoever was responsible for the physical violation of these poor people is irrelevant at this point in time. The reality is, the conditions and cause for these violations were created by the State. The State must now make every effort to bring healing and restoration to a community that has experienced much suffering. If this enquiry is not about helping the victims to pick up and start over with some sense of dignity, then the exercise will mean nothing to them."

One fully recognises that any grouping in the society has a right to select and advocate any position that its membership so desires. The ICJ is rightly concerned with the lives and welfare of the victims of the military operation in Tivoli in May 2010. 

  1. We submit that the matter of state compensation is not a matter to be investigated and settled by the Tivoli COE as presently constituted.
  2. The claims submitted need to be investigated in a manner similar to that undertaken in processing claims on insurance companies.
  3. The public airing of estimated and primarily unsubstantiated claims and the recording of such by the Commissioners gives rise to the expectation that, without more, such claims will be settled by the state in toto and promptly.
  4. The claimants making public their financial predicament open themselves not only too the tax authourities ( formal & informal) but parasitic elements who will demand a "cut". 
  5. The then Public Defender had indicated that the written claims submitted/collected were being processed by a cadre of volunteer attorneys. We are of the view that this is a most suitable mechanism in light of all the circumstances.

Surely the ICJ cannot be of the view that whilst the matter of financial compensation is addressed then that it the end of the matter. From the evidence so far , the state sought to make some redress-- although insufficient to rehabilitate the victims. Given the constrained financial space the GOJ finds itself, is it likely that the recommendations for the payment of financial compensation can be settled in the near future? Is there an obligation imposed on the GOJ to fully investigate such claims before allocating taxpayers' money? Are all losses incurred at during the incursion attributed solely to the state agencies?

Why are "the persons responsible for the physical violation of these poor people irrelevant" at this or any other point in time? In the view of the ICJ when, if ever, will " whoever was responsible"  be identified and held to account?  If the state can damage , violate and repay, then what is to prevent a recurrence of the said actions? The ability to pay?

Wednesday, December 10, 2014

Tivoli COE: Tivoli's Audacity to challenge the JDF

" In the end, the incursion into Tivoli played out like a well written movie script. The army surgically wrestled the community from the grasp of the criminal elements that had imprisoned its residence and had the audacity to challenge the government and by extension, the law enforcement agencies of the state."

That is an excerpt from a book written by a former JDF Officer, Major Stanley P. Ford ( Ret) entitled "Core Values : A Soldier's Story". Interestingly, the Introduction is by
Stewart Saunders Major General (Retired ) CD, JP, MSc, psc 
Chief of Defence Staff 
Jamaica Defence Force 
21 January 2012

 The view expressed by Ford must be given tremendous weight; and to some extent reflects the perspective of those in the officer corp of the JDF at the time. The then Chief of Staff would have sought the correction of any egregious error in any account of what was a catastrophic exercise. In fact Saunders reinforced the veracity of the account given by stating:

" This work gives a highly factual account of military service and the story is told with passion and humour."

  • Will the Tivoli Commission of Enquiry get around to exploring this perspective and investigate how such may have influenced the treatment of the remaining residents of Tivoli ?
  • Before the deployment of troops, were they advised that they were about "to go to war in Tivoli and some might not return"?
  • Was The JDF full mobilized and put on a war footing for the  Tivoli Gardens incursion?

The most disconcerting of the quote is that "the incursion into Tivoli played out like a well written movie script." It will be interesting to ascertain exactly who were the "scriptwriters", "main actors", "supporting cast" and the "games played" that ultimately involved the death of more than 76 persons.

Let us view closely the "screen credits."

Tuesday, December 9, 2014

Tivoli COE: Full Disclosure and Inquisitorial Approach needed

The following in the unedited version of a letter written by (Ret.) Col. Allan Douglas which was published in the Jamaica Observer, Tuesday, December 09, 2014 titled "Not too late to salvage integrity from Tivoli commission"

Dear Editor,
With the commencement of the Tivoli Commission of Enquiry into the shooting deaths of 76 Jamaicans by the security forces in May 2010, the Jamaican Government faces one of its biggest tests in terms of integrity, transparency, and ensuring the just and equitable administration of the law. However, early indications are that the commission could easily turn out to be a farce, and that the hopes of Jamaicans that the government will ensure a just and meaningful outcome through an impartial investigation by the Tivoli COE could end up in tatters.
For the past several months, in letters to this newspaper, I have called for a fair and just investigation into the events that happened in May 2010. Along with several other Jamaicans, our call has been primarily for transparency, honesty, impartiality and integrity.
But at this early stage of the Commission I fear that these calls may not be heeded. And if they are not, the government and the security forces will undoubtedly lose credibility and the public’s confidence in the rule of law.
It is now obvious that the COE has been set up to conduct its business in an adversarial manner instead of an inquisitorial one, which is the global standard for commissions of enquiry of this nature. The adversarial format is of course associated with normal court trials. It therefore appears that we are in for a legal contest between opposing parties, and the commissioners at the end of the day will have to rely on only that evidence provided by the opposing lawyers or parties, and then decide on who has won the legal contest, possibly without establishing the truth! At present,  it seems the legal contest is seriously lopsided or has been muffled.
I believe it is not too late to change the format of the proceedings into an inquisitorial tribunal, and would respectfully urge the distinguished and experienced chairman to seriously consider this proposal. After all, the point of the commission is to unearth the truth behind the events that caused the deaths of 76 Jamaicans and how to prevent a recurrence.
I would also encourage the present leadership of the JDF to preserve its legacy of transparency and truthfulness, even under the most difficult conditions, by turning over every single bit of evidence and ensuring that any evidence that has been unearthed in investigations to date be presented to the commission as soon as possible.
I will continue to maintain that an impartial and independent outcome of the Tivoli inquiry would ensure the public’s future confidence in the  JDF as a responsible, ethical force that puts its people’s interests before its own. In this regard, the JDF’s attitude to the proceedings is of paramount importance. Any attempt at deception or cover-up could end up in the loss of credibility and trust many Jamaicans still have for their military men. Forget about the loss of ‘friends’ because you stood up for transparency and truth, because in old age the best friend you can have is a conscience you are able to live with!
I appeal to the Chief of Defence Staff (CDS) of the JDF, who I know to be an honorable man, to disclose to the COE whether he or any of his officers made the alleged remarks prior to the Tivoli incursion of May 2010 that “…the problem with these people and Jamaica, for that matter, is that they have never really seen the JDF on a war footing, fully mobilized and in action..” and “…tonight we go to war in Tivoli and some of you might not return…” Given the training of the JDF and the situation existing in Tivoli, it is important to establish the veracity of these alleged remarks, and if they were made, whether they had a bearing on the tragic outcome of the operation.
If the hair on the head of one innocent civilian, whether he refused to be evacuated or not, was harmed due to so called “collateral damage,” then the JDF has a responsibility to declare that the operation was a failure or was ill-conceived. I am not aware of the police training doctrine, but I beseech the JDF not to allow its lawyers to advance the argument that Tivoli had been well barricaded and the people were armed to the teeth with all manner of high-powered weapons, and that embedded ‘terrorists’  were going to fight to the last man, woman and  child. I also aver that it was acceptable for the troops to conduct themselves in a manner that was contrary to military doctrine and training. To suggest that the JDF had no other choice but to storm into Tivoli, remove the barricades and ‘recapture lost territory’, in the process killing 76 civilians, is as frivolous as it is tragic. To me as a military man, seeking justification for killing women and children because they were being used as human shields by gunmen is sick.
I know that most military forces, including the JDF, are trained to deal with scenarios similar to the one in Tivoli. The nature of that type of operation calls for great restraint and discipline and there is no “storming Norman” “shock and awe” solution for that type of operation. In addition, it calls for good intelligence, sound planning, and meticulous and disciplined execution with well-trained and well-led troops. Likewise, whereas lawyers and the civilian public might accept that firing mortars as a deception or diversionary plan might sound quite acceptable, to a trained military person such actions in a built-up urban area are irresponsible and unthinkable. 
It is very important that in this relatively young country the integrity of our institutions be preserved and strengthened. Integrity, however, can never be preserved in Jamaica if our fledgling institutions are not held up to close scrutiny/investigation and publicly made accountable for their actions. I know, for instance, that many regard public institutions as some sort of sacred cow, and that criticism of these institutions, especially by serving or former members, is perceived as an act of disloyalty. I hold no such apprehension, and maintain that those who condone or wish to cover up some misgivings are in fact being disloyal to such institutions because, ultimately, the very fibre of the institutions they mistakenly seek to protect will be weakened due to the loss of integrity.
If we truly love and value the future of our country, we must demand full disclosure. We should dismiss any scenario in which the truth is camouflaged by the persistent assertion that “for security reasons information cannot be provided.” We know that’s a lot of rubbish, and once again, such an assertion should be treated as nothing less than an expression of disloyalty that is not in Jamaica’s security interests. This inquiry, therefore, should not put individuals on trial or subject witnesses to humiliation and intimidation, but unequivocally and transparently seek the truth. Here is a wonderful opportunity to instil the public’s confidence in inquiries of this nature by conducting it with integrity and objectivity, and not merely follow the usual pattern of two opposing legal teams waging war against each other, while the majority of disenchanted Jamaicans look on in disgust.
Yours faithfully,
Colonel Allan Douglas

Saturday, December 6, 2014

Tivoli COE: Fault in Focus

We are of the considered opinion that the Tivoli COE should be state-centric rather than victim-centric. By that we mean that the focus should be concentrated of the activities of agents of the state in the debacle and not the welfare of the victims. This might appear cold and indifferent to the trauma and agony resulting in the deaths of 76 or more Jamaicans allegedly at the hands of agents of the state.

In support of that position we contend that the process of discerning the" truth" is probably best dealt with in three (3) distinctly different spheres:

       1. There needs to be a forum in which victims and eye-witnesses  can tell their stories as how they remember it and in their own words. They would do this in groups of their peers who were in close proximity at the material time. Such would facilitate some "correction" and the filling in of blanks in the memory. This exercise would allow them to vent, receive counseling, and ultimately assist in the healing process.

No attorneys should be present.
Only those trained in the appropriate skills should assist in eliciting the information So there would be psychologists, psychiatrists, social workers, clergy, mediators and the like.
These sessions could be recorded and analysed by those with the appropriate training and experience. 

         2. The matter of compensation is foremost in the minds of those who have suffered loss/damage to property, incurred expenses directly as a consequence of the invasion/siege/ armed conflict ( eg medical expenses), and loss of income due to personal injury or restricted movement.

The validity of such financial claims would be subject to the investigation done in processing insurance claims. Such is not conducive to public hearings or public cross examination by Attorneys. The attorneys would be involved after the investigatory work has been concluded.

The Public Defender in the Preliminary Report referred to  such work being in progress with a cadre of volunteer attorneys processing the submitted claims. This needs to be expedited and not replicated by the Tivoli COE.

Indeed not only should the Chairman make it abundantly clear to witnesses in the enquiry but should prevent Attorneys from pursuing that line in examination in chief or cross on the basis of not being relevant.

              3. There needs to be an meticulous investigation into the role of state agencies during the TG episode.
 Since it was a military operation  the activities of JDF should be the central focus of the Tivoli COE.
There is need to expose the role played not only be the security forces but also agents from the Ministries of Health, Labour & Social Security, National Security, the ODPEM, the JCF. The operational assistance by foreign agents must be clarified.

Emphasis should be placed on the information that informed the decision- making process, the operational aspects--its failures & successes. The decision makers  and operational officials should be called upon to account.
Documentary evidence must be made available with the appropriate "National Security" considerations. 

A COE is the appropriate mechanism to ferret out this "truth". The Tivoli COE must call upon the then Public Defender to justify his published findings and facilitate his responding to the JDF elucidation  of those misunderstandings, misinformation, and erroneous conclusions.

From the state-centric perspective, the aim is to mitigate, as far as is possible, any recurrence of this debacle. 

Tivoli COE: Confounded, Convoluted or Confused?

The Tivoli COE has ended its first week of sittings. Some interesting observations:

* Having advertised for witnesses to come forward and give statement to the Secretariat, the Chairman is faced with an unexpected flood of potential witnesses--anxious to tell their stories. 

There are powerful motivational factors at work:  the extensive media coverage ;  the impression that such appearance will put their financial claims in good stead; the need to bring to public attention the trauma suffered and the hesitancy of the state in making compensation; the physical destruction remaining as a constant reminder.

The Chairman is of the view that all the witnesses cannot be accommodated within the 3- month limit. Hence there is the need for an extension and supplementary budgetary allocation.

*The situation is further compounded by the COE not displaying a sense of urgency.

Originally, it appears that the sittings were to be spread over a longer period  but totaling some 12 weeks, Moreover, the Attorneys have indicated, and the Chairman has accepted, that sittings should commence at !0:00 am ( instead of 9:30 am) and end on Fridays at 1:00 pm ( instead of 4:30 pm ). There is no work to be done on weekends or in the nights,

The rationale is that the Attorneys have to attend to office business before they attend sittings and moreso on Friday afternoons. It can be suggested that there is no hurry as the GOJ has waited over 4 years---much shorter than the Guyana COE into the death of Walter Rodney.
There goes the whole idea of "Flexi-workweek".

*There has been an over reliance during cross-examination on inconsistencies, omissions, contradictions, and damning revelations in recent witness statements. This has been highlighted to cast doubts on the credibility of the witnesses.

There is the subterfuge that the earlier statement was indeed true as the events would have been fresher and the most important elements would have been recorded sooner rather than later. The legal terminology is "recent fabrication" occasioned by malice, greed, fraud, ill- will, partisan politics and the like.
To make matters worse, the Attorneys are not even accepting the "truth" of the earliest statements, Neither have they presented the "truth" of what occurred, according to their clients" instructions. In reality, the cross-examination is  destructive in the sense of attacking the veracity of the witnesses and not concerned with ferreting out the truth.

There is the presumption that cross examination of traumatised individuals after some 4 years will somehow assist in discerning what exactly they experienced.  Attorneys are not equipped with the skill set required to elicit such information from these victims.

*One cannot help but wondering if the Chairman has made it abundantly clear that this COE is not concerned with authenticating the various financial claims that have been made.

*Given that the Tivoli intervention was primarily a military operation, one would have expected that the military operatives would have been the first to give their account. The JDF Report ought to have been published prior to the start of the hearings of the Tivoli COE.

Having opted not to do so, then it would have been appropriate for the Chairman to request that Security Forces place their cards on the table at the start of the proceedings.  

The JDF has "dissed" the account contained in the Preliminary Report of the then Public Defender stating publicly that it contained "numerous unfortunate conclusions drawn on the basis of unsubstantiated allegations, misrepresentation and uninformed analysis" (  see Tivoli COE: JDF vs. The Public Defender )

Monday, December 1, 2014

Tivoli COE: Terms & Conditions For Enquiry

Set Up Three-Month Enquiry For Tivoli - Ashley

Published: Tuesday | May 14, 20137 Comments
The following was published in The Gleaner on May 14, 2013. 
We have taken the decision to post it on Dec 1, 2014 -- the commencement of the Tivoli COE.


Edmond Campbell, Senior Staff Reporter
ATTORNEY-AT-LAW DR Paul Ashley is of the view that under colonial rule if "76 mongrel dawgs and a puss" had been killed, a commission of enquiry would have been promptly established, let alone 76 humans.
His comments come as the Portia Simpson Miller administration mulls decisions on the terms of reference for the proposed enquiry and the selection of commissioners to carry out the task.
Ashley, in a Gleaner interview yesterday, suggested a panel of three commissioners headed by a retired judge.
The attorney wants a deadline of three months to complete the enquiry and noted that the panel should be allowed to submit an interim report before completing the final document.
To avoid delays and possible cost overruns, Ashley said the enquiry should be conducted in the mornings, nights and weekends if necessary.
In terms of sequencing, the attorney suggested that the enquiry start from the surrender of former Tivoli Gardens don, Christopher 'Dudus' Coke, to the Keith Clarke killing, and then to the Tivoli operation.
However, Ashley made it clear that there was no need to reinvent the wheel in terms of Public Defender Earl Witter's extensive report.
"The commission of enquiry should not attempt to retrace or replicate the work of the public defender," Ashley said, adding that it should complement his investigation.
avoid culpability
He cautioned that the proposed commission of enquiry should avoid delving into the culpability of members of the security forces in relation to persons killed during the operation.
"We don't know who shoot who. The only way we can get this information is via the forensics. The proposed commission of enquiry must avoid trying to go into the culpability based on forensics because the forensics are not yet in," he said.
He pointed out that matters dealing with criminal culpability should be turned over to the DPP.
Ashley wants the focus of the enquiry to be state-centric, looking at the options considered by the decision-makers, the intelligence informing such decisions, the challenges real or imagined faced by the security forces and the operational imperatives.
"The ultimate aim is to ensure that appropriate mechanisms and systems are put in place to mitigate as far as is possible any recurrence of this debacle," he added. 
Ashley's critical queries for the Tivoli commission of enquiry
What factors prevented the apprehension/detention of Coke even as a suspect?
Could Coke have been apprehended outside of Tivoli before the decision was made to extradite him?
Was the blunt Tivoli intervention the only option considered?
What intelligence information determined the manner of the assault?
What factors informed that decision and what was the intelligence?
What was the role of the United States in providing surveillance?
From how early was the so-called US spy plane here, and did it operate before May 24 when the Jamaican Government formally requested its intervention?
Was Christopher 'Dudus' Coke tipped off and by whom?
Did the security forces track Dudus from Plantation Heights right into Tivoli and could they have stopped him?
Could the massacre have been prevented?
When were the security forces informed that Dudus was no longer in Tivoli and did they have any means of tracking him to where he went for refuge?
Where was Dudus tracked to?
Was Dudus provided safe housing?
What was the ongoing relationship between Rev Al Miller and the security forces?
What were the mechanisms and arrangements for detainees and processing?
Were they treated in a humane fashion and what were the monitoring mechanisms and supervisory roles and functions and who were in charge?
Did the state provide medical assistance where necessary?
Did the state implement measures to secure property in Tivoli?
Was there pillage by the security forces?
What factors account for the non-response to the Keith Clarke's wife's call for help on 119?